Mst. Basri widow of Nabi Bakhsh who is appellant before this Court is owner of land measuring 14 Kanals 1 Marla out of land measuring 56 Kanals 5 Marlas situate at Chak No.202/R.B. Tehsil and District Lyallpur 'Faisalabad', The abovesaid landed property is alleged to have been sold by Muhammad h Ibrahim son of Noor Din respondent No.3 on the basis of power of attorney executed by her in his favour, to M/s. Abdul Hamid and another respondents Nos. l and 2, on the basis of which sale, they claimed ownership rights therein and also interfered with the possession thereof.
2. The appellant on coming to know of the aforementioned sale dated 27-1-1967 filed a suit on 3-2- 1967 seeking a declaration to the effect that the sale in favour of respondents Nos.1 and 2 made by respondent No.3 is unauthorized, void, collusive, without consideration and is inoperative against her ownership and possessory rights and that she continues to be the owner of the suit land.
Besides the above said declaration she also sought a decree for permanent injunction against respondents Nos. l and 2 to the effect the should not interfere with her possession.
3. As regards the deed of power of attorney, in para. No.2 of the plaint it has been alleged that respondent No.3 was appointed as an attorney for the purpose of management of the suit land which authority even was subsequently revoked vide registered notice dated 26-1-1967 and citation in the press dated 27-1-1967 and that neither the said attorney had been authorised to sell the property nor the plaintiff did agree ever to sell the same.
4. The suit has been contested by the defendants inter alia on the grounds that Muhammad Ibrahim respondent No.3 was a validly appointed attorney of the plaintiff who had sold the property for consideration and that the power of attorney had never been cancelled through a registered notice or by execution of a registered deed of revocation. On the basis of the pleadings of the parties learned trial Court settled the following issues: ISSUES
1. Is the suit property valued for purposes of court-fee and jurisdiction?
2. Is the suit competent in its present form?
3. Whether defendant No.3 was not entitled to sell the disputed land to defendants Nos. l and 2 as her attorney?
4. Whether the plaintiff had revoked the power of attorney executed by her in favour of defendant No.3 prior to the sale in question?
5. Whether the sale-deed dated 27-1-1967 is collusive, fictitious, without consideration and null and void?
6. Whether defendants Nos. l and 2 are bona fide purchasers without notice for value?
7. Relief.
5. In support of his case, the plaintiff examined seven witnesses. Abdul Rehman P. W.1 has stated that the plaintiff had revoked the power of attorney about a year back through a notice and that respondent No. 3 was informed the same day that authority in his favour has been revoked. Iqbal Hussain P.W.2 has stated that power of attorney in favour of respondent No.3 was terminated on 27-1-1967 and this fact was known a day earlier throughout the village. Shah Muhammad P.W.3 deposed that the authority of respondent No.3 was revoked on 26-1-1967 and registered notice was sent to the above effect on the next day and further that Muhammad Ibrahim respondent No.3 knew about cancellation of his power as attorney of the plaintiff. Jan Muhammad P.W.4 is scribe of notice Exh. P.1 which was served upon the respondent and also that of sale-deed Exh. P.2. Plaintiff herself appeared as P.W.5 and deposed that she revoked the authority given to respondent No.3 and had sent a notice for cancellation thereof to him. Abdul Rahman son of Ibrahim appeared as P.W. 6 and stated that a notice was published in the newspaper also and that he had informed respondent No.3 about the cancellation of power of attorney the same day. Exh. P.6/1 is receipt of the deposit of the publication charges. Muhammad Rasheed P.W.7 states that he has heard that the power of attorney has been cancelled.
6. As against the above oral evidence respondents have produced Muhammad Hussain D.W.1 who deposed that the registered notice issued by Mst. Basri was received by Ibrahim on 30-1-1969.
Abdul Rashid D.W.2 who is attesting witness of sale-deed Exh. P.2 has stated that none of the respondents knew about the cancellation of the power of attorney on the date of execution of the sale-deed Exh. P.2. Muhammad Boota Lambardar and also Member Basic Democracy D.W.3 has stated that the suit land was sold at the instance of the plaintiff who received the sale price from Rasheed. Abdul Hamid D.WA stated that defendants Nos.1 and 2 had no knowledge about the cancellation of the power of attorney and that full payment has been made in the village. Ibrahim D. W.5 stated that at the time of sale-deed power of attorney has not been cancelled. Original, deed of power of attorney or certified copy thereof has not been produced in evidence, which being an important piece of evidence presumed to be in possession/power of the defendants should have been produced by them.
