MUHAMMAD FAISAL KAMAL ALAM, J. Through this common order, two applications being C.M.A.
No.9825 of 2021 (in Suit No.1188 of 2021) and 9822 of 2021 (in Suit No.1189 of 2021), filed under Order VII, Rule 11 of Civil Procedure Code, 1908 ("C.P.C."), are decided.
2. Submissions of all the learned Advocates on Application(s) (ibid) filed by Defendant No.1, mother of Plaintiff in Suit No.1189 of 2.021 and mother-in-law of Plaintiff in Suit No. 1188 of 2021, are heard and record considered.
3. Relevant facts for deciding the present Applications under Order VII Rule 11 of C.P.C. (for rejection of plaints) in both the Suits are, that it is stated by the above Defendant No.1-Mrs. Shahnaz Hyder (for the sake of reference be called "Claimant") that the Property-C-6, Gizri Lane, Phase-IV, DHA, Karachi, measuring 1028 square yards, was exclusively allotted on the recommendation of Pakistan Air Force by the Defence Housing Authority to the Claimant, being the widow of Squadron Leader M.S. Alam Siddiqui, who sacrificed his life for the Country. Claimant has only permitted the Plaintiffs to reside in the above Suit Property, while retaining complete control over the Suit Property, being its exclusive owner.
4. Undisputedly, the Suit Property in due course of time was bifurcated and they are renumbered as C-6 and C/6-1, Gizri Lane, Phase-IV, DHA, Karachi on the basis of an Irrevocable General Power of Attorney [GPA] bearing Registration number 645, Annexure A/17, of the Plaint of Suit No 1189 of 2021, in favour of her son (Adnan Andalib).
It is averred by the Claimant that the above GPA was subsequently revoked and the alleged Oral Gift has no legal sanctity; whereas, the son and daughter-in-law (Plaintiffs of Suit No.1189 and 1188 of 2021, respectively), have averred that firstly, the GPA was unlawfully cancelled; secondly, in the intervening period half portion of suit property was orally gifted to the above daughter-in-law (Sadia Siddiqui), therefore, valuable rights and interest have accrued in favour of the said Sadia Siddiqui and other Plaintiffs, that is, her children, who are grand-children of the Claimant.
5. Mr. Muhammad Ali Lakhani, Advocate, has argued that both the Plaintiffs have no legal character to institute their respective suits as the Suit Property, which admittedly (originally) a 1000 Square Yards Plot bearing No.C-6, Gizri Lane, was allotted to Claimant upon representation made by her along with other widows of those Pilots, who sacrificed their lives for this Country. He has referred to the Letter of July, 1966, and the Allotment Order of 28.10.1966 (at page-103) in support of his arguments. Contended that General Power of Attorney relied upon by Plaintiffs in favour of son (Plaintiff of Suit No.1189 of 2021) was for limited purpose as Claimant was residing outside Pakistan, but the same was revoked by the Claimant vide another registered instrument of 09.01.2015; besides, the same was also revoked by the Plaintiff son himself, vide Instrument dated 03.08.1995 (at pages-373 and 377 of the Court's file). He has argued that the Written Statement of Claimant also contains a Counter Claim, but that does not mean that both plaints of the suits cannot be rejected, because it is by now a settled rule that since plaint and a counter claim are separable, thus, the Counter Claim will survive even if the plaint is rejected. He further contended that in any event, Claimant's son grossly misused the General Power of Attorney and gifted a portion of the Suit Property to his first wife, which is void ab initio, because it is also an established principle [as discussed in the cited Decisions, mentioned in the opening Part of this Order], that in present nature of cases, an attorney cannot alienate the subject matter of the gift, without the permission of the Principal (in the present case the Claimant), unless the General Power of Attorney is coupled with interest in terms of Section 202 of the Contract Act, 1872, which is not the present case.
6. Mr. Arshad Tayebally, Advocate, along with Mr. Farjad Ali Khan, and Mr. Muhammad Haseeb Jamali, Advocates, appearing for the respective Plaintiffs, have controverted the arguments of Claimant's Advocate. Main line of the argument is that the Suit Property was given as compensation to the family of Shaheed Father (above named) and not only to Claimant and thus it is to be considered as inheritance of the deceased father. Contended that exercising power under the GPA got the suit property bifurcated from the Defence Housing Authority after following the due process and the same was later gifted to his first wife, that is, Plaintiff of Suit No.1188 of 2021 (Ms. Sadia Siddiqui), in which she is residing with her children, that is, grandchildren of Claimant.
