C.M. No.1-C of 2023.
This is an application for restoration of the titled civil revision, which was dismissed on account of non-prosecution by this Court vide order dated 05.04.2023.
2. With concurrence of learned counsel for the parties, the instant application is allowed and the order dated 05.04.2023 passed by this Court is recalled and civil revision is restored to its original number. Office is directed to fix the main civil revision today.
Main Case.
Respondents No.1 & 2/plaintiffs namely Muhammad Nawaz and Tahir Mehmood filed a suit for specific performance of agreement to sell, declaration and permanent injunction as a consequential relief against Fateh Din, Sughran Bibi, Karam Bibi and Nazar Bibi before the learned Senior Civil Judge, Gujranwala on 14.06.2000. The case of Muhammad Nawaz, etc. was to the effect that the defendants No.2 to 4 in the suit entered into an agreement to sell with them on 27.10.1999 through Fateh Din, the defendant No.1 as their general attorney dated 13.10.1992 with regards to the land measuring 38 kanal 17 marlas situated in Khewat No.12, according to register Haq Daran-e- Zamin for the year 1987-88 out of their total entitlement of 52 Kanal 15 Marlas for a total consideration at Rs.12,14,062/- and received an amount of Rs.11,00,000/- as earnest money. The remaining consideration of Rs.1,14,062/- was to be paid on 13.06.2000. On the stated failure of the defendants in the suit, the plaintiffs were left with no other option but to knock the door of the Court through the said suit.
2. The defendant No.1 i.e. Fateh Din filed a consenting written statement, whereas defendants No.2 to 4/plaintiffs through their written statement denied the stance of the plaintiffs on legal as well as factual grounds. The stance put forward by the defendants No.2 to 4 was that they at the relevant time trusted defendant No.1 i.e. their real brother but on attaining knowledge of malafide of their brother who was statedly collusive with the plaintiffs, they got the general power of attorney dated 13.10.1992 cancelled on 19.04.2000. In addition to this, they denied the agreement to sell dated 27.10.1999 while submitting that it was prepared after cancellation of the general power of attorney.
3. Out of the divergent pleadings of the parties, learned trial court framed following necessary issues:- ISSUES
1. Whether the defendants No.2 to 4 through their duly and validly constituted general attorney i.e. defendant No.1, entered into an agreement to sell of the suit property, received part of the consideration, delivered possession of suit land and accordingly executed an agreement to sell dated 13-06-2000? OPP.
2. Whether the suit is collusive between the plaintiffs and defendant No.1? OPD 2 to 4.
3. Whether the defendant No.1 had no lawful authority to execute any agreement on behalf of defendants No.2 to 4? OPD 2 to 4? OPD.
4. Whether the plaintiffs have no cause of actions? OPD 2 to 4.
5. Whether the plaintiffs are entitled to decree for specific performance of this agreement, if so at what terms and conditions? OPP.
6. Relief.
After framing of issues, both the parties produced their respective evidence and on completion of the same, suit was decreed by way of impugned judgment dated 09.06.2011 passed by the learned Trial Court. Being aggrieved, the defendants/petitioners preferred an appeal but remained unsuccessful vide impugned judgment and decree dated 13.06.2014 passed by the learned Additional District Judge, Gujranwala, hence this civil revision.
4. Heard.
5. The most pivotal document in this case is purported general power of attorney, which has been brought on record as Ex.P-2. In order to better explain the position, the recital of the same, bestowing the powers upon General Attorney namely Fateh Din (defendant No.1), is reproduced infra:- After referring the conferring portion of the purported to consider legal insinuations of sale and agreement to sell, which have been defined in section 54 of the Transfer of Property Act, 1882 and section 2(h) of the Contract Act, 1872, respectively, which are reproduced as under:-
54. "Sale Defined". "Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other, intangible thing, can be made only by a registered instrument.
In case of tangible immovable property, of a value of less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs in possession of the property.
Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on such terms settled between the parties.'
The definition of "Contract" under the Contract Act, 1872 as provided under section 2(h) is that an agreement enforceable by law is a contract.
When the recitals of the alleged general power of attorney is gone through only powers of sale have been conferred upon the general attorney namely Fateh Din and the same does not give any power to enter into an agreement to sell. As per my understanding, the powers to sell the property does not include the power to enter into an agreement to sell as in the powers of the sale the consideration amount is received and property is sold out; however, the agreement to sell binds both the parties in accordance with the terms of agreement to perform their part in future.
