; The facts leading to this Petition, stated briefly are that a plot of land with some hutments, admeasuring about 1866 yds. (Plot No, 11/13 Survey Sheet No, RY. 9) which originally belonged to two Hindus, was purchased by Noman Dawood Bhai and his two sons Zainul and Dawood. This transaction took place on 3-11-1947. Subsequently on 25-12-1947, Da wood son of Noman died in an air crash and the plot came to be the property of the remaining two purchasers.
2. On 11-5-1948, they had executed a power of attorney in favor of petitioner Qamardin who in now represented by his Legal Representatives. This power of attorney, as described in para. 2 of the petition, was "to authorize him to take steps to put up a new building on the site and to do other acts and things for them, and on their behalf." Subsequent to this on 21-11-1948, they granted a ten- year lease of this plot to the petitioner, who in turn gave a lease for a like period to Messrs.'
Sungreen & Co. On 15-3-1949.
3. As, under the Administration of Evacuee Property Ordinance, the sale executed by the Hindu in favour of the Muslim Purchasers, required to be confirmed by the Custodian of Evacuee Property, the same was considered and was confirmed by the Deputy Custodian (Judicial) on 20-9-1952, upon an application made to him in this behalf. This order was subsequently reversed by the Custodian by an order dated 19-11-1955, but that order was quashed in Constitutional Petition No, 5/56 filed in the High Court. Messrs.' Sun green & Co. Took the matter to the Supreme Court, whereupon it was ordered to be remitted to the Custodian, for-making further enquiry into questions formulated, and thereafter to decide the case in accordance with law. Amongst the questions specified, one was, "whether at all material times the property was evacuee property by virtue of the allegations that the new owners are themselves resident in India, and their agent Qamardin is a person whose appointment has not been approved as required by law. In relation to this question the Custodian will necessarily have to consider whether after the execution of lease deed in his favour Qamardin can be said to be any longer a mere agent of the owners since he has developed an independent interest in the property. This question has another aspect also, namely whether a person who occupies two positions in respect of the property in question, one as agent and the other as a lessee from the owner in his own right is a suitable person to be approved as an agent.
4. Before the Custodian, the petitioner made applications for confirmation of the lease, and also of the power of attorney, in view of the above-quoted observation of the Supreme Court; but after hearing the matter the Custodian by his order dated 11-11-1961 concluded that the power of attorney executed in favor of Qamardin had not been approved or accepted by the Custodian, hence it was not a valid power of attorney. He further held that since he had no valid power of attorney, his application for confirmation of sale made in favor of the Muslim Purchaser, was itself not competent. He thus finally held the property to be still evacuee. This order was challenged and the matter was once again remanded to the Custodian who on 6-5-74, finally rejected the application for confirmation on merits and this is the impugned order in this Petition.
5. An additional circumstance that need be noticed, is the death of petitioner Qamardin during the pendency of his applications before the Custodian. It stated that an objection had been raised before him about the competence of further proceedings, which were initiated by Qamardin on the basis of a power of attorney and the Custodian dealt with the question in his observations in para. 31 of his order as under:- "It is an admitted position that Qamardin who was all along fighting on the strength of power of attorney executed in his favor on the 11-3-1948 right up to 7-11-1970, when he died, and his unapproved authority as attorney, was also got buried along with his person and the proceedings are being conducted on behalf of his heirs who inherit nothing. It is doubtful whether the learned Advocate of the respondent has been engaged to conduct the case by deceased Qamardin and as such after his death, could legally prosecute the matter because his power also came to end with the death of his client. So far the legal heirs of deceased Qamardin, they do not hold powers of attorney of the vendees and had no locus standi or authority to appear or represent the respondents, in manner in these proceedings."
6. In these circumstances, and since the present petition has been filed by the deceased petitioner through his Legal Representatives Mr. Abdul Aziz learned counsel for the contesting respondents raised an initial legal objection to the maintainability of this petition. He contended that the right to file proceedings to challenge the order of the Custodian in this case, was derived by the deceased Qamardin, only from the power of attorney which he claimed, was executed, in his favour by the Muslim Vendees of the property. This power of attorney though not valid, as it was not approved by the Custodian, came to a termination on the date of death of Qamardin. It ceased to be operative and the Legal Representatives of the deceased could not claim to have acquired any right or interest, so as to enable them, in law, to prosecute the cause. The authority to do or perfrom certain acts was given to the deceased under the power of attorney which constituted him an agent and that authority ceased to be exerciseable with the death, as it was personal, and it did not devolve on the legal representatives. The learned counsel submitted that the present petition was totally incompetent in the form in which it was filed, as it was the petition of a dead person, brought by orders on whom no right to file devolved, nor could they be said to be aggrieved by the impugned order of the Custodian. He relied on section 201 of the Contract Act which is as under :- "An agency is terminated by the principal revoking his authority or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors."
