' Instant Revision arises out of judgment and decree dated 19-6-1996 passed by learned III- Additional District Judge, Khairpur in Civil Appeal No,20/1989 affirming judgment and decree, dated 21-2-1989 passed in F.C. Suit No,9/89 (old No,17/86) by the learned Senior Civil Judge Thari Mirwah.
2. Briefly stating facts are that the respondent No,1, step-son of the appellant filed a suit seeking declaration of his title in respect of transfer of one-third share of the appellant in the agriculture land which she held alongwith her two sisters.
3. It was alleged by the respondent No,1 in suit that appellant through respondent No,2 (husband of applicant and real father of the respondent No,1) who was her general attorney as well, out of fondness for him and on account of advance age had directed him to transfer her share in property admeasuring 17 and 18 acres as "Hiba-bil-Awaz" on nominal price of Rs,15,000. In furtherance of her desire, respondent No,2 transferred her share in favour of his son by recording statement before Mukhtiarkar, Mirwah on 26-6-1985. One of the conditions of Hiba as averred in the plaint was that the respondent No,1 would bear the expenses of applicant and respondent No,2 for the rest of their life and in default, entire property to revert back.
4. It was further averred that on the instigation of other co-sharer applicant challenged the said transaction. In order to protect his interest suit was filed seeking declaration as to his title.
5. Applicant contested the suit seriously. In her written statement she denied the entire transaction, she averred that the power of attorney was for limited purposes, which too was revoked and she never instructed her husband to bestow her share in property unto respondent No,1 by way of "Hiba-bil-Awaz". She further averred that there were serious disputes between the .Spouse and she had left the house of her husband and obtained decree of dissolution of marriage.
6. Suit of respondent No,1 was decreed on 21-2-1989 but same was reversed in appeal by the Third Additional District Judge on 14-5-1991; which appellate judgment was set aside by this Court in Revision No,46/1991 and matter was remanded, for decision afresh, to the first Appellate Court with direction to rehear the appeal and give detailed judgment after framing point of determination and examining the evidence of the parties.
7. After the remand, the first Appellate Court maintained the judgment and decree of trial Court vide judgment dated 19-6-1996, which is impugned herein.
8. Applicant contended that the judgments .Of Courts below suffer from misreading and non- reading of evidence in proper perspective; Appellate Court did not follow the requirement of Order 41, Rule 31, C.P.C. While doing so the Courts below have failed to exercise the jurisdiction vested in them. In support of his contention he relied upon 1994 SCMR 818, 1997 SCMR 1811, 1996 SCMR 336, PLD 1978 Karachi 612, 1999 MLD 1206 and Muhammadan Law by Mulla.
9. Respondents supported the judgment of the Courts below and submitted that concurrent findings of fact cannot be agitated in revisional jurisdiction.
10. The moot question requiring determination by the Court below was "whether respondent No,2, Khushi Muhammad had authority to confer property of the applicant Mst.Manna by way of Hibabil- Awaz on his real son (out of his first wife) Muhammad Akhtar". This question was covered by Issue Nos.4 and 5 out of as many as 8 issues framed by the trial Court which for reference are reproduced as under:- "4. Whether the plaintiff (it should read the defendant No,4) was empowered by the defendant Mst.
Manna to dispose of the land.?
5. Whether at the time of alienation of the suit land by Khushi Muhammad, in favour of the plaintiff the power of attorney in favour of Khushi Muhammad was in force."?
11. Learned trial Court decided both the issues in affirmative taking into consideration that power of attorney, dated 28-7-1961 (page 83) was withdrawn on 3-7-1985, whereas Hiba-bil-Awaz was made on 26-6-1985 by way of statement recorded by Mukhtiarkar Mirwah (page 139). Same consideration prevailed upon the first Appellate Court (page 205).