Therefore, when a specific power of entering into an agreement to sell of the suit property was not given to Fateh Din, attorney, he was not competent to enter into any kind of agreement to sell on the behalf of the petitioners/ principals/ owners of the disputed property, because in case of 'sale' a transaction is completed, rights and liabilities of the parties are determined through an instrument of sale and with the registration and completion of the same, no further liability of parties remains against each other; as against this, in case of agreement to sell both the parties are bound to perform the terms and conditions of agreement to sell in future, thus, until and unless an attorney is given and bestowed with specific powers to bind the principal for performance of terms of the agreement in future, the attorney cannot bind the principal and enter into agreement to sell of property owned by the principal(s). In such scenario, the alleged agreement to sell, sought to be enforced through suit for specific performance in the instant case, is bad on the basis of having no powers with the attorney to enter into agreement to sell of the suit property, owned by the present petitioners. In this regard, reliance is placed on judgments, pen down, by the Supreme Court of Pakistan, reported as Fida Muhammad v. Pir Muhammad Khan (Deceased) through Legal Heirs and others (PLD 1985 Supreme Court 341) and Malik Riaz Ahmed and others v. Mian Inayat Ullah and others (1992 SCMR 1488) wherein it has been held that:- 'It is wrong to assume that every 'general' power of attorney on account of the said description means and includes the power to alienate/dispose of property of the principal. In order to achieve that object it must contain a clear separate clause devoted to the said object. The draftsman must pay attention to such a clause if intended to be included in the power of attorney with a view to avoid any uncertainty or vagueness. Implied authority to alienate property, would not be readily deducible from words spoken or written which do not clearly convey the principal's knowledge, intention and consent about the same. The Courts have to be vigilant particularly when the allegation by the principal is of fraud and or misrepresentation.'
Further reliance can safely be placed on judgments reported as Dost Muhammad v. Member, Board of Revenue and others (2001 MLD 2019) and Yar Baz Khan v. Lal Nawaz (PLD 1996 Peshawar 86), wherein it has been held that:- 'Before parting with this case, I would like to emphasize that an attorney derives authority from the principal with regard to his property either for its management or alienation for a specific purpose.
The agent has to act within the framework of the deed which is depository of the intention, rights, liability and authority of parties and cannot travel beyond its scope and purview of its recitals. By re-passing confidence in agent, he is expected in law to act for the benefit of his principal. His conduct and performance of duty enjoined upon him is subject to certain commotions and limitations.'
In another judgment reported as HAQ NAWAZ and others v. BANARAS and others (2022 SCMR 1068) on the similar preposition, the Hon'ble Supreme Court of Pakistan has invariably held:- "5. Mst. Channan Jan's stance throughout has been that she appointed Ghulam Rasool, who was her tenant in occupation, as her attorney, merely to manage the affairs of her land and for nothing more, and therefore, given the status of the lady, it was imperative for the appellants Nos.1 and 2 to have demonstrated and proved that at the time of the execution of the power of attorney, she was fully conscious of the fact that the document also contained power to sell and that the entire document was read out and explained to her fully and truly, and further that she executed it under an independent advice. They had also to prove that the lady was fully aware and conscious of the consequences and implications of executing the said document. However neither did they prove, nor even pleaded any of it. It therefore cannot be held that Ghulam Rasool, was in fact authorized by Mst. Channan Jan to sell the suit land. The impugned sale/transfer was thus liable to be set-aside on this ground alone. In any view of the matter, since admittedly, the power of attorney did not do not specifically authorized Ghulam Rasool, to convey the property to his sons, or for that matter to any of his near ones, nor has he been able to prove that, he was otherwise so authorized. The impugned sale mutation was liable to be cancelled as rightly done by the revenue hierarchy. Since long it is well established that an attorney cannot lawfully make transfer of a property under agency in his own name, or for his benefit, or in favour of his associates, without explicit consent of the principal, and in the event he does so, the principal, under the mandate of section 215 of the Contract Act, has a right to repudiate such transaction.
Mst. Channan Jan having disowned the subject transaction, the same was rightly annulled as noted above."
In view of the above, when it is established on record from the recitals and contents of the purported general power of attorney Ex.P-2 that no power was given to Fateh Din by the petitioners to enter into agreement to sell germane to their property with any one, Fateh Din was not authorized to do such an act i.e. agreement to sell in question on behalf of the petitioners/principals, therefore, the purported agreement to sell is bad in the eyes of law and is not enforceable. Moreover, revocation of purported general power of attorney by the petitioners makes it vivid that they did not confer any power of disposing of the disputed property in the manner as has been done by defendant No.1 namely Fateh Din. When the very basis of the suit in hand is proved to be non-enforceable, the suit cannot succeed even if the evidence supports the stance of the respondents No.2 to 4. However, in the present case, no cogent and confidence inspiring evidence has been brought on record showing the receipt of sale consideration by the present petitioners. Moreover, the second marginal witness of the alleged agreement to sell namely Muhammad Nasir son of Muhammad Ali was not produced in the witness box, meaning thereby the said document has also not been proved as per requirement of Article 79 of the Qanun-e-Shahadat Order, 1984. Though an argument has been advanced that the scribe of the document is also witness of receipt of the consideration amount but the same has no force because the scribe of the document cannot be equated with marginal witness. In this regard reliance is placed on Hafiz Tassaduq Hussain Vs. Muhammad Din through Legal Heirs and others (PLD 2011 Supreme Court 241). Non-production of the second marginal witness is also fatal to the respondents case because he was an independent witness, whereas the other marginal witness is father of the respondents, who has status of an interested witness; therefore, withholding of the best available evidence without any incapacity, attracts the adverse presumption as per Article 129(g) of Qanun-e-Shahadat Order, 1984 that had the said witness been produced, he would not have supported the stance of the respondents/plaintiffs.
