' On 3-10-1984 the petitioner filed a suit against the respondents. According to the plaint she was married to respondent No,1 on 28-2-1980. The suit plot was allotted to her. On 25-3-1981 she executed a power of attorney in favour of her husband concerning the said plot. On 4-7-1981 she was turned out of his house by her husband. On 26-7-1982 the divorce pronounced by the respondent No,1 became effective. On 13-9-1981 her husband proceeded to execute an agreement in favour of his brother (respondent No,2) and also executed a receipt acknowledging payment of consideration of Rs,10,000. The petitioner complained that she had not authorised her husband to sell the plot or to receive its consideration and that there was question of her being consulted or her giving a consent or receiving any consideration when she had been turned out of his house by respondent No,1 on 4-7-1981. With these averments she prayed for a decree for cancellation of the said document. In this written statement respondent No,1 asserted that a valid power of attorney was given in his favour by the petitioner giving him authority to sell etc. He also stated that the plot was sold with the consent of the petitioner and that the consideration received from respondent No,2 was paid by respondent No,1 to the petitioner. I may note here that there is not a word in this written statement about the allegations of the petitioner regarding her unceremonial ouster from his house by respondent No,1, and the divorce. Respondents Nos. 2 and 3 filed a separate written statement and they simply said that they had examined the power of attorney before entering into the transaction with respondent No,
1. They also expressed ignorance regarding the other allegations made by the petitioner in her plaint. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit of the petitioner vide judgment and decree, dated 12-4-1988. However, respondents Nos.2 and 3 filed a first appeal which was heard by a learned Additional District Judge, Sargodha who proceeded to allow the same on 7-2- 1989 and resultantly the suit of the petitioner was dismissed with costs.
2. Mr. Inayatullah Chaudhary, learned counsel for the petitioner argues that the impugned judgment and decree of the learned Additional District Judge proceeds in direct contravention of the law declared consistently by the Supreme Court of Pakistan, inter alia, in the case of Fida Muhammad v. Pir Muhammad Khan (deceased) through legal heirs and others (PLD 1985 SC 341) which is clearly applicable to the facts and circumstances of the case which stand established, rather admitted on the facts of the record. Learned counsel for the respondents, on the other hand, has tried to support the impugned judgment and decree of the learned Additional District Judge.
3. I have gone through the record, copies whereof are appended with this civil revision. I find that the facts narrated by the petitioner lady in her plaint stand admitted or proved on record. As to her contention that she had been living apart from respondent No,1 since 4-7-1981, the same stands established by notices (Exhs.D.5 and D.8). These notices were produced by respondent No,1 himself in the course of his statement as D.W.4 and clearly narrate that the petitioner had left his house on 4-7-1981 and had not returned ever since. I may state here that in the notice (Exh.D.8) it has been alleged obviously under instructions of respondent No,1, that the petitioner while leaving the house had taken along Rs,10,000 and ten tolas golden ornaments. The notice threatened that she has committed an offence and that respondent No,1 will be getting a case registered against her under sections 379, 380 and 406, P.P.C. And it has been demanded that she should return the said cash and ornaments.
4. It is also admitted position that ultimately there was a divorce. It is in this factual background that the respective pleas of the parties are to be considered. To my mind notwithstanding the admitted execution of the power of attorney (copy Exh.P.2) and the contents thereof which do spell out a power to alienate although it is but obvious that the said authority is meaningless because admittedly the plot is inalienable as per terms of its allotment. There is no evidence on record, believable by the prudent person, that respondent No,1 acted in a manner required of him as an attorney while proceeding to alienate the plot to his brother. I am in complete agreement with the contention of the learned counsel for the petitioner that the impugned judgment proceeds in direct contravention of the law laid down consistently by the Supreme Court of Pakistan on the subject.
The said case of Fida Muhammad relied upon by the learned counsel was later followed and the rule laid therein were upheld in the case of Mst. Shumal Begum v Mst. Gulzar Begum and 3 others (1994 SCM R 818) and the case of Haji Faqir Muhammad v. Pir Muhammad and another (1997 SCM R 1811). Here I deem it proper to reproduce where the reasoning of his Lordship of the Peshawar High Court hat was affirmed by the apex Court in the said latter case of Haji Faqir Muhammad:-- "The holder of a general power of attorney is not equipped with power to do anything under the sun with the property which is given in his agency by the principal because an attorney devices the authority with regard to such property under the provisions of law and, therefore, he is required always to act within the four corners of law. It is the salutary principle of law that an agent shall always act for the benefit of his principal and his entire conduct and working shall be governed by this principle. Therefore, it is better to saddle a holder of a general power of attorney with regard to immovable property notwithstanding an authority to alienate the property of his principal, with certain responsibilities to his principal. The first and foremost duty of the agent is that he will manage the property to the benefit of the principal and not to his own benefit. Secondly, if the agent deal on his own account with the property under agency, that is, if he purchases it himself for his own benefit, he in his own interest should obtain the consent of the principal in this behalf after acquainting him with all material circumstances on the subject, failing which the principal is at liberty to repudiate the transaction. The case of the petitioner, when examined on the touchstone of the aforesaid legal principle, was found to be violative of the law enunciated in the foregoing lines."
Now respondent No,1 has pleaded that he had sold the plot with the consent of the petitioner lady to his brother. Not only this but he has pleaded that he gave Rs,10,000 received by him from his brother to the petitioner. I wonder how this was possible when according to his own showing the petitioner was not agreeing to come back to his house and his learned counsel was accusing her of theft and misappropriation and threatening her with registration of criminal cases at the relevant point of time. It is thus evident that respondent No,1 failed to discharge his obligations as an attorney, even if it be deemed that he entered into a bona fide first transaction with his own brother regarding his wife's property, as ruled by the Supreme Court of Pakistan in the cases referred to above. The petitioner has, therefore, every right to repudiate the said acts of her husband and attorney. Thus, the impugned judgment and decree of the learned Additional District Judge relevantly fall within the mischief of section 115, C.P.C. And cannot be sustained. This civil revision is accordingly allowed and the impugned judgment and decree of learned Additional District Judge, Sargodha is set aside while that passed by the leaned trial Court on 12-4-1988 decreeing the suit of the petitioner is restored for reasons stated by me above. The costs throughout shall be borner by the respondent No, 1 .