ZULFIQAR AHMED KHAN, J.----This revision impugns the judgment of the appellate Court passed in Civil Appeal No.131 of 2013, by learned 9th Additional District Judge, Hyderabad, filed by respondent. No.3 Salahuddin, who was defendant No.8 in F .C. Suit No.43 of 2009.
2. Concisely , facts of F.C. Suit No.43 of 2009, filed by Abdul Hameed and others, for Declaration, Cancellation, Partition, Separate' Possession and Permanent Injunction, are that House No.2, Block-C/2, situated at Unit No.8, Latifabad, Hyderabad, consisting upon four shops on the ground floor, residential units on first and second floors, was owned by father of the plaintif fs and defendants Nos.1, 3 to 7, who appointed defendant No.1 as his attorney vide registered General Power of Attorney No.640 dated 30.12.1998 in respect of the said house. Father , the owner of the said house expired on 13.03.2000 and thereafter on 13.05.2000 and 16.05.2000, plaintif fs moved applications to defendant No.9, besides having published notice in daily Urdu newspaper "JURA T" Karachi dated 15.05.2000 for the intimation of death of deceased Abdul Majeed to people at large with caution that aforesaid General Power of Attorney in favour of defendant No.1, had lost its sanctity on the death of its executant. Where- after in May, 2018, plaintif f No.1 heard that defendant No.1 has transferred the suit property in favour of his wife/ defendant No.2 on the basis of the said General Power of Attorney by executing a Sale Deed in connivance of Sub- Registrar , Latifabad, Hyderabad and said defendant No.2 shortly thereafter , sold out the property to defendant No.8 under registered sale deed No.1343 dated 23.05.200; hence, plaintif fs instituted the civil suit with the following prayers: PRAYER
(a) To partition the 3 (three storied) suit property bearing H.No.2 Block-C/2 Unit No.8 Latifabad, Hyderabad by metes and bounds amongst the legal heirs of late Abdul Majeed shown in Para (2) of the plaint and to put them in separate possession to the extent of their shares under Muhammadan Law of inheritance and in case it is not possible, then it may be sold through open auction and its sale proceeds be distributed amongst them, as per their shares;
(b) to declare that after the death of Abdul Majeed son of Muhammad Ismail on 13.03.2000 the general power of attorney executed by him in favour of defendant No.1 on 30.12.1998 automatically stands cancelled and become dead, ineffective and inoperative in the eyes of law and as a result the defendant No.1 remained no more general attorney of late Abdul Majeed after 13.03.2000 and was not competent to execute the sale deed on 30/31.1.2008 in favour of his wife (defendant No.2);
(c) to declare that execution of sale deed by the defendant No.1 in favour of defendant No.2 on the basis of the above said general power of attorney dated 30.12.1998 and falsely and fraudulently showing it executants i.e. late Abdul Majeed as alive on 30/31.01.2000 is illegal, bad void ab initio, mala fide, in operative without any lawful authority and did not create any lawful right, title and interest of the defendant No.2 in the suit property and the same deserves cancellation:
(d) to declare that the subsequent execution of sale deed by the defendant No.2 in favour of defendant No.9 on 23.05.2008 on the strength of the above said sale deed dated 31.01.2008 executed by the defendant No.1 in her favour on behalf of late Abdul Majeed by falsely showing him alive, is also illegal, bad, void ab initio, mala fide, inoperative without lawful authority and does not create any lawful right, title and interest of the defendant No.9 in the suit property and the same also deserves cancellation;
(e) to declare that after the death of late Abdul Majeed on 13.03.2000 the suit property stands developed upon his legal heirs viz. plaintif fs and defendantNos.1 and 3 to 7 named above to the extent of their shares under law of inheritance;
(f) to declare that after public notice in daily Jurrat Karachi dated 15.05.2000 regarding death of late Abdul Majeed, the registration of sale deed Nos.216 dated 31.01.2008 and 1343 dated 23.05.2008 by the defendant No.1 are illegal, bad void ab initio, mala fide inoperative in excess of his power and without any lawful authority;
(g) to restrain the defendant No.8 from transferring, alienating, exchanging and creating third party interest in the suit property , restraining, defendant No.10 from receiving and registering any sort of documents in respect of suit property and also restraining the defendant No.9 from changing the name, of late Abdul Majeed in his decision of the above suit.