6. It will not be out of place to mention here that the petitioners/ defendants No.2 to 4 are admittedly illiterate and Parda Nashin ladies and Courts of law in such cases ought to be very careful in deciding the controversy as special caution has been given in law. In respect of a transaction germane to property with a pardanasheen, village household and rustic ladies, the Apex Court of the country in a judgment reported as Phul Peer Shah v. Hafeez Fatima (2016 SCMR 1225) has given the parameters and conditions to be fulfilled in a transparent manner and held that:- 'In case of a (property) transaction with an old, illiterate/rustic village 'Pardanasheen' lady the following mandatory conditions should be complied with and fulfilled in a transparent manner and through evidence of a high degree so as to prove the transaction as legitimate and dispel all suspicions and doubts surrounding it:- i. That the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences; ii. That she had independent advice from a reliable source/person of trust to fully understand the nature of the transaction; iii. That witnesses to the transaction were such, who were close relatives or fully acquainted with the lady and had no conflict of interest with her; iv. That the sale consideration was duly paid and received by the lady in the same manner; and v. That the very nature of transaction was explained to her in the language she understood fully and she was apprised of the contents of the deed/ receipt, as the case may be.'
Moreover, this Court has held that old and illiterate ladies are entitled to the same protection which is available to the Parda observing lady under the law; reliance is placed on Muhammad Afzal v.
Muhammad Zaman (PLD 2012 Lahore 125). Furthermore, in Ghulam Muhammad v. Zahoran Bibi and others (2021 SCMR 19), the Apex Court of country has held:- 'It is settled law that the beneficiary of any transaction involving parda nasheen and illiterate women has to prove that it was executed with free consent and will of the lady, she was aware of the meaning, scope and implications of the document that she was executing. She was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her.'
In judgment reported as Muhammad Naeem Khan and another v. Muqadas Khan (decd) through L.Rs. and another (PLD 2022 Supreme Court 99), the Apex Court of the country has invariably held:- 'If any such plea is taken then it is a time-honored parameter that in case of a document executed by a pardanashin lady, the burden of proof is on the party who depends on such a deed to persuade and convince that Court that it has been rad over and explicated to her and she had not only understood it but also received independent and disinterested advice in the matter. The aforesaid parameter and benchmark is equally applicable to an illiterate and ignorant woman who may not be a pardanashin lady. If authenticity or trueness of a transaction entered into by a pardanashin lady is disputed or claimed to have been secured on the basis of fraud or misrepresentation, then onus would lie on the beneficiary of the transaction to prove his good faith and the court has to consider whether it was done with freewill or under duress and has to assess further for an affirmative proof whether the said document was read over to the pardanashin or illiterate lady in her native language for her proper understanding.'
Keeping in view the ratio of the above said judgments, when the facts of the case in hand are considered, it appears that none of the above said parameters have been met with.
7. In view of the above, it is concluded that the learned Courts below have failed to consider each and every aspect of the case and have failed to construe law on the subject in a judicious manner while passing the impugned judgments and decrees, which cannot be allowed to hold field further.
This Court is vested with ample power and jurisdiction to reverse and revise the concurrent judgments and decrees, when the same suffer material illegalities and irregularities as well as result of misreading and non-reading of evidence as has been held in judgments reported as Nazim-ud-Din and others v. Sheikh Zia-ul-Qamar and others (2016 SCMR 24), Mandi Hassan alias Mehdi Hussain and another v. Muhammad Arif (PLD 2015 Supreme Court 137), Iqbal Ahmed v. Managing Director Provincial Urban Development Board, N.W.F.P. Peshawar and others (2015 SCMR 799), Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630), Ghulam Muhammad and 3 others v. Ghulam Ali (2004 SCMR 1001) and Habib Khan and others v.
Mst. Bakhtmina and others (2004 SCMR 1668).
8. For the foregoing reasons, the revision petition in hand is allowed, impugned judgments and decrees are set aside, consequent whereof, the suit instituted by the respondents No.1 & 2 stands