7. Learned trial Court after hearing arguments in the case held the deed of general power of attorney executed in favour of respondent No.3 had not been revoked on 27-1-1967 as the same only could have been done by another registered deed of revocation, therefore, the sale in favour of respondents Nos. 1 and 2 who had no notice about cancellation of the authority of respondent No. 3 is lawful and valid, hence, the suit was dismissed by him vide judgment and decree dated 12- 4-1969. Aggrieved of this judgment and decree Mst. Basri plaintiff filed regular first appeal in the District Court of Lyallpur (Faisalabad) which has been dismissed by learned Additional District Judge, Lyallpur (Faisalabad) vide judgment and decree dated 8-12-1969. The main reason which found favour with the learned Additional District Judge for affirming the findings of fact rendered by the learned trial Court is that neither any notice of revocation of power of attorney was given to the respondents Nos. l and 2 nor any registered deed of revocation was executed by the plaintiff, therefore, it cannot be said that the respondent No.3 could not have sold the property in favour of respondents Nos. l and 2 who have purchased the same without notice for consideration. This regular second appeal has been filed to challenge the' aforementioned judgments and decree.
8. Ch. Harnid-ud-Din, Advocate,.Has appeared on behalf of the appellant, whereas M/s. Muhad Zahid Rana and M.A. Zafar, Advocates, have appeared on behalf of the respondent/L.Rs. Of the deceased respondents. Learned counsel for the appellant has argued that the original deed of general power of attorney has not been produced in evidence by the defendants in whose possession it was nor any certified copy thereof has been produced by them, which was the best evidence, therefore, it cannot be said that the respondent No.3 had been proved to have been authorised by the said deed to sell the land owned and possessed by an old and illiterate rustic lady, therefore, it is not established that respondent No. 3 had a lawful authority to sell the land in dispute that the authority to act on behalf of the principal is governed by the Power of Attorney Act, 1882 which does not provide that revocation thereof can only be made through a registered deed of revocation, therefore the same could have been revoked even orally and also through a notice as well as publication in the press, as such the learned Courts below have wrongly held that a deed of Power of Attorney can only be revoked by a registered deed of revocation; that keeping in view the fact that appellant is an old illiterate rustic lady, respondent No.3 has no lawful authority to sell her land without her express consent which should have been taken at the time of execution of the sale-deed, as there is nothing on record on the basis whereof it could be said that she was not available at that time and that there is no material evidence to the effect that the respondent No.3 was authorised to sell the land nor any evidence to the effect that at the time of execution of deed of general power of attorney independent advice was available to the plaintiff, therefore, there being no delegation of valid authority to alienate the property even if the deed of power of attorney existed no lawful title could have been passed by respondent No.3 in favour of respondents Nos. l and 2 by alienating the land which admittedly is owned and possessed by the plaintiff, therefore, the judgments and decrees rendered by the two Courts below are illegal, as both the Courts below have misdirected themselves to the decision of real matters in issue involved in this case.
9. M/s. Muhammad Zahid Rana and M.A. Zafar, Advocates, learned counsel for the respondents have controverted the arguments addressed by the learned counsel for the appellant and have contended that a registered deed of power of attorney could only have been revoked by a registered deed of revocation and as the deed of power of attorney was admittedly not cancelled through a registered deed of revocation, it cannot be said that the sale in favour of respondents Nos.1 and 2 who are bona fide purchasers for value was unauthorized, therefore, the impugned judgments and decree are unexceptionable and are not liable to be interfered with in this second appeal.
10. I have considered the arguments addressed at the bar and have perused the record. In this case the star piece of evidence was the deed of general power of attorney because perusal of contents thereof had to determine as to whether respondent No.3 had the authority to sell the suit land or not? The case of the plaintiff as reflected in para. No.2 of plaint is that she had never authorised the said respondent to sell the property and the power of attorney was given to him for the purposes of management of the land alone. Onus in the negative stands discharged by the statement of the plaintiff. Admittedly the deed of power of attorney being in possession/power of the respondents, it should have been produced by them in evidence in support of their case.
Failure to produce the same in evidence as such will give rise to a presumption that the same if produced in evidence would have gone against the version of the respondents, therefore, it cannot be held that respondent No.3 was authorised to sell the land in dispute, hence, findings of the learned two Courts below on. Issue No.3 to the effect that respondent No.3 was authorised to sell the Land on the basis of the authority in his favour are incorrect and as such are reversed.
