ASIM HAFEEZ, J. Instant and connected Civil Revision No.2195/2011 are directed against consolidated judgment and decree dated 02.04.2011 of first appellate court, whereby appeals preferred by petitioner was dismissed, and consolidated decision of court of first instance, dated 19.01.2010, was affirmed, in terms whereof trial court had dismissed suit for declaration instituted by the petitioner, on 27.07.2005, and decreed suit for specific performance brought by respondent No.1, on 08.01.2005, seeking enforcement of alleged agreement to sell dated 21.10.2004.
2. Controversy needs to be contextualized, which necessitates recapitulation of essential facts.
Claimed land comprised of residential house and agricultural land ('suit property'), which was originally owned by the respondent No.2 - deceased Muhammad Ibrahim, father to a daughter, i.e., Petitioner. It is not disputed that respondent No.2, upon death of his wife, had gifted the suit property to his only daughter, who after some years had executed a general power of attorney in favour of her father, registered deed, dated 22.12.1984. Respondent No.1 claimed that father of the petitioner, acting for and at the behest of his daughter, and pursuant to the power of attorney, contracted suit property through agreement to sell, dated 21.10.2004, agreeing to sell suit property against consideration of Rs.500,000/-. Respondent No.1 alleged that possession of the house was delivered, and in this behalf deed of sale was also executed, however, agricultural land was not transferred, which led to the action for seeking performance of the agreement. Respondent No.1 was related to the respondent No.2, being his nephew.
Petitioner sought declaration of invalidity against alleged arrangement, carried out by her attorney - father - and pleaded ineffectiveness of transaction on the premise of claim of revocation / cancellation of power of attorney, vide deed of cancellation dated 11.01.2005. Suits were consolidated and 14 issues were framed. Respondent No.1 appeared as PW-2, and produced one of the witnesses of the agreement to sell - Shamshad Hussain [PW-3] - who also produced the attorney as PW-4 - father of the petitioner, besides three other witnesses. Petitioner appeared as her sole witness - DW-1. Learned trial court upon conclusion of trial, dismissed petitioner's claim and decreed claim of specific performance, in favour of respondent No.1. Appeals preferred by the petitioner were dismissed. Hence this Civil Revision.
3. Learned counsel for petitioner contends that respondent No.1 was related to the attorney, Muhammad Ibrahim, being his nephew, in which case the attorney was required to seek permission from the principal before entering in alleged transaction. Further submits that petitioner was not beneficiary of the transaction; neither any alleged advantage was drawn nor proved.
4. Conversely, learned counsel for respondent No.1 submits that act of revocation / cancellation of power of attorney impliedly manifest acknowledgment of execution of power of attorney, which was acted upon and agreement to sell was executed by the attorney before revocation / cancellation took effect. Submits that attorney appeared as witness, who acknowledged execution of the agreement and receipt of consideration. Submits that respondent No.1 was not related to respondent No.2 as blood relative, hence, no special permission of the principal was required, which permission was required in case attorney sells property of the principal to the next of kin / blood relation. Submits that requirements in terms of sections 214 and 215 of the Contract Act, 1872 are not attracted. Submits that there is a standalone judgment in the case of "Muhammad Akbar Khan and others Vs. Atta Ullah Khan and 11 others" (2009 YLR 1640), wherein attorney had exercised authority in favour of son and nephew, which judgment is otherwise distinguishable on facts. Adds that execution of agreement to sell was admitted. Learned counsel read the evidence of general attorney to show distant relationship with respondent No.1. Further submits that attesting witnesses were accordingly produced, which had endorsed the transaction in question.
5. Submissions heard. And file perused.
6. Fundamentally, the controversy is whether attorney was required to seek special permission of the petitioner before committing to agree to sell the property of the principal by virtue of the agreement to sell. Since agreement to sell was allegedly executed after the revocation / cancellation of registered power of attorney, when attorney held the authority, therefore, this question is not of much significance. It is evident from the evidence led that respondent No.1 was claimed to be the son of respondent No.2s' cousin. Judgments referred are examined and ratio laid is analyzed in later part of the decision.
7. The controversy, primarily involving construction of sections 214 and 215 of the Contract Act, 1872 in view of the facts of the case, needs to be contextualized in the context of case of "Fida Muhammad Vs. Pir Muhammad Khan (deceased) through legal heirs and others" (PLD 1985 SC 341), a celebrated judgment, having proximity to the controversy at hand, wherein obligations of the attorney while dealing with the property of the principal, subject matter of agency, were elucidated. It was laid down that agent, in cases of difficulty, was required to use all reasonable diligence in communicating with the principal for seeking instructions, and, where agent purchases the property, subject of agency, for himself or his own benefit, same is obligated to seek principal's consent, after acquainting the principal with all material circumstances, - latter obligation is relevant in the context of present controversy.
It is the case of the respondent No.1 that property was not purchased by the attorney or his blood relation but same was sold to a distant relative, hence, no permission was required.