12. Keeping in view the scope of revisional jurisdiction and summarised in 1994 SCMR 818 (823) as follows: "It is to be seen that the findings of fact recorded by Courts below are fanciful, perverse or it has been arrived at by a process which had rendered the exercise of jurisdiction vested in the Court defective. In case of misreading of evidence or non-consideration of legal evidence on record, the exercise of jurisdiction and power possessed by the Court is rendered defective, justifying interference by the High Court in exercise of its revisional jurisdiction."
13. In the light of above parameter scrutinizing the evidence on the pivotal issue, firstly looking at the pleading of the respondent No,1 (plaintiff), relevant pleadings are contained in paras. 4, 5 and 6 of plaint. In para. 4 it is stated that respondent No,2 is General Attorney of applicant. Para. 5 narrates the directions given to respondent No,2 to transfer the property as "Hiba-bil-Awaz' and para. 6 gives account for implementation of direction of Hiba-bil-Awaz by recording statement before Mukhtiarkar on 26-6-1995.
14. In his deposition he stated: "She gifted her share to me. She gifted her property by oral words. She directed my father to make statement on her behalf. My father gave the statement before Mukhtiarkar Mirwah in presence of namely, Muhammad Sharif and Muhammad Munshi. I paid Rs,15,000 to my mother and father when she gifted her share to me orally. Then the land was mutated in my name." (47---49).
' He further deposed that: "In presence of Munshi and Sharif orally gifted the property in question and directed my father to give the property on her behalf. In Tando Mir Ali Village, the defendant orally gifted the property"
(page 51).
15. He produced copy of Dakhal Kharaj as Exh.29 which records the statement of respondent No,2.
Statement therein reads as: "I Khushi Muhammad, s/o Fatehuddin, caste Dogar r/o Faizabad Colony, House No,292, DistricfOkara, Province of Punjab at present Tando Mir Ali, Taluka Mirwah, District Khairpur hereby state with sound mind, free will in capacity as General Attorney of Mst. Manna Bibi d/o Muhammad Din, w/o Khushi Muhammad myself, hereby give you in handwriting that Mst. Manna Bibi owns agricultural land in Deh Allah Dini Aamur, Taluka Mirwah District Khairpur S.Nos. 85(3-17), 90/1-14, 92/1-33, 93/4-0, 99/1-12, 122/1-10, 123/1-4, 124/1-39, 125/1-0, 126/18, 128/0-38, 129/1-0, 561/2-15, 554/2- 29, 600/3-33, 602/1-37, 621/2-10, 626/2-15, 627/1-16, 638/1-39, 639/0-11, 640/1-23, 598/3-30, 595/1-5, 629/2-31 and 640/3-19 out of total area 52 acres area 17-19 to the extent of 1-3rd share of Mst.
Manna Bibi according to her instruction is sold to her son Muhammad Akhtar s/o Khushi Muhammad in sum of Rs,15,000 received money before witnesses. Nothing is mentioned about handing over possession (p. 63)."
16. Respondent No,2 signed the statement as registered attorney of applicant Mst. Manna.
Statement is witnessed by Muhammad Sharif and Muhammad Munshi.
17. P.W. 2 Muhammad Sharif in this context deposed on 4-9-1988: "About more than three years back the defendants Nos.3 and 4 came to my house at Tando Mir Ali.
They disclosed to me that defendant No,3 orally gifted her property in question to plaintiff."
' P.W. 3 Munshi deposed on 4-9-1988 that: ''More than three years back defendant No,4 gave statement before Mukhtiarkar Mirwah that defendant No,4 gifted the suit property in favour of plaintiff."
' D.W. 1 Khushi Muhammad deposed on 29-6-1989 as under: "Mst. Manna had asked me to transfer her land to the plaintiff Muhammad Akhtar as 'Hiba'. I had paid Rs,15,000 to Mst. Manna as "Hiba-Bil-Awaz which were given to me by the plaintiff Muhammad Akhtar. Possession of the suit was delivered to the plaintiff Muhammad Akhtar. I then in capacity of attorney of Mst. Manna gave statement before Mukhtiarkar, Mirwah and transferred the land in question to the plaintiff Muhammad Akhtar. I admit the claim of the plaintiff made in present suit."
