'On 10-2-1982 the petitioners filed a suit against the respondents. In the plaint it was stated that Rabia the mother of the petitioners and respondents Nos.3 and 4 was the owner of suit-land measuring 5 Kanals, 3 Marlas that the said lady was an illiterate and Pardanashin; that Muhammad Siddique, the deceased defendant No,1 prOcured a power of attorney dated 14-6-1966 and got it registered and on the basis of said power of attorney proceeded to gift away the said land in favour of his son i,e, the present respondent No,1, vide Mutation No,362 attested on 29-7- 1980. The power of attorney as well as the said mutation was stated to be illegal and void. In their written statement the respondents pleaded valid execution of power of attorney by the mother (Mst. Rabia Bibi deceased plaintiff) of the petitioners and supported the validity of the said gift mutation. Following issues were framed:--
(1) Whether the plaintiff has no cause of action and the suit is not maintainable in its present form?
OPD
(2) Whether the plaintiff is entitled to the decree as prayed for? OPP
(3) Whether the document, dated 14-4-1966 is a forged document, if 'so, its effect? OPP
(4) Whether the Hiba made by the defendant No,2 in favour of defendant No,1 is valid? OPP
(5) Relief.
' Evidence of the parties was recorded. The learned trial Court proceeded to dismiss the suit vide judgment and decree, dated 11-11-1987. A first appeal filed by the petitioners was dismissed by the learned District Judge, Toba Tek Singh on 15-9-1988.
2. No one has turned up for the petitioners today while the respondents had been proceeded against ex parte on 26-6-2001. Having gone through the records of this case and also having noted the contention of the learned counsel for the petitioners in admission note, dated 5-7-1989, I am not inclined to dismiss this Civil Revision for non-prosecution.
3. Both the learned Courts below have concurrently held that Mst. Rabia Bibi, the mother of the petitioners did execute the power of attorney in favour of Muhammad Siddique, father of respondent No,
1. Copy of this power of attorney is available on record as Exh.P.2. I have examined the said document and I do find that Rabia Bibi did authorize the said Muhammad Siddique to alienate her property by sale, mortgage, exchange or gift. Muhammad Siddique has not appeared in the witness-box but Muhammad Nisar, respondent No,1, the alleged donee has so appeared as D.W.5. He has stated that Rabia Bibi was Phoophi of his father Muhammad Siddique and had appointed him as their attorney and that his father gifted the land to him in the year 1980 and that he accepted the gift and took possession. He has stated that his father had consulted his aunts while gifting the land. Now it is a matter of record that Rabia Bibi was blessed with her own children including sons. Not a word is there either in the pleadings or in the said statement of D.W.5 as to why Rabia Bibi would have gifted her land to respondent No, I. He has not pleaded any love or affection and neither has he pleaded having rendered any service to the lady. There is no evidence that her relationship with her children was strained. In fact Nisar, D.W.5 has stated that his father gifted the land to him. Now he did state that the land was gifted after consulting Rabia Bibi but I find that Rabia Bibi's son Muhammad Siddiq appeared as P.W.1 and a grandson Abdul Khaliq appeared as P.W.2 and they stated that the gift was made unauthorisedly. No suggestion was given to any of the said witnesses P.Ws. 1 and 2 that the gift was made in consultation with Mst.
Rabia Bibi.
4. To my mind the impugned judgments and decrees proceed in direct violation of the law laid down by the Supreme Court of Pakistan in the case of Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCM R 818. I may reproduce here the following excerpts from the opinion of Mr. Justice Saiduzzaman Siddiqui (as his Lordship then was) appearing at page 824 of the report:-- "In order to establish valid gift of the property by the donor in favour of the donee where gift is made through a person authorized by the donor, the intention of donor to make the 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 of 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 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 authorizing him to make a gift of his property and secondly, even if we assume that such power was given, there is no indication in the sale document that the donor intended to make gift of all his properties in favour of the wife of respondent No,2 (the donor)."
5. In view of the above discussion I find that both the learned Courts below have acted without lawful authority while passing the impugned judgments and decrees. I may note here that the only findings of facts recorded by the learned Courts below that Rabia Bibi deceased did appoint Muhammad Siddiq as an attorney and that Siddiq gifted the land to his son Nisar, respondent No, I, are not enough to sustain the dismissal of the suit by the learned trial Court as affirmed by the learned Additional District Judge. This civil revision is accordingly allowed, The judgments and decrees of both the learned Courts below are set aside and the suit of the petitioners is decreed leaving the parties to bear their own costs.