3. To the contrary , defendants Nos.1 to 7, contested the suit by filing written statement, while admitting the execution of General Power of Attorney in favour of defendant No.1, but asserted that the father (Abdul Majeed) had orally gifted the suit property to defen dant No.1 in the presence of all sons and daughters, who also mortgaged the suit house by obtaining loan; suit property was transferred by defendant No.1 in favour of defendant No.2 on the advice of plaintif fs and other legal heirs of late Abdul Majeed on the basis of General Power of Attorney and that defendant No.2 sold out the suit property to defendant No.8 by distributing due shares to the plaintif fs.
4. Defendant No.8/appellant in Civil Appe al No.131 of 2013 in his written statement asserted that suit property was purchased by him from Mst. Shazia, wife of defendant No.1 for consideration of Rs.30,00,000/- and possession of the same along with original documents was handed over to him and that he was unaware of the background of the previous transactions.
5. Out of the pleading of the parties, learned trial Court settled the following issues:- ISSUES
1. Whether suit property viz: (three) storied House No.2 Block-C/2 Unit No.8, Latifabad, Hyderabad was owned by late Abdul Majeed, who died on 13.03.2000, which was devolved upon -the plaintif fs and defendants Nos.1(3) to (7) under Muhammadan Law?
2. What will be the fate of registered special pwower of attorney dated 30.12.1998 executed by late Abdul Majeed in favour of defendant No.1 in respect of suit property?
3. Whether registered sale deed executed by defendant No.1 in favour of defendant No.2 on 30.01.2008 on behalf of late Abdul Majeed on the strength of his general power of attorney dated 30.12.1998 is valid, lawful, effective, operative and binding upon the plaintif fs and created any lawful right and title of the defendant No.2 in the suit property?
4 Whether sale deed dated 30.01.2008 in favour of defendant No.2 was executed by the defendant No.1 by misrepresentative and fraud? If yes, what is its ef fect?
5 Whether registered sale deed dated 23.05.2008 executed by defendant, No.2 in favour of defendant No.8 is valid, lawful, effective, operative and binding upon the plaintif fs and created any lawful right, and title of the defendant No.8 in the suit property?
6. Whether after death of Abdul Majeed on 13.03.2000 the registered general power of attorney given by him to defendant No.1 stands automatically cancelled and become inef fective and in operative document?
7. Whether registration of sale deed No.216 dated 31.01.2008 and 1343 dated 23.05.2008 of defendant No.10 are illegal, void, ab initio, mala fide, inoperative in excess of his power and without any lawful authority and liable to be cancelled? .
8'. Whether plaintif fs are not entitled to any relief as prayed?
9. What should the decree be?
6. On the above issues, both the parties adduced their evidence and closed their side in evidence respectively .
7. After hearing the parties and going through the available record, learned trial Court decreed the suit to the extent that sale deed dated 30.01.2008 executed by defendant No.1 in favour of defendant No.2 was outcome of fraud, declared the same as such, and cancelled it. The subsequent sale deed dated 23.05.2008 executed by defendant No.2 in favour of defendant No.8 also stood cancelled and it was decreed that sum of Rs.30,00,000/- to be paid to defendant No.8 by the defendants Nos.1 and 2 within 03 months and in case of their failure to pay this money to the defendant No.8, defendants Nos.1 & 2 shall not be entitled for any gain from the partition of the subject property . The said findings were assailed by defendant No.8 by filing Civil Appeal No:126 of 2016, which was entrusted to learned IXth Additional, District Judge, Hyderabad, who after hearing the parties, set-aside the judgment and decree of learned trial Court by allowing the appeal.
7(sic) Learned counsel for applicants argued that judgment and decree of learned appellate Court is skewed on the rights of the applicants; learned appellate Court erred while rendering impugned judgment and decree as appellant in the Civil Appeal was not a victim; learned appellate Court has not considered the fraud, as discussed in detail by the learned trial Court and in a hasty manner passed the impugned judgment and decree, which are aimed to usurp the valueable inheritance rights of the applicants. He further argued that General Power of Attorney being instrument of subsequent transactions automatically ceased to hold the field and became inoperative after death of its executant namely Abdul Majeed on 13.03.2020 and despite such fact, it was used by respondent No.1 to transfer the property to his wife and the chain of transactions ensuing therefrom was illegitimate, but the learned appellate Court did not consider this important aspect of the matter and without going through the concrete evidence duly supported by documents, rendered erroneous findings in the shape of the impugned judgment and decree.
8. On the other hand, learned counsel for respondent No.3 first of all controverted the date of death of deceased, which allegedly was said to be uncertain as well as stated that till date the defendants Nos.1 and 2 have not made payment of Rs.30,00,000/- to respondent No.3 as well as stated that certain other defendants even chose to file an appeal against the judgment and decree of trial Court too, which was dismissed by judgment dated 23.04.2016, therefore, the right to the property having been so acquired by respondent No.3 in the light of judgment reported as PLD 2011 S.0 296 survives. He contended that judgment and decree of learned appellate Court are speaking one, therefore, revision in hand is liable to be turned down.
9. I have carefully and minutely considered the submissions of learned counsel for the parties and perused the material available on record.
10. A perusal of the appellate Court's judgment shows that it while admitted all of other aspect of the trial Court's judgment including the date of death of late Abdul Majeed, however , the point of determination was answered in negative on the sole ground that learned appellate Court considered the power of attorney granted to defendant No.1 by the said Abdul Majeed as an "agency coupled with the interest" under Section 202 of the Contract Act, 1872. In my humble view the concept of "agency coupled with the interest" is only available in the circumstances where the agent along with agency shows that an interest has been acquired by him in the property , in similar case like this, may be that he had paid some valuable consideration to the principal or there are other beneficial considerations and can only be challenged against its unceremonial termination by the principal, which is not the case at hand.
11. Section 2 of the Power of Attorney Act, 1882 prescribes purpose of power of attorney which enables donee of a power of attorney to execute any instrument in his own name and signature under the A authority of donor and such act is to be equally affected in law as if it was done by the donor of the power of attorney in his name. The Power of Attorney Act, 1882 does not encompass any concept of agency coupled by interest by itself. The Power of Attorney is also defined under Section 2(21) the Stamp Act, 1899 according to which power of attorney includes any instrument (not chargeable with a fee under the law relating to the Court fees for the time being of force) empowering a specified person to act for and in the name of the person executing it. With regard to concept of power of attorney as an agency , it is common knowledge that a power of attorne y is a delegation of authority in writing by which one person is empowered to do an act in the name of the other . The person who acts on behalf of another person (the principal) by his authority , express or implied, is called an agent and the relation between him and his principal is called agency . For all practical purposes, a power of attorney holder is nothing but an agent as defined in Section 182 of the Contract Act, 1972, to mean a person employed to do any act for another , or to represent another in dealings with third persons. The authority of an agent is his power to affect his principal position by doing acts on his behalf. The truth is that actual .authority is B the legal relationship between the principal and the agent created by a consensual agreement to which they alone are parties.
12. The position of law changes when an agency is formed between the executant and the power of attorney holder where the agency is coupled with "Interest" which is subject matter of Section 202 of the Contact Act, 1872, which provides that "where the agent has himself an interest in the property which forms the subject-matter of the agency , the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest".
The said Section provides the following illustration;
(a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A.A. cannot revoke this authority , nor can it be terminated by his insanity or death.
(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desires B to sell the cotton, and to repay himself, out of the price, the amount of his own advances. A cannot revoke this authority , nor is it terminated by his insanity or death."
13. It is an established principle of law that a power of attorney is to be Strictly construed each and every word thereof be given restrictive meaning. To pass the threshold of Section 202 exceptional circumstances have to be shown, which are exampled by illustrators following the text of the said section. A close examination of Section 202 would show that it can be split up into two parts. The first part contemplates that the interest of the agent himself should exist in the property that forms the subject-matter of agency . The second part of the section is that when such an interest is created, it cannot be terminated to the prejudice of agent unless it is expressly provided in the contract. The first portion of the section is clearly indicative of the fact that either the agent must have an interest pre-existing in the property or creation of such interest should be the direct result of the agreement itself. Any interest, either not pre-existing or not forming subject-matter of the agreement but created subsequent to the agreement in any related matter , would not be called as the creation of interest of the agent. In the present case, the interest of the parties to the instrumen t of the power of attorney was of the sale of the suit property through the hands of the attorney . Concept of agency coupled with interest only comes into play with the prevalence of adequate consideration, designed to serve as security for some interest of the agent. The scenario can further be elaborated by furnishing the example of a debtor who authorizes his creditor to sell the property and to recover his debt. In such an agreement the creditor-agent has a direct interest in the subject-matter of sale to the extent of his right to recover the debt. The interest of a person is created only where the authority is given for the purpose of being a security or is a part of security and not to cases where such authority is independent and the interest of donee is created afterwards and incidental to the factum of sale etc. An act of giving for sale of father's property by his son in the case at hand does not create an agency coupled with interest. Reliance is placed on the case law reported as PLD 2004 SC 860 (Bloan Beverages (Pvt.) Limited v . PEPSI Co. and 4 others).
