' It will be advantageous to make a reference to the relationship, inter se the parties to this lis. Noor Khan, appellant No,2 and Sher Khan deceased are sons of Sher Jang. Muhammad Aslam, appellant No,1 is the son of Noor Khan, appellant No,2 while the respondents are the sons and daughters of the said Sher Khan. The suit land was owned by Sher Khan who proceeded to execute a general power of attorney in favour of Noor Khan, appellant No,2 which was registered on 10-8-1971. On the basis of the said power of attorney, appellant No,2 proceeded to make a gift of the suit land in favour of his son, appellant No,1 vide Mutation No,110 attested on 3-1-1972. Said Sher Khan died on 27-6-1974. On 26-2-1975 respondent No,1 filed a suit for possession of the suit land. The appellants and respondents Nos.2 and 3 as also Mst. Malik Bano, widow of Sher Khan where impleaded as defendants. Mst. Malik Bano died and was deleted. He pleaded that his father had never authorised appellant No,2 to alienate his property by way of sale or gift, that the power of attorney, dated 10-1- 1971 is illegal and so is the said Mutation No,110. Appellant No,1 on the one hand while appellant No,2 and respondents Nos. 3 and 4 on the other filed separate written statements, and supported the said documents and transactions. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit of respondent No,1 vide judgment and decree, dated 30-10- 1984. The learned trial Court found that the power of attorney was executed in favour of appellant No,2 but held that he was not authorised to make the gift in favour of his son on the basis of the same. Against the said judgment and decree the present appellants filed a first appeal while respondent No,1 filed cross-objections vis-a-vis the findings upholding execution of the power of attorney. Both the matters were heard by a learned Additional District Judge, Khanewal who dismissed the appeal as well as cross-objections on 15-1-1987.
2. Learned counsel for the appellants argues that once it was found that the power of attorney was duly executed by late Sher Khan in favour of his brother i,e, appellant No,2, the findings that he was not authorised to make the gift in favour of his son on the basis of said power of attorney are contrary to law. Learned counsel for respondents, on the other hand, argues that the power of attorney does not spell out any such power as being pleaded by the learned counsel for the appellants and this supports the impugned judgments and decrees of the learned lower Courts.
3. I have gone through the record with the assistance of the learned counsel for the parties. I have examined the power of attorney, certified copy whereof is Exh.D.2 on the record. After examining the said power of attorney I feel no hesitation to hold that the learned Courts below have committed no error of law in holding that appellant No,2 had no authority to make a gift of the suit land in favour of his son appellant No,1 on the basis of power of attorney Exh.D.2. In fact the matter stands fully clinched by the case of Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others (1994 SCM R 818). The parents of the said case were that one Said Nawab executed a general power of attorney in favour of his son-in-law. On the basis of the said power of attorney the said donee preceded to gift away the land of Said Nawab to his wife Mst. Gulzar Begum (daughter of the donor). The gift mutations were challenged by the other daughters of Said Nawab. The learned trial Court dismissed the suit. The learned First Appellate Court allowed the appeal and decreed the suit. The learned High Court of Peshawar set aside the decree of the learned Appellate Court and restored the decree of the learned trial Court. The Supreme Court of Pakistan allowed the appeal filed by the other daughters of Said Nawab. Mr. Justice Saiduzzaman Siddiqui (as his Lordship then was) observed as follows while setting aside the said gift mutation:-- "Gits are voluntary and gratuitous transfer from the donor to the donees. The essential of these transactions are, the capacity of donor, intention of donor to make gift, complete delivery of the gifted property to the donee and acceptance of gift by donee. In order to establish a valid gift of the property by the donor in favour of the donee where gift is made through a person authorised by the donor, the intention of the donor to make a gift must be established in clear terms in such a case the authority given by the donor in favour of another person to make a gift his property besides containing the power to make the gift must also clearly specify the property and the donee in the case. In the case before us gift made by Said Ghawas in favour of his wife Mst. Gulzar Begum on the basis of the power of attorney executed in his favour by Said Nawab cannot be upheld for two reasons: Firstly, the power of attorney executed in favour of respondent No,2 by the deceased. Said Nawab did not contain any specific provision authorising him to make a gift of his properties and secondly, even if we assume that such power was given, there is no indication in the said document that the donor intended to make gift of all his properties in favour of the wife of respondent No,2."
Applying the said test to the present case I find that although inter alia the appellant No,2 was given the authority to make a gift yet there is no specific authority in the document Exh.D.2 empowering appellant No,2 to gift away the property of Sher Khan in favour of the son of the attorney.
4. I need not discuss the other evidence in the suit which has been examined and discussed threadbare by the learned Courts below and I do not find any misreading or non-reading of the evidence by them while recording their impugned judgments and decrees.
5. In the light of the above discussion this R.S.A. Has no force and is accordingly dismissed with costs.