' Mst. Marraiyam Bibi, plaintiff-petitioner (herein) had instituted a suit for declaration claiming to be owner in possession of the property measuring 23 Kanals, 17 Marlas situated in Khata No,327/292 min, Mauza Chak Ghumnana, Tehsil and District Jhang, challenging the validity of mutation of sale No,5048 dated 4-7-1991 through attorney in favour of the defendants/respondents, alleging in the plaint that the parties were closely related with each other and about 8/9 months before the institution of, the suit defendant No,3 visited the house of the plaintiff at Khanewal and. Told her that her sister Mst. Wallan Bibi is planning to institute a suit for cancellation of gift-deed against her and therefore, the plaintiff had appointed Khan Muhammad, defendant No,1 as her general attorney, for pursuing the civil suit at Jhang on her behalf. She being an illiterate village woman having confidence on the said defendant had executed the general power of attorney in his favour, and he immediately thereafter mala fidely and deceitfully exchanged the land in dispute with defendants Nos.2 to 4 which was kept secret from her. This fact of exchange had come into the knowledge of the plaintiff. Through Amir son of Sardara, who wanted to purchase some land from her On such information, the plainliff had cancelled the power of attorney executed in favour of defendant No, 1 . She had challenged the legality of mutation of exchange on the ground that it was a result of fraud and collusion between defendant No,1 and defendants Nos.2 to 4, who are father and sons respectively. She had not given her consent for attestation of mutation of exchange. The' suit was contested by defendants who filed their written statements denying the averments of the plaint, raising some preliminary objections. From the factual controversy appearing on the pleadings of the parties, the trial Court led to frame the following issues:--
(1) Whether the plaintiff is owner in possession of suit-land and the mutation of exchange bearing No,5048 dated 4-7-1991 is void, illegal, ineffective against her rights and liable to be set aside? OPP
(2) Whether the plaintiff is estopped by her words and conduct to bring this suit? OPD
(3) Whether the plaintiff has got no cause of action ? OPD
(4) Whether the suit has not been properly valued for the purposes of court-fee and jurisdiction? If so, what is correct one? OPPs
(5) Whether the suit is false and vexatious? OPD
(6) Relief.
2. After recording and appreciating the evidence of the parties, pro and contra, the Court vide its judgment and decree dated 31-7-1993 dismissed the suit. Feeling a thereby, the plaintiff-petitioner had preferred an appeal, which came up for hearing before the learned District Judge, Jhang, who vide, impugned judgment and decree dated 9-9-1996 dismissed the same, affirming the findings of the trial Court.
3 Learned counsel for the petitioner argued that both the Courts below have decided Issues Nos.1, 2 and 3 jointly and passed the impugned judgments in violation of Order 20, rule 5, C.P.C. And Order 41, rule 31, C.P.C. Further submitted that there is no description of the property in dispute in the power of attorney allegedly executed by the petitioner. Further argued that defendant No,1 had exchanged the land vide mutation in dispute with his own sons and the land exchanged with the land of the petitioner is of inferior quality and far away from Jhang city whereas the suit property is just adjoining the city and highly valuable, therefore, the question of giving consent by her for exchange of property does not arise. Further added that the petitioner is an illiterate lady and defendant No,3 is a Patwari who is master mind of the whole game. Further submitted that in the cases of "Pardanasheen" ladies with regard to the transfer of their property the Courts are always conscious and in case the lady denied the execution of the power of attorney then, sufficient evidence would be required to rebut her evidence. In this respect, he relies on case of Malik Riaz Ahmad v. Mian Inayat Ullah 1992 SCM R 1488.
4. On .The other hand, learned counsel appearing on behalf of contesting respondent has vehemently opposed the arguments addressed by the learned counsel for the petitioner, contending that husband of the petitioner, namely, Warriyam was present at the time of execution and attestation of power of attorney. Further argued that the power of attorney was obtained from the petitioner by defendant No,1 fraudulently making to believe her to pursue the suit to be filed by her sister Mst. Wallan Bibi. Further 'argued that there is ample evidence on the record to controvert the evidence of the petitioner. Lastly contended that there is a concurrent - findings of fact against the petitioner which cannot be, interfered with by this Court in exercise of its revisional jurisdiction.
