P L D 2003 Supreme Court 31 Present: Iftikhar Muhammad Chaudhry

P L D 2003 Supreme Court 31 Present: Iftikhar Muhammad Chaudhry, Sardar Muhammad Raza Khan and Falak Sher, JJ MAQSOOD AHMAD and others---Appellants Versus SALMAN ALI --- Respondent Civil Appeals Nos.751 and 752 of 2000, decided on 30th October, 2002. (On appeal from the judgment/order dated 3-S-2000 passed by Lahore High Court, