SAEED-UR-REHMAN FARRUKH, J. - This revision petition under Section 115 Code of Civil Procedure by plaintiff is directed against judgment dated 11.12.1996 passed by Additional District Judge Lahore whereby her appeal assailing the judgment and decree of Civil Judge dated 23.5.1995, dismissing her suit for cancellation of sale-deed dated 10.11.1985 in respect of land measuring 6 kanals, 6 marlas, was rejected.
2. The petitioner is consanguine sister of respondent No. 1. Their father Jan Muhammad died on 25th June, 1981. He owned substantial residential and agricultural land which devolved upon his heirs inclusive of the petitioner and respondent No. 1. The petitioner thus became owner of some property inclusive of the suit land measuring 6 kanals and 6 marlas, situated in Had Bast Baghbanpura, within Urban Limits of Lahore City.
3. The petitioner averred in her suit that on 21.10.1984 she was called to the house of one Abdul Majid, real maternal uncle of respondent No. 1, where she was persuaded to execute general power-of-attorney in favour of respondent No. 1 to enable him to look after the ancestral property.
It is under bona fide impression that she thumb marked it. Her thumb impressions were also obtained on some other papers and register of deed writer. Later on she came to know that respondent No. 1 was selling the suit land on the plea that he was, in his capacity as her general attorney, authorised to do so,-whereupon she cancelled the power-of-attorney on 29.12.1985, and also notified respondent No. 1 in this behalf.
4. In their written statement the respondents took up the plea, inter alia, that the petitioner had not challenged the general power-of-attorney and had confined her challenge to the validity of the sale-deed and the suit, as such, could not proceed. A few other preliminary objections were also raised.
On facts, it was pleaded that the petitioner had received Rs.75,000/- as consideration for the suit land and thereafter she executed the general power-of-attorney, besides a receipt in token of receipt of the amount as well as an Iqrarnama. It was averred that shares of other legal had also been purchased by respondent No. 1. The allegation of fraud/misrepresentation was stoutly controverted. It was also asserted that respondent No. 1 had launched two housing schemes known as "San Dia Park" and "Data Park" and the present suit had been filed solely to pressurize respondent No. 1 with a view to extort money.
5. Learned trial Judge framed the following issues arising out of the pleadings of the parties:- ISSUES.
(1) Whether the suit is not maintainable in its present form? OPD.
(2) Whether the suit is bad for mis-joinder and cause of action? OPD.
(3) Whether the suit is bad for non-joinder of parties, if so, who they are what is the effect of their non-impleading? OPD.
(4) Whether the suit is barred by limitation? OPP.
(5) What is the effect of non-challenging of the general power-of- attorney on the strength of which the impugned sale-deed was allegedly executed? OPD.
(6) Whether the suit has been incorrectly valued for the purposes of Court-fee and jurisdiction. If so, what is its correct valuation and to what effect? OPD/OPPs.
(7) What is the effect of preliminary Objection No. 5 of the written statement? OPD.
(8) Whether the plaintiff has not come to the Court with clean hands? OPD.
(9) Whether the plaintiff is estopped from lodging this suit by her act and conduct? OPD.
(10) Whether the suit is false and frivolous, if so, whether the defendants are entitled to special costs under Section 35 (a), CPC, if so, to what amount? OPD.
(11) 'Whether the defendant No. 1 had tricked the plaintiff and thereby got executed general power- of-attorney as asserted in the plaint? OPP.
(12) Whether the plaintiff is an illiterate and Parda Nashin Lady? OPP.
(13) Whether the impugned sale-deed of the disputed property being illegal, void, fraudulent and without consideration is in operative upon the rights of the plaintiff? OPP.
(14) Whether the plaintiff is entitled to the relief prayed for? OPP.
(15) Relief.
6. On behalf of the petitioner Muhammad Saleem deed writer appeared as PW-1 who deposed that he scribed the General power-of- attorney, an agreement and a receipt about payment of Rs.75,000/- on the request of respondent No. 1 at the factory of Ch. Abdul Majid and the same were read out to the petitioner whereafter she thumb marked the same and the marginal witnesses also put their signatures. He deposed that no payment was made in his presence. The exact words used by him in this respect may be reproduced :- {{urdu text miss}} The petitioner, as her on witness reiterated her stand as taken in the plaint. She contended that no payment was made qua the suit land to her. She produced copy of General power-of-attorney Ex.P-1, copy of agreement P-2, copy of receipt P-3, copy of deed of cancellation of power- of- attorney P-4 and copy of sale-deed P-5. ?
7. On behalf of the respondent Shahbaz Sajid Saeed, Advocate appeared as DW-1 and deposed that he as local commission attested General power-of-attorney Ex.P-1. Abdul Khaliq, DW-2 deposed that he signed one document i.e. General power-of-attorney (Ex.P-1) as a marginal witness. According to him payment of Rs.75,000/- was made to the petitioner. He conceded that he was the real maternal uncle of respondent No. 1. He asserted that the petitioner was also related to him, being brother's wife "{{Urdu text}} Mian Abdul Majid DW-3 who is real maternal uncle of respondent No. 1 deposed about his signatures on the above three documents as marginal witness and payment of Rs.75,000/- to the petitioner. Nazir Ahmad respondent No. 1 appeared as DW-4 in support of his on case. According to him payment of Rs.75,000/- was made at the time of affixation of thumb impression by the petitioner on the three documents. He conceded that Abdul Majid was his real maternal uncle. Copy of plaint (of another suit between the parties) was tendered in evidence as D-6.
Muhammad Aslam stamp vendor (PW-3) again entered the witness-box and deposed that the three documents were scribed by his brother Waris Ali" on his behalf. He deposed. {{urdu text}}Roiitin"
8. Learned Civil Judge held vide issue No. 1 that respondent No. 1 x did not "trick" the petitioner for procuring power-of-attorney in question. On issue No. 13 finding recorded was .That no fraud was committed by respondent No. 1 and the sale-deed was not void or illegal and that it was with consideration.
These findings were affirmed by the lower Appellate Court and the Appeal of the petitioner was dismissed. Hence this civil revision.
9. I have heard learned counsel for the parties and also perused the record.
It is urged by the learned counsel for the petitioner that the petitioner , had been defrauded by her step brother, respondent No. 1 and whereas it was represented to her that General power-of- attorney was being procured from her with a view to manage the ancestral property, with mala fide intention, power to alienate the suit property was got inserted therein. It is urged that taking benefit of this clandestine power/authority respondent No. 1 sold the suit property to his minor sons, respondents Nos. 2 and 3. It was also contended that the fact that fraud was perpetrated is established from the circumstance that after getting authority to alienate there was no need for procurement of separate receipt and Iqrarnama, showing receipt of payment of sale price, on the same day, from the petitioner. The additional argument is that the petitioner being an illiterate lady, it was necessary that some independent advice was made available to her at the time of execution of these documents but this requirement was not fulfilled.
On the other hand, Sh. Zia Ullah, Advocate, learned counsel for respondent No. 1 contended that as it had been concurrently found by two learned Courts below that no fraud was committed in the matter this Court should not interfere in the matter particularly when no misreading or non- reading of evidence could be pointed that nor any gross irregularity or illegality, vitiating the impugned judgment could be highlighted.
10. It is true that there is concurrent finding of fact by both the learned Courts below that no fraud was perpetrated upon the petitioner and she had brought a false suit despite having received the sale consideration. However, I find that certain questions, involving legal implications of far I reaching consequences have not been attended to by both be-learned Courts and thus interference in revisional jurisdiction is called for to ensure that justice is done in the case.
11. To begin with, it is to be seen as to whether these documents have been proved on record according to law or not. The 'Iqrarnama Ex.P-2 and receipt Ex.P-3 have remained unproved. In both the documents names of two persons i.e. Fazal Karim and Abdul Majid are mentioned as marginal witnesses out of whom only Abdul Majid are mentioned as marginal witnesses out of whom only Abdul Majid was produced as DW-3. The scribe has also not been produced.
According to Muhammad Aslam PW-1 these documents alongwith General power-of-attorney Ex.P-1 were scribed by his brother, Waris Ali who has not been summoned as a witness. Under Article 79 read with Article 17 of Qanun-e-Shahadat Order, 1984 two attesting witnesses were required to be produced to prove these two documents and since this legal requirement had not been fulfilled both are liable to be excluded from consideration, as having remained unproved. See "Sana Ullah and another Vs. Muhammad Manzoor and another" (PLJ 1996 SC 526).
It may be noticed that the petitioner had admitted to have put her thumb impression on one document i.e. General power-of-attorney and claimed to have been persuaded to thumb mark a few plain papers. This amounted to denial on her part to thumb mark these documents i.e. Agreements P-2 an4 receipt P-3 and thus it became the bounden duty of respondent No. 1 to produce the second Marginal witness i.e. Fazal Karim but he failed to do so. We are thus left with General power-of-attorney Ex.P-1.
12. As regards General power-of-attorney Ex.P-1, it may be kept in mind that respondent No. 1 is step brother of the petitioner. The petitioner is illiterate and aged lady and as such entitled to the same protection as afforded to a Purdah Nashin lady. See " Taleh Bibi Vs. Mst. Maqsoodan Bibi" (1996 PSC 915).
Law leans heavily in favour of Purdah Nashin Lady and it was necessary to ensure that at the time of execution of any document by her involving alienation/right to alienate her property independent advice was available to her. Reliance is placed on Mst. Hafiza Bibi Vs. Ali Hassan and others (1994 PSC 106).
Applying the above principles of law it is to be seen as to whether any independent advice was available to the petitioner at the time of execution of General power-of-attorney. Answer is in the negative. Abdul Khaliq DW-2 is an interested witness, he being real maternal uncle of respondent No. 1. It has to be kept in mind that petitioner is step sister of respondent No. 1. He has deposed:- Jv ^ .J Uoij it/'- It is difficult to swa llow the following explanation offered by Abdul Majeed in his testimony:- It is in the evidence of the petitioner that she had two grown up sons namely Zafar Ali and Muhammad Jamil. It is really intriguing as why the petitioner was called by her Dewar (husband's brother) Abdul Majid to his house for execution of document Ex.P-1. Why this hush attitude was adopted?
13. That is not all. Assuming that General power-of-attorney in question was executed by the petitioner of her free volition, it did not give unbridled authority to respondent No. 1 to alienate the suit property to his two minor sons without seeking consent from the petitioner. See Fida Muhammad's case (PLD 1985 SC 341 at 344).
In Haji Faqir Muhammad case (PLD 1997 SCM R 1811 at 1814, 1815, I 1816) it has been authoritatively laid down by August Supreme Court that holder of General power-of-attorney, before alienating the property of his principle in favour of those who are so closely related to the agent that ultimate beneficiary would be the agent himself should, in his interest obtain the consent of the principal failing which the principal would be at liberty to repudiate it.
Since neither Abdul Majid nor Abdul Khaliq can be capable of giving independent advice to the petitioner, the General power-of-attorney is liable is to be declared to be not binding on the petitioner.
The alleged sale by respondent No. 1 in favour of his minor sons is also liable to be declared to be ineffective on the ownership fights of the petitioner as it is violative of the law, declared in Fida Muhammad's case and Faqir Muhammad's case supra.
14. Faced with this situation, Sh. Zia Ullah, Advocate learned counsel for respondent No. 1 tried to argue that the petitioner had also sold her other property to respondent No. 1 and had failed upto level of Supreme Court. I am afraid this submission needs little attention. Suffice it to say that each case proceeds on its on facts and merely because the sale of some other property by the petitioner to respondent No. 1 had been held to be valid, per se, provides no ground to non suit her in this case as well, despite the above legal position of the case.
15. Both the learned Courts grievously erred in failing to apply correct law to this case, on the admitted/proved facts. The petitioner was entitled to grant of decree as prayed for by her.
16. Resultantly, this revision petition is accepted and after setting aside both the judgments/decrees of learned Courts below, the suit of the petitioner is decreed as prayed for, with costs throughout.