He relies on cases of Guldar Khan v. Isa Khan 1993 SCM R 2099; Nazir Ahmad v. Boota 1989 SCM R 450; Haji Muhammad Din v. Malik Muhammad Abdullah PLD 1994 SC 291 and Riaz v. Muhammad Saleem 1989; SCMR 1491.
5. I have heard the learned counsel for the parties at length and perused the. Record.
6. The question that boils down for determination in this case is that whether the plaintiff-petitioner had consented to exchange her land to the defendants and in this respect she empowered the alleged general attorney Muhammad Khan to exchange her land with the defendant. She had an independent advice and had knowledge for the same while executing the deed of general attorney. It is admitted position that the plaintiff-petitioner is an illiterate and simpleton villager lady and at the time of execution of deed she was not residing in District Jhang. She was resident of Khanewal District and the land in dispute is situated in Mauza Ghumnana, Tehsil and District Jhang.
The deed of general attorney (Exh.D.l) had been executed and registered on 10-6-1991. The marginal witnesses of the deed were Allah Ditta son of Muhammad Khan, the alleged attorney and Warriyam, husband of the petitioner. At the time of registration of the deed of general attorney, Allah Ditta appeared before Sub-Registrar and the petitioner was identified by one Muhammad Nawaz claiming to be a "Sarbrah Lumbardar" of Mauza Civil Station Jhang Saddar. From the contents of the document, the power of attorney. Exh.W.1, it depicts that general powers for maintaining, administering and looking after the land were given to the attorney. Although the power of sale, gift, exchange and mortgage has also been conferred on the attorney but these powers are general in routine and the same always appears in the documents of attorneyship. The specific power for exchange of land of the petitioner with the defendants-respondents had not been given and where the transaction by an illiterate lady is denied, it is for the beneficiary to prove that she had executed the same with her own free will under independent advice of her relations and sully knowing the nature of transaction. In this respect, reliance can be made to the case of Muhammad v. Rehmon 1998 SCM R 1354.
7. The general attorney has exchanged the land of the petitioner with his own sons which creates doubt that the attorney could have exercised the right and power of the owner to make a mental decision for purpose of making a transaction of exchange without the owner/petitioner herself having taken a mental conscious decision of making the transaction of exchange with the son of general attorney. The attorney had not specifically got approval from the petitioner for the exchange of land with his own sons and in such-like circumstances the alienation made by the attorney would not be sustainable in law. In this context, reliance can be made to the case of Mst.
Shumal Begum v. Mst. Gulzar Begum 1994 SCM R 818.
8. The power of attorney must be strictly construed and it is necessary to show that on a fair construction of the whole instrument the authority in question may be found within the four corners of the instrument either in express terms or by necessary implications. Reliance is placed to the case of Muhammad Akhtar v. Mst. Manna 2001 SCM R 1700.
9. Section 215 of the Contract Act emerges that "if an agent deals on his own account in the business of the agency, without first obtaining the consent of his principal and acquainting him with all material circumstances which have come to his own knowledge on the subject, the principal may repudiate the transaction, if the case shows either that any material fact A has been dishonestly concealed from him by the agent, or that the dealings of the agent have been disadvantageous to him. Section 216 of the Act further deals that if an agent without the knowledge of his principal, deals, in the business of the agency of his own account instead of on account of his principal, the principal is entitled to claim from the agent any benefit which may have resulted to him from the transaction".
' The person, who stands in a relation of trust or confidence to another shall not be permitted in pursuit of his private advantage to place himself in a situation which gives him a bias against the due discharge or that trust or confidence. The attorney is an agent of the principal and he cannot make any secret profit or benefit in exercise of his authority out of the transaction. The authority is always given to the agent to perform the duties and function as prescribed/mentioned in the document of authority and if he has to exercise the authority for his own benefit, he would seek permission from the principal. Reliance in this respect can be made to the case of Dost Muhammad v. M.B.R. 2001 M LD 2019.
10: The perusal of the evidence and scrutiny of the document indicates that no specific power had been given to the general attorney to make transaction of exchange with his own sons. This proposition has been dealt with by the Honourable Judges of Supreme Court of Pakistan in Fida Muhammad's case reported as PLD 1995 SC 341. The relevant portion of the observations made by them is as under:-- "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 mast 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 dr 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."