7. The learned counsel then referred to the case of Mst. Karam Bibi and others v. Mehr Ali Khan and others (1) in which, while considering the question whether an attorney of a deceased decree- holder could execute the decree it was observed at page 878, that he could not so execute unless he obtained power of attorney from the legal representatives of the deceased decree-holder.
8. Mr. K. Ghani the learned counsel Per the petitioner being confronted with this legal objection referred to ground No, 6 of the petition, wherein it had specifically been contended that the power of attorney of Mr. Qamardin, was for consideration, and irrevocable. The same did not terminate with the death of Mr. Qamardin. Lie contended that this assertion was not controverted by the respondents as no counter-affidavit in denial had been filed. He then proceeded to show from the documents,
(1) AIR 1933 Loth. 876 ' tic facts which according to him constitute the consideration for this power of attorney. These documents were, firstly an agreement to build which is dated 10-5-1948 and is one day prior to the execution of the power of attorney. In this agreement deceased Qamardin was described as the "Builder". And the owners of the plot had to pay to him a total sum of Rs, 17,500 for carrying out the specified building work but the excess amount required, if any, for building the ground floor was to he supplied by the "Builder", On 30-11-1948 again a lease deed was executed by the owner in favor of Qamardin, wherein he was described as a "Lessee" of the same property and it was stipulated that he would jointly construct the ground floor on the plot, with the lessors. In clause 4 of this deed however Qamardin was shown to have paid a sum of Rs, 1,200 on account of rent for three months of the lease in advance to the lessors.
9. According to the learned counsel therefore Qamardin bad acquired an interest in the property which was the subject-matter of the power of attorney, which was heritable. He had also parted with some amounts and undertaken to spend money which was the consideration ultimately for the power of attorney executed by the owners, whereby he was constituted their agent. In his submission section 202 of the Contract Act was applicable to the facts of the case and Qamardin's power of attorney did not terminate merely on account of his death. Section 202 of the Contract Act reads as under:- "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."
' This argument appears attractive but cannot be sustained upon the language used in section 202 of the Contract Act itself, which has the effect only of saving the interest of the agent in the property and not the actual termination of the agency itself. The interest of the agent petitioner, in the said property, as is claimed, was that of a "Builder" and thereafter of a "lessee". Upon an assumption that the petitioner did possess such interest, even that was subservient to the original sale which was sought to be approved but was not approved. Unless the sale was an approved sale, the transferee acquired no rights in the property, so as to be capable of transferring any rights to the petitioner. Section 202 of the Contract Act can have the effect of protecting this interest, whatever be its nature or extent. The primary need that the petitioner bad to face was to obtain the approval of the Custodian to the sale so as to legalize it because that was e foundation of the interest that he claimed in the property. To obtain that approval, be had to initiate and also to continue proceed-gas before the Custodian. For doing this he again needed an authority from the transferees, and which authority is definitely distinct from the tersest of the agent, in the property, described above. In such circumstances section 202 of the Contract Act cannot be read to confuse the interest in property with the authority to file or continue proceedings hat authority is totally independent of the interest claimed by the petiole in the property which is the subject-matter of the proceedings; nd section 202 of the Contract Act is not attracted to such an authority o protect it from being terminal ted on account of the death of the, gent.
10. The learned counsel then relied on the case of Fazal Din v. Lahore Improvement Trust (1) where while considering the nature of the interest necessary for filing a petition, their Lordships observed at page 231:- "It is clear from the above that the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise."
The learned counsel contented that the petition filed by the Legal Representatives of the petitioner's agent, as they had a right to do so, as they were interested to secure the property that devolved on them on account of the petitioner's death. Now, as stated above, the sale not being confirmed by the Custodian, that order could be challenged either by the purchasers or their attorney on their behalf. But the right t3 challenge that order cannot devolve on the legal representatives of the attorney; and unless it so devolves they cannot claim any personal interest within the meaning of the observation of their Lordships quoted above.
11. In the case of Mujib-un-Nissa v. Abdul Bahim (2) the question under consideration was factually similar to the one in this case. An attorney presented a document for registration, before the Registrar, after the death of the executant. The document was registered and its legality came to be questioned. It was observed while considering this question at page 22 "Now the case in hand is that of a person ,who, when he presented the deed for registration, as he says he did, on November 4, 1889, stood in no other relation to the deed than that, before the death of the person executing it, he had held his power of attorney, it is perfectly plain, not merely from the general law, but from the terms of this S. 32 itself, that after the man's death the only attorney who would have any locus standi would have been the attorney of the representatives or assign of the deceased."
I am in respectful agreement with what was held in this case, and in the result, find that the legal representatives of the deceased attorney Qamardin have neither any right nor any personal interest to file or prosecute the petition to challenge the action of the Custodian, as they have done. This petition is therefore dismissed as not maintainable on this preliminary ground but with no order as to costs.
(1) PLD 1969 SC 223 (2) (1900) 28 I A 15