' ALI AKBAR QURESHI, J.---This civil revision is directed against the judgment and decree dated 13.05.2016 and 14.09.2015, passed by the learned Courts below in the suit for declaration filed by the respondents.
2. The controversies of the instant case, which require resolution, are as under:-- i. Whether the property could be alienated by way of a gift through an attorney? ii. Whether, in the lifetime of the owner of the property, a gift could be made without his consent or permission?
3. The necessary facts for the adjudication of this revision petition are, that a suit for declaration was instituted by one Muhammad Amin, predecessor-in-interest of the parties to the case and owner of land, challenging the validity of a general power of attorney dated 21.05.2001, registered on 29.05.2001 and in result thereof, a gift deed made on the basis of general power of attorney, on the ground of fraud and misrepresentation. It was contended in the suit, by Muhammad Amin (now deceased), owner of the suit land, that he never made any general power of attorney nor any permission was granted to his daughter, namely, Mst. Zainab Khattoon for the transfer of the land by way of gift in favour of her son Mukthar Ahmad.
4. The suit was contested by the petitioner/defendant through written statement wherein the claim of the respondent No, 1/plaintiff was refuted on legal as well as on factual grounds. The learned Trial Court, after completing all the legal and codal formalities, decreed the suit. Against which an appeal was filed by the petitioner which was dismissed, hence, this revision petition.
5. Learned counsel for the petitioner contends, that the general power of attorney was validly executed by deceased Muhammad Amin in favour of his real daughter, namely, Zainab Khatoon, predecessor of the petitioner, who subsequently transferred the suit land by way of gift in favour of her son, therefore, no illegality was committed and both the learned Courts below have failed to advert to this aspect of the case.
6. Heard. Record perused.
7. In response of the arguments advanced by learned counsel for the petitioner, a specific question was put, as to whether a gift can be made by an attorney or the love and affection in the case of making the gift can be conveyed or expressed by any other person including the attorney. The learned counsel could not offer any satisfactory reply nor any law but reiterated her earlier arguments. On this proposition, the Hon'ble Supreme Court of Pakistan has already ruled, that the love and affection, in case of making a gift cannot be conveyed or expressed through any other person including the attorney. The sentiments of love and affection must be established on satisfactory and unimpeachable evidence. I am fortified by the judgment delivered by the Hon'ble Supreme Court of Pakistan cited as Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCMR 818). The relevant part of the judgment is reproduced as under:-- "It is to be kept in view that a gift in the present case was allegedly leased on consideration of love and affection of Said Nawab for his daughter .Mst. Gulzar Begum. Love and affection cannot be expressed by any attorney on behalf of the donor. The sentiments which were the consideration for gift in the present suit must be established to have come from the donor. Gifts are voluntarily and gratuitous in the present suit transfer from the donor to the donees. The essential of these transactions are, the capacity of donor, intention of donor to make gift, complete delivery of the gifted property to the donee and acceptance of gift by donee. In order to establish a valid gift of the property by the donor in favour of the donee where gift is made through a person authorized by the donor, the intention of donor to make the gift must be established in clear terms. In such a case the authority given by the donor in favour of another person to make a gift of his property besides containing the power to make the gift must also clearly specify the property and the donee in the case. In the case before us gift made by Said Ghawas in favour of his wife Mst. Gulzar Begum on the basis of the power of attorney executed in his favour by Said Nawab cannot be upheld for two reasons Firstly, the power of attorney executed in favour of respondent No,2 by the deceased Said Nawab did not contain any specific provision authorizing him to make a gift of his properties and secondly, even if we assume that such power was given, there is no indication in the said document that the donor intended to make gift of all his properties in favour of the wife of respondent No,2 (the donor)."
8. In another judgment cited as Haji Faqir Muhammad and others v. Pir Muhammad and others (1997 SCMR 1811) the Hon'ble Supreme Court of Pakistan, while interpreting the general power of attorney has observed as under:-- "7 ... ... ... The sentiments which were the consideration for gift in the present suit must be established to have come from the donor. Gifts are voluntarily and gratuitous in the present suit transfer from the donor to the donees. The essential of these transactions are, the capacity of donor, intention of donor to make gift, complete delivery of the gifted property to the donee and acceptance of gift by donee. In order to establish a valid gift of the property by the donor in favour of the donee where gift, is made through a person authorized by the donor, the intention of donor to make the gift must be established in clear terms. In such a case the authority given by the donor in favour of another person to make a gift of his property besides containing the power to make the gift must also clearly specify the property and the donee in the case."