12. The illiterate lady would be deemed to be a Pardanasheen lady. Though she works without `Parda' in the fields and if she denies the execution of the document and challenges the transaction on the basis of fraud and misrepresentation, the onus shifts on the other party, the beneficiary of the document, who has to establish that the document at the time of its execution and registration was read over to her and she as a token of its correctness on the basis of independent advice and her intelligence accepted the same and thumb-marked. In the instant case, the scribe of the document (Exh.D.1) admitted that he did not know the executant/Mst.
Marriyam Bibi and he had written the document on the permission of her husband who had thumb-marked the same as marginal witness. Maqbool Ahmad D.W.4/Stamp Vendor, has also admitted that the plaintiff was not known to him personally nor at the time of purchase of stamp papers she was identified by any person. D.W.5 Muhammad Nawaz, `Sarbarah' Lumberdar, is a professional witness and he admitted that he used to identify the people in Tehsil Office and also admitted that Moharrir registry of the Office of Sub-Registrar got thumb-mark of the plaintiff and he did not depose that the document was read over to the plaintiff or not.
' The most important ,feature of the case is, hat one of the beneficiary Allah Ditta 'son of Muhammad Khan general attorney, is marginal witness of the attorney deed. Though the other marginal witness of the deed is Warriyam, husband of the petitioner, be that as it may, he was also an illiterate person and there is no evidence on the record on behalf of the defendants/ respondents that the transaction of exchange was in his knowledge nor there is any evidence that Warriyam was present before the Sub-Registrar when the document was registered.
13. The stand of the petitioner is that this document was got executed from her on the pretext that her sister Mst. Wallan is going to file a suit against her to challenge the mutation of Gift No,4348 attested on 28-9-1988 on behalf of Mattali, in her favour. In support of her assertion, the plaintiff has produced the copy of the plaint and order of the trial Court, dismissing the suit of Mst. Wallan vide order dated 7-12-1991 on the ground that the description of the property has not been given in the plaint. There is sufficient evidence on the record to infer that a fictitious suit on behalf of Mst. Wallan had been filed by the defendants-respondents by engaging a counsel and thereafter it was not pursued and dismissed on mere technicalities. Mst. Wallan plaintiff of the suit appeared as P.W. I and deposed that she did not file any suit against her sister, the present petitioner, and she stated that Allah Ditta defendant No,3 had approached her in District Rahimyar Khan and enticed her to file a suit against her sister for acquiring the land of her father.
14. The "exchange" has been defined in section 118 of Transfer of Property Act that when two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being morn only, the transaction is called "exchange". In the case in hand, the exchange is not proved as one person the petitioner, did not personally appear before the Revenue Officer for transfer of her land in exchange in favour of defendants-respondents. It is strange, that at the time of sanction of Mutation No,5048 Khan Muhammad being attorney of the petitioner, father of the transferee appeared on her behalf and Allah Ditta, the marginal witness, of the deed of attorney completed the transaction. There is no consent of the petitioner and- thus, the mutual consent of two persons, the owners of the property which is the ingredient of exchange, is missing in this case.
The whole proceeding was conducted by the respondents themselves. With the help of their father Khan Muhammad, the alleged attorney.
15. In deed of attorneyship/Exh.D.l, the description of the property of the petitioner for the transaction of exchange in favour of defendants-respondents is not mentioned nor any specific authority in favour of general attorney had been conferred on the general attorney as laid down in Fida Muhammad Khan's case (supra) and thus, the transaction/transfer of the property on behalf of the petitioner was not backed by any legal authority and the transaction of exchange was "Suppressioveri, exprossio false".
16. The delivery of possession of the property of respondents given in exchange in Muaza Khewa had also not been proved on record by sufficient and convincing evidence. The petitioner being a lady was not in physical possession of the property in dispute and the respondents have manoeuvred the entries in the Revenue Record in their favour.
17. The Courts below had not examined the evidence in depth keeping in view the above discussed aspects of the case and it was a case of sheer misreading and non-reading of evidence, resulting in serious miscarriage of justice and where there had been miscarriage of justice on account of the fact that the Court had not appreciated the evidence of parties with due care and caution, the concurrent findings had become amenable to the revisional jurisdiction of the High Court and the High Court is competent to set at naught the findings of the Courts below. In this context, a reference can be made to the case of Muhammad Akhtar (supra).
18. For the foregoing reasons, this revision petition is accepted. The judgments and decrees of the Courts below are set aside and the suit filed by the plaintiff/Mst. Marriyam against respondent- defendant is decreed with cost throughout.