14. The principle of Section 202 applies only to cases where authority is given for the purpose of being a security or a part of the security , and not to cases where the interest of the donee arises afterwards and incidentally; in such cases, there is no authority , coupled with an interest but an independent authority . It may be noted that the interest contemplated by Section 202 must be more than the agent's own interest, his conunission or remuneration. The mere arrangement that an agent's salary be paid from the rent he collected does not given the agent any interest in the property . [(1881) 5 Born. 253 (BD)). Agent for sale of goods entitled to retain part of the sale-proceedings in lieu of remuneration has no interest in the goods within the ambit of Section 202 even. The mere investment does ring no bell unless the interest which is allegedly involved fulfils the condition that it forms part of the subject-matter of the contract as provided in section 202 of the Contract Act. It has been held that the interest of the agent, subject- matter of the agency , is to be some sort of an advance nature qua the principal. So, according to the true construction and scope of section 202 the agency can be said to be coupled with interest only where the authority of an agent is given for the purpose of effectuating a security or of suffering an interest of the agent. This can be inferred from the documents forming the basis of agency or from the course of dealings between the documents forming the basis of agency or from the course of dealings between the parties and from the other surrounding circumstances. Reliance is placed on the case law reported as PLD 1986 Kar. 234. No such relationship is seen in the case at hand.
16. With regards cancellation of power of attorney by issuing proclamation in newspaper and any sale taking place after cancellation, it has been held in the case reported as 2005 SCMR 1315 (Ram Munir and another v. Mst.
Sardar Bibi and 3 others) that "proclamation in newspaper puts the public-at-large on guard, thus, purchaser in all fairness ought to have been more vigilant. Purchaser had neither pleased nor record showed that attorney , after execution of sale-deed, had colluded with principal. Power of attorney , held, stood cancelled in such manner and that sale made thereafter was illegal and without authority . Where the power of attorney stood revoked before execution of sale deed in question, such type of transaction is called sham transaction as held by 2007 SCMR 85 (Rasool Bukhsh and another v . Muhammad Ramzan).
17. Power of attorney not containing any clause that the same was executed for consideration, contention that such power of attorney cannot be revoked by the principal has no force in view of Section 202 of the Contract Act, 1872 as held by PLD 1989 Lah. 440 ; 2000 YLR 1938; PLD 2003 SC 31 .
18. In the case in hand, admittedly the power of attorney was granted by late Abdul Majeed (father) to his son Abdul Saleem without any consideration in the year 1998 and learned trial as well as appellate Courts maintained that said Abdul. Majeed died on 13.03.2000, where-after said Abdul Saleem, son of the said deceased acting on the strength of said power of attorney first transferred/sold the suit property to his wife on 03.01.2008, who later on sold the property to defendant No.8 within a span of four months on 23.05.2008 on the valuable consideration of Rs.30,00,000/-. In my humble view these transactions were rightly held as fraudulent and cancelled by the trial Court, however , in good conscience the trial Court directed beneficiaries (defendants Nos.1 and 2) to compensate the present applicant/defendant No.8 and handover sum of Rs.30,00,000/- to him was just and fair closure of the issue.
19. For the reasons detailed above where it has become evident that no interest coupled with the agency was granted by the said deceased to his son Abdul Saleem, whilst there is a mention of verbal gift, however , neither any document in support of that claim has been given nor any of the acts performed by the donor manifested in a valid gift, the appellate Court's judgment build to stand on the strength of Section 202 of the Contract, in my view was only a sand castle, which ought to fall.
20. With regards non-payment of the sum of Rs.30,00,000/- by respondents Nos.1 and 2 to the respondent No.3, the aggrieved person can file a suit for recovery of such sums in accordance with law. I, thus, do not see it as an impediment in execution of the judgment and decree of the trial Court. Nevertheless, even if such payment is not made, the trial Court in all fairness has protected this sum by not allowing share of respondents Nos.1 and 2 to be paid to them unless they pay the sum of Rs.30,00,000/- to the respondent No.3.
21. In the view of aforesaid discussion, I hold that learned appellate Court has committed gross illegality and irregularity while rendering the impugned judgment and decree dated 23.04.2016 and 30.04.2016 respectively in Civil Appeal No.131 of 2013, therefore, same are set-aside and judgment and decree of learned trial Court dated 09.05.2013 20.05.2013 respectively rendered in F .C. Suit No.43 of 2009 are held to hold the field.
In the above terms, instant revision stands allowed.