18. Now adverting to the pleading of the defendant No,3 Mst. Manna, the petitioner herein. In written statement, she admitted that her husband, Khushi Muhammad was empowered to manage and supervise her share in the suit property. She denied that any authority to sell or dispose of the land was given. She being illiterate, contents were not explained to her. She further denied the factum of gift in unequivocal terms. She further stated that relationship between spouse were so strained that it resulted in a suit for dissolution for marriage and that power of attorney was cancelled on 7- 3-1985. Recording of any statement by defendant No,4 in favour of plaintiff was seriously disputed.
19. Evidence of defendant No,3 was recorded on 12-2-1989, in her deposition she stated that: "I married with Khushi Muhammad about 28 years back. I had given Power of Attorney to Khushi Muhammad for looking after my property. I was living at Okara. The plaintiff Akhtar had never lived with me at Okara. He has neither looked after me nor he rendered any service to me. Since last 10- -12 years myself and my husband Khushi Muhammad were. On disputed terms. Khushi Muhammad sometimes lived with me, at Okara and sometimes with his first wife at Chak No,55, Sahiwal. Akhtar is son of Khushi Muhammad, from his first wife. He is residing with his mother. I am residing separately from my husband since last 5/8 years."
' She further deposed: "I never asked my husband Khushi Muhammad to gift my landed property to the plaintiff Muhammad Akhtar. I never asked my husband Khushi Muhammad for gifting out my landed property to the plaintiff Muhammad Akhtar even at Tando Mir Ali. I knew P. Ws. Munshi and Sharif. I have never gone to their house during the period 8/9 years.
' Neither my husband Khushi Muhammad nor his son Muhammad Akhtar ever paid me Rs,15,000 as 'Hiba-bil-Awaz'. The defendant Khushi Muhammad gave statement for transfer of suit land before Mukhtiarkar, Mirwah without my consent. I had not given any power to the defendant Khushi Muhammad for disposing of my land in any way."
20. In cross-examination, she denied all the suggestions to the contrary. She was not cross- examined on the point that spouses were on disputed terms since 10/12 years before or, that no authority was given to Khushi Muhammad to transfer land in the name of plaintiff by giving any statement before Mukhtiarkar.
21. Defendant No,3, in support of her case examined one Muhammad Sajwar, her nephew, who deposed that plaintiff never resided with Mst. Hanna and that spouses are living separately since 5/8 years and Mst. Manna had never come to Sindh since 8/9 years.
22. In the plaint, the plaintiff had pleaded, that Mst. Manna had authorised her husband to transfer the suit property as 'Hibabil-Awaz' for Rs,15,000 and in furtherance defendant No,3 transferred the property and recorded statement before Mukhtiarkar (p.25). But his evidence on the point is not in conformity with pleading. In evidence, he stated that Mst. Manna orally gifted him the property and directed his father to make statement. In cross-examination he stated that in presence of Munshi and Sharif orally gifted the property at Tando Mir Ali. P.W.2, Muhammad Sharif deposed that it was disclosed to him that defendant No,3 orally gifted her property to the plaintiff when defendants Nos.3 and 4 came to his house, From his statement, presence of plaintiff is not established, nor presence of other witness Munshi who only deposed that he is witness to the statement before the Mukhtiarkar that defendant No,4 gifted the suit property in favour of the plaintiff.
23. Looking at the statement, dated 26-6-1985 recorded before the Mukhtiarkar, reproduced in para. 15 above, said statement nowhere reflects that the defendant No,4 is carrying out the alleged instructions of the defendant No,3 (Mst. Manna) to transfer the property by way of 'Hiba-bil-Awaz' or by Hiba simpliciter. On the contrary it records the statement to the effect that as General Attorney he is instructed to sell the property to the plaintiff for Rs,15,000.