Plaintiffs' Advocate has referred to paragraphs-29/A to 29/C of the plaint (of Suit No.1189 of 2021), to categorically refute the stance of Claimant / Defendant, that Irrevocable General Power of Attorney dated 01.12.1994 was subsequently itself revoked by the son of Claimant (that is, by the Plaintiff - Captain Adnan himself) while stating that the Document (Annexure D-10') is a forged document as admittedly the Suit Property is in DHA, that is, District South of Karachi, whereas, the said document was fraudulently registered with the Sub-Registrar of Gulshan-e-Iqbal. Similarly, it is contended that the Claimant has purportedly revoked the General Power of Attorney and the document itself states that it was done on 09.01.2015 [Annexure D/11 of Written Statement and Counter Claim of Claimant], when the said General Power of Attorney had been acted upon and valuable rights and interest haye accrued in favour of both the Plaintiffs and particularly Plaintiff of Suit No.1188 of 2021 (that is the daughter-in-law of the Claimant), as half portion of the property was gifted to her and possession was delivered, wherein, she and her children are still residing. To the arguments of the Defendants, that no registered document with regard to gift has been placed on record by both Plaintiffs, it is stated that since the gift is a HIBA under the Muslim Law, it does not compulsorily requires registration as basic ingredients of gift are existing in the present case. Both learned Advocates for Plaintiffs have referred to various precedents, which are mentioned herein-above.
7. The undisputed facts are, that initially the property in question was a plot admeasuring 1028 yd., bearing No.C-6, which was subsequently bifurcated into two plots, viz. C-6 and C-6/1. A General Power of Attorney bearing Registration No.645 was executed by Claimant in favour of her son [above named Plaintiff of Suit No'.1189 of 2021], which Document is of 01.12.1994. What is disputed is the revocation of this General Power of Attorney by the son himself (as mentioned in the foregoing paragraphs) and subsequent revocation by the Claimant herself on 04.01.2015. There is substance in the arguments of Plaintiffs' counsel that the revocation allegedly done by the son (Annexure D/10 at page 373 of the Court's file) is done by the Sub-Registrar Gulshan Iqbal, that is, of District East, whereas, the property in question is in Defence Housing Authority, which is in the District South of Karachi. If this crucial fact is proved by the Plaintiffs during trial, then it will have serious consequences, including that for the Defendant - Claimant. Similarly, even if the subsequent revocation done by the Claimant herself is not disputed, which is of 09.01.2015, which means, that revocation of GPA [ibid] is done after 20 years from the date of the execution (of GPA), and in the intervening period, new and substantial developments have taken place, particularly the HIBA [as alleged] of portion of the Suit Property in favour of Plaintiff of Suit No.1188 of 2021 (Ms. Sadia Siddiqui, daughter-in-law of the Claimant) wherein, all the Plaintiffs of Suit No. 1188 of 2021 are residing [in possession].
8. Contents of the Irrevocable General Power of Attorney [ibid] has been perused in order to appreciate the arguments of the Defendant Claimant. Clause 2 contains, inter alia, the authority to oral gift (Hiba), besides, power of disposition of the Suit Property. Clause 11 contains the power, inter alia, for bifurcation' of the Suit Property. Prima facie, it appears that the acts done by the son (Plaintiff in the Suit No.1189 of 2021) is not in excess of the authority given under the above registered instrument (Irrevocable General Power of Attorney). This aspect cannot be ignored, so also laid down in the Cited Case Law [supra] that for a valid gift under the Muslim Law, a registration is not mandatory and an oral gift / Hiba is also acceptable and valid; here Plaintiff / son is purportedly a Donor, Plaintiff of Suit No.1188 of 2021 - daughter-in-law is the Donee, who is also in possession of the Suit Property. However, this is a tentative assessment and to prove this fact, or the assertion of Claimant, testimonies of the Parties and witnesses have to be recorded.