11. As regards the findings of the two Courts below on issues Nos.4 to 6 to the effect that the deed of power of attorney could only be revoked by a registered document suffice it to say that unless and until a document creates or extinguishes a right in immovable property worth more than Rs.100 it need not be registered. In the case in hand the notice for revocation of authority in favour of respondent No.3 as well as citation in the press neither create nor extinguish a right worth more than Rs.100, and are declaratory to the effect that the authority of respondent No.3 to deal with the property of the plaintiff has been revoked, therefore, neither under the provisions of Power of Attorney Act, 1882 nor under section 17 of the Registration Act it was necessary to get these two documents, registered or to get the deed of general power of attorney revoked through another registered deed as it is not established on record that the original deed of power of attorney granted aright to respondent No.3 to alienate the land in dispute, nor is there any provision where under revocation of Authority is possible only through a registered deed of revocation. Notice, the citation and oral evidence on record is sufficient to hold that the power of attorney had been revoked a day earlier to the execution of sale-deed. Consequently findings rendered by the two Courts below on issue No.4 are reversed and it is held that power of attorney given to respondent No.3 has been validly revoked by the plaintiff, and as such, he could not sell the land in question in favour of I respondents Nos. l and 2.
12. As regards the claim of respondents Nos. l and 2 that they are bona fide purchases for value suffice it to say that respondent No.3 himself being not competent title holder nor authorised to transfer the title, merely on the basis of a sale-deed executed by him in favour of respondents Nos. l and 2, neither title in the suit land has passed nor the provisions of section 41 of Transfer of Property Act protect their title as held in case of Muhammad Yamin and others v. Settlement Commissioner and others 1976 SCM R 489, at page 491 of which authority, it has been held as under: -- "As to the argument that the petitioners are bona fide purchasers for value, it is clear that no protection be afforded to them when it has been' found that their vendor had no right, title or interest in the demised property. "
Therefore, findings of the Courts below on issue No.6 are reversed.
13. Admittedly the plaintiff is an old, illiterate, rustic lady. It is now a well-established legal proposition that if a person transacts with a lady or is a beneficiary of such a transaction, it is he, Who is required to prove by positive evidence that at the time of entering into transaction in question independent advice was available to the lady and that she had entered into the transaction with her free consent and full knowledge of the contents/particulars of the transaction.
Refer case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1. In this case, in order to succeed the respondents had to lead evidence about the availability of independent advice and free consent and knowledge of the lady at the time of execution of deed of power of attorney which evidence has not been produced, therefore, even if it is held that the deed of power of attorney existed in favour of respondent wherein a power has been conferred upon him to alienate the property of the plaintiff, it will not be a valid authority on the basis whereof the respondent No.3 could sell the property of the plaintiff. It is, hence, held that the sale-deed Exh. P.2 executed by respondent No.2 is without lawful authority.
14. It is now well established a legal proposition that a person who has been validly authorised to alienate the property of another, he has to satisfy the Court that at the time of entering into transaction of sale of property the principal was not available and if there is no such evidence then the transaction does not hold good unless it is established on record that the transaction has been made withe knowledge and with consent of the principal. Refer case of Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341, at pages 344 and 345 of which authority, it has been held as under: -- ."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 particular 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 deduceable 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.
The second aspect which needs caution on question of validity of facts under a Power-of-Attorney is that notwithstanding an authority to alienate principal's property, the Attorney is not absolved from his two essential obligations, amongst others-- firstly in cases of difficulty (and it will be a case of difficulty if the Power-of-Attorney is susceptible to doubt about its interpretation) to use all reasonable diligence in communicating with the principal and seeking to obtain his instructions, and secondly, if tie agent deals on his own account with the property under agency, e.g. If he purchases it himself or for his own benefit, he in his own interest should obtain the consent of the principal in that behalf after acquitting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction. The following two examples given under section 215 of the Contract Act are illustrative of the intention of the law: --
(a) A directs B to sell A's estate. B buys the estate for himself in the name of C. A., on discovering that B has bought the estate for himself, may repudiate the sale, if he can show that B has dishonestly concealed any material facts, or that the sale has been disadvantageous to him.
(b) A directs B to sell A's estate. B, on looking over the estate before selling it, finds a mine on the estate which is unknown to A.B. Informs A that he wishes to buy the estate for himself, but conceals the discovery of the mine. A allows B to buy, in ignorance of the existence of the mine. A, on discovering that B knew of the mine at the time he bought the estate, may either repudiate or adopt the sale at his option.
With the aforenoted precautions about the Power-of-Attorneys and the conduct of the agents when alienating the property of the Principal, these two appeals are dismissed with costs. "
In the case in hand there is nothing on record on the, basis whereof it could be said that at the time of sale the plaintiff was not available or could not be contacted, therefore, there being admittedly no reference to her at the time of sale by respondent No.3, it cannot be said that the sale in question is valid in law, therefore, findings of the two Courts below on issue No.5 are reversed and in the issue is decided in favour of the plaintiff.
15. For what has been held above, this appeal is accepted, impugned judgments and decrees are set aside and the suit filed by the plaintiff/appellant is decreed with costs through out.