8. Submissions by counsel for the respondent No.1 are misconceived, which are made without appreciating the evidence available / led by the respondent No.1. PW-1, stepbrother of the petitioner, acknowledged that attorney resided with the respondent No.1 in the house, subject matter of power of attorney and agreement to sell, and respondent No.1 was fully responsible for entertaining the attorney, regarding provisioning of food and residence, which services rendered was the reason for transferring the house to the respondent No.1. PW-1 further acknowledged that attorney and respondent No.1 collectively cultivates the land - since land of the petitioner and respondent No.1 was in same Estate / Khata. Respondent No.1 appeared as witness - PW-2 - who acknowledged that he was responsible for the food, residence and clothing of the attorney, who was earlier residing at Cha-Khata and now residing with the respondent No.1. PW-2 acknowledged joint cultivation of the land, who acknowledged that possession of agricultural land was with him even before the agreement to sell. PW-2 acknowledged that attorney was not on talking terms with the principal - his daughter. The attorney - Muhammad Ibrahim - appeared as PW-4, who admitted gift of property to his daughter, who is an uneducated lady. PW-4 admitted that after gift he, along with respondent No.1, was cultivating land and paid revenue to the petitioner. PW-4 admitted his residence with respondent No.1 - during the last 40 years -, who is his nephew. And acknowledged that respondent No.1 was providing food, residence, clothing and fulfilling other needs of the life. PW-4 admitted that since respondent No.1 had served / attended him, and in lieu thereof, suit property was sold to respondent No.1.
The most interesting feature of the case is that attorney had not alleged that consideration received was paid to the principal or utilized for the advantage of the principal.
9. In view of the above, it is established that no special permission was asked - though attorney admitted that respondent No.1 was his nephew [no explanation was provided to show that respondent No.1 was not the descendant from same ancestor, and respondent No.1 was not related by blood. Notwithstanding this inadequacy, there is another fundamental lapse in the performance of obligations by the Attorney. Attorney has to prove that transaction was not for his benefit, which material issue was not proved and instead it is established that suit property was sold in return of the services rendered by the respondent No.1 - which convincingly proved that attorney sold suit property for his own benefit. Evidently the transaction carried out secured him his comfort, residence, food and care extended by the respondent No.1, which influenced the attorney and led to compromising his duties, responsibilities and obligations towards the principal. The advantages / benefits drawn by the attorney, at the expense of the principal, are established. These admitted facts constitute provisioning of tangible benefits and calls for the necessity of prior permission from the principal. No evidence was led to prove that money allegedly received were paid to the principal. Attorney not even alleged this fact. Hence, requirements of sections 214 and 215 of the Contract Act, 1872 were not met. Both the courts have failed to advert to this material question, which if considered would have impacted the inferences drawn, found to be erroneous, irrational - where father would deprive his daughter of her property, almost 20 years after the execution of the power of attorney. It is apparent that petty family disputes, where the daughter has not invited father to the wedding of her son, had estranged the father. It is established that conduct of transaction with respondent No.1 was an outcome of personal anger / displeasure, which led to non-performance of obligations by the attorney. This does not absolve attorney from performance of obligations as agent. Respondent No.1 was privy to all this acrimony or bitterness and was aware that no permission was solicited from the principal. Respondent No.1 cannot claim benefit of being a bona fide purchaser for value, who is actually a collaborator.
10. Following judgments are referred by counsel for the petitioner, rendered in the cases of "Haq Nawaz and others Vs. Banaras and others" (2022 SCMR 1068), "Muhammad Yasin and another Vs. Dost Muhammad through legal heirs and another"(PLD 2002 Supreme Court 71). Learned counsel for the respondent No.1 has relied upon following decisions, reported as "Maqsood Ahmad and others Vs. Salman Ali" (PLD 2003 Supreme Court 31), "Syed Atif Raza Shah Vs. Syed Fida Hussain Shah and another" (2022 SCMR 1262), "Mst. Shahnaz Akhtar and another Vs. Syed Ehsan ur Rehman and others" (2022 SCMR 1398), "Mst. Naila Kausar and another Vs. Sardar Muhammad bakhsh and others" (2016 SCMR 1781). Judgments referred discussed principles in the context of the facts of each case, and dicta laid therein are found relevant in the context of the facts of those cases, which have no bearing on the case at hand, in wake of distinguishable facts.
11. Dictum laid in the case of FIDA MUHAMMAD (supra) was reiterated in the case of "Muhammad Akbar Khan Vs. Atta Ullah Khan and 11 others" (2009 YLR 1640), wherein agent had sold land to his son and nephew [close relatives], without permission of the principal, manifests proximity to facts of the case at hand. Rule of prior permission by the agent from the principal, in view of facts of the case, is attracted, but not appreciated by the courts concurrently. Both decisions are not sustainable in law.
12. In view of the aforesaid, the Civil Revisions are allowed, consolidated judgment and decree dated 02.04.2011 of the first appellate court and judgment and decree of court of first instance, dated 19.01.2010, are declared as suffering from errors of law and same are set-aside. And consequently, suit of the petitioner stands decreed and suit of the respondent No.1 is, hereby, dismissed, and agreement to sell dated 21.10.2004 is declared of having no legal effect and all actions / steps taken pursuant thereto are declared void and ineffective. Parties shall bear costs respectively.