9. The other undisputed but crucial fact is that since decades both Plaintiffs and their families are residing in the Suit Property, although the lease is in the name of Claimant. It is to be determined through a proper trial that whether the Suit Property was given to the Claimant as her exclusive Property or the same was the compensation given to the Family of the above named Deceased, through his widow, viz. the Claimant, as children, including the above Son [Adnan Andalib] were minors at the relevant time]. Considering the above discussion and the close relationship between the Parties hereto, that one Plaintiff is the real son of Claimant and the other one is the daughter- in-law, the cited case law by the Defendants counsel, particularly, relating to the authority of an attorney for alienating or disposing or transferring the subject matter of General Power of Attorney to the next of kin, is distinguishable; secondly, in the cited Decisions the conclusion was arrived at after the parties [of the reported Decisions] have led the evidence, which in the present Lis is yet to be done. But, if at this stage, the Defendant Claimant is seeking the rejection of plaint, then, in view of Khalid Hussain's case [ibid], onus is on Claimant to show that the above Irrevocable General Power of Attorney was properly revoked and all subsequent acts and deeds of Plaintiffs are void ab initio, which, however, the Claimant has failed to show.
10. Consequently, in view of the above discussion, both listed Applications are dismissed.
Case law relied upon by Plaintiffs' Counsel (in Suit No.1188 of 2021)
1. 2021 SCMR 1986 [Khalid Hussain and others v. Nazir Ahmad and others];
2. 2008 SCMR 236 [Mrs. Anis Haider and others v. S. Amir Haider and others];
3. 2001 SCMR 953 [Muhammad Altaf and others v. Abdur Rehman Khan and others];
4. PLD 2016 Sindh 26 [Shahzad and another v. IVth Additional District Judge, Karachi (East) and 5 others];
5. 2022 CLC 920 [Munawar Ali and others v. Umar Daraz and others];
6. 1994 SCMR 818 [Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others];
7. PLD 2008 Supreme Court 389 [Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others];
8. 2016 SCMR 1781 [Mst. Naila Kausar and another v. Sardar Muhammad Bakhs and others];
9. 1987 SCMR 1403 [Maulvi Abdullah and others v. Abdul Aziz and others];
10. PLD 1998 Karachi 291 [Abdul Sattar Dadabhoy and another v. The Honorary Secretary, Pakistan Employees Cooperative Housing Society, Karachi and another]; and
11. 2020 SCMR 276 [Muhammad Sarwar v. Mumtaz Bibi and others].
Case law relied upon by Plaintiffs' Counsel (in Suit No.1189 of 2021)
1. 2006 SCMR 489 [Abdul Waheed v. Mst. Ramzanu and others];
2. PLD 2013 Peshawar 1 [Mst. Hussan Jamala and another v. Government of Khyber Pukhtunkhwa through Secretary, Home and Tribal Affairs, Peshawar];
3. 2021 SCMR 1298 [Ijaz Bashir Qureshi v. Sham-un-Nisa Qureshi and others];
4. 2021 CLC 1102 [Ali Gohar and another v. Abdullah Mallah and 5 others];
5. 2011 YLR 1473 [Rana Imran and another v. Fahad Noor Khan and 2 others];
6. 2019 YLR 1055 [Aamir Hameed and another v. Messrs Aloo and Manocher Dinshaw Charitable Trust, through one of the four trustees and 14 others]; and
7. 2021 SCMR 743 [Syed Ahmad v. Ali Akbar and others].
Case law relied upon by Defendants' Counsel (in Suit No.1188 of 2021 for Defendant No.2 and in Suit No.1189 of 2021 for Defendant No.1)
1. Unreported Order dated 15.09.2021 passed by the Honourable Supreme Court of Pakistan in Civil Appeal No.221 of 2018;
2. Unreported Judgment dated 02.03.2022 passed by the Honourable Supreme Court of Pakistan in Civil Petition No.1998 of 2018;
3. 2018 CLD 585 [Muhammad Khalid v. Muhammad Adnan Qureshi]; (sic)
4. PLD 2015 Sindh 360 [Erum v. Mst. Ameena and 5 others];
5. 2018 CLC 585 [Muhammad Khalid v. Muhammad Adnan Qureshi];
6. 2006 CLD 1 [Mian Farooq Ahmad Sh. and others v. Privatization Commission and others];
7. 2010 CLC 1666 [Trustees of the Port of Karachi v. Karachi International Container Terminal Limited, (K.I.C.T.)];
8. PLD 1991 Supreme Court 731 [Federal Government of Pakistan v. Public at Large];
9. 2021 SCMR 1298 [Ijaz Bashir Qureshi v. Shams-un-Nisa Qureshi and others];
10. 2019 YLR 1700 [Mrs. Naveen Irfan Puri through Attorney v. Mst. Shama Parveen and 3 others]; and
11. PLD 2012 Supreme Court 247 [Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited].
Other Material Black's Law Dictionary [Ninth Edition] By Bryan A. Garner, Editor in Chief.