24. The statement recorded by the defendant No,4 gives entirely new version as. To the transaction of sale of property was never pleaded by the plaintiff.
25. In view of the powers conferred under the Power of Attorney, Khushi Muhammad had no authority to gift and the statement recorded before the Mukhtiarkar does not reflect the gift as claimed by the plaintiff but a sale which is not the case of plaintiff.
26. The Apex Court in case of Binyameen v. Hakim 1996 SCMR 336 at page 340 placing reliance on Government of Pakistan v. Haji Muhammad PLD 1976 SC 469 held that "no evidence can be led or looked into in support of a plea which has not been taken in pleading. A party is required to plead facts necessary to seek relief claimed and he would be entitled to produce evidence to prove these pleas. Variation in pleading and proof is not permissible in law." In the instant case, the plaintiff pleaded oral gift, whereas statement recorded by Mukhtiarkar tends to show sale on the basis of Power of Attorney.
27. The evidence of plaintiff, does not correspond to the pleading. Both the Courts below did not act legally and have committed material irregularity resulting in miscarriage of justice.
28. The clause on the basis of which defendant No,4 alleged to have transferred property of defendant No,3 in favour of plaintiff by way of 'Hiba-bil-Awaz' reads as under:-- {{URDU TEXT}}
29. There is no cavil to the proposition that the authority of an agent may be expressed or implied where an act purported to be done under expressed authority, then the agent or the beneficiary of a purported act seeking ratification of said act must establish that such authority in fact existed and was fairly and validly exercised.
30. In the instant case plaintiff alleged that "Mst. Manna directed defendant No,4 to transfer the subject property as 'Hiba-bil-Awaz' and in furtherance to such direction the defendant No,4 transferred the property after accepting a sum of Rs,15,000 as consideration, thereafter statement to that effect was recorded before the Mukhtiarkar, Mirwah on 26-6-1985.
31. But the statement dated 26-6-1985 (reproduced in para. 15 supra) by which property was allegedly transferred reflects that the statement was not made on the basis of oral authorization as alleged but as a General Attorney. Secondly, transaction as per statement purported to be a sale whereas it was pleaded and attempted to be proved to be Hiba.
32. For a gift to be valid, three essential ingredients must be proved, an unequivocal declaration of gift by the donor, (2) acceptance of gift expressed or implied and last but not the least, (3) delivery of possession of the subject gift by the donor to the donee (for reference see Raees Muhammad Mushtaq v. Hyder Bux PLD 1975 Kar. 416 and Ali Ahmed Khan Talpur v. Government of Sindh PLD 1976 Kar.
316.
33. In the instant case the pleading and evidence of the plaintiff are at variance, gift is pleaded but presence of plaintiff (donee) and witness Munshi at the time of alleged gift is not proved even the presence of appellant is doubtful. Secondly delivery of possession has neither been pleaded nor proved on the contrary, the entry purportedly recorded mutation of plaintiff's name reproduced in para. 15 supra, specifically mentions of a fact that "nothing is mentioned about handing over the possession".
34. It is settled position in law that-when the subject of gift is susceptible of delivery of possession. It is imperative that actual or constructive possession must be delivered by the donor to the done.
Onus to prove such delivery of possession is always on the done which burden he has not discharged.
35. Power of attorney given to a person standing in a proximity of relationship is to be construed strictly. Honourable Supreme Court in a case of Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 cited with approval of following passage from Fida Muhammad v.
Muhammad Khan PLI) 1985 Supreme Court 341:- 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 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.
' The second aspect which needs caution on question of validity of acts 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 the 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 acquainting 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 for 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." and the Apex Court disapproved the alienation of the property by the Attorney in favour of his wife.
Likewise taking stock of the evidence, I have no hesitation to hold that both the Courts below failed to appreciate the evidence in its proper perspective resulting in gross miscarriage of justice.
' For the aforesaid reasons the judgment and decree passed by the learned trial Court and affirmed by the Appellate Court are set aside and suit of the plaintiff is dismissed.