9. In a judgment cited as Muhammad Jatil and 4 others v.
' Muhammad Sami and 8 others (PLD 2006 Lahore 619), this Court has 'observed as under:-- "10. We have heard the learned counsel for the parties. As far as the question about the delegation of power by a Muhammadan to an agent is concerned, there can be no cavil that a Muhammadan, in the matters of gifts, divorce etc. Can confer the authority to an agent, but in our view where it is the personal act of the principal, which is dependent upon his own mental decision, such an authority cannot be delegated. In the category of such personal acts, obviously the decision to whom the gift should be made, cannot be left for the choice and whim of the agent, rather this is the sole prerogative of the donor, which cannot be delegated or deputized, however, when the decision is taken, a declaration is made by the donor, only thereafter an agent for the accomplishment of the object can be appointed. A Muhammadan cannot confer upon his agent a random or roving authority to make the gift of his property to any person of the attorney's choice and according to the agent's wish and the considerations. This is because a gift is a voluntarily transfer of the property to another made gratuitously and without consideration; it is a transaction not in the nature of quid pro quo, but is free of the above, therefore, why and to whom the gift should be made is based upon the very personal and self-considerations of the donor, structured upon his personal state of mind and the decision and therefore, under no rules of general law of agency, such personal decision can be delegated to an agent. We are quite clear in our view, that the donor has steps for the proper implementation/execution of the transaction."
10. Reliance is also placed on Haji Faqir Muhammad and others v. to make the gift himself, where after he can confer the authority upon his agent to take necessary Pir Muhammad and others (1997 SCMR 1811), Noor Muhammad v. Abdul Ghani (2002 CLC 88), Muhammad Arif v. Malik Muhammad Farooq and 4 others (2002 CLC. 1361), Maqsood Ahmad and others v. Salmon Ali (PLD 2003 SC 31), Jamil Akhtar and others v. Las Baba and others (PLD 2003 SC 494), Mst. Bandi v. Province of Punjab and others (2005 SCMR 1368), Muhammad Boota through L.Rs, v. Mst. Bano Begum and others (2005 SCMR 1885), Mst. Parsan Bibi and another v. Mst. Razia Bibi and 10 others (2006 CLC 1893), Muhammad Jalil and 4 others v. Muhammad Sami and 8 others (PLD 2006 Lahore 619) and Syed Shabbir Hussain Shah and others v. Asghar Hussain Shah and others (2007 SCMR 1884).
11. To further appreciate the record of the instant case, the contents of the gift deed (Exh.D.W.1) were perused with the assistance of the learned counsel for the petitioner, wherein the attorney (mother of the petitioner)/respondent No,5 claimed herself the owner of the suit property on the basis of general power of attorney dated 29.05.2001 and transferred the same in favour of her son (the petitioner). The gift deed (Exh.D.W.1) is completely silent about the consent or permission of the original owner i,e, Muhammad Amin deceased, therefore, this is sufficient to refute the contention of the learned counsel for the petitioner, that the permission to make the gift was granted to the attorney (respondent No,5).
12. As regard the claim of the respondent No,5, that she transferred the suit land by way of gift in favour of her son being owner of the property, the general power of attorney was examined and found, that nowhere it is mentioned in the power of attorney, that the respondent No,5 (mother of the petitioner) has become the owner of the suit property and even otherwise, ownership or title of a property cannot be transferred or conveyed by way of general power of attorney in favour of attorney, therefore, respondent No,5, by playing fraud and misrepresentation, made a gift of the suit land in favour of her son which is against the law and the verdict given by the Hon'ble Supreme Court of Pakistan in plethora of judgments.
13. There is another most important aspect of the case, that suit for the cancellation of power of attorney and gift deed was filed by the real father of the mother of the petitioner (respondent No,5), who allegedly made gift in favour of respondent No,5. This aspect of the case has in fact completely demolished the case of the petitioner.
14. The nutshell of the aforesaid discussion is that the petitioner has completely failed to prove the genuineness of the gift deed made in his favour through any law or evidence, therefore, both the learned Courts below have not committed any jurisdictional defect or legal infirmity. Even otherwise, the concurrent findings, as observed by the Hon'ble Supreme Court of Pakistan, should not be disturbed in routine but in extraordinary circumstances. Reliance is placed on Cantonment Board through Executive Officer Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469) and Noor Muhammad and others v. Mst. Azmat-e-Bibi (2012 SCMR 1373).
15. Resultantly, this civil revision, having no merits, is dismissed in limine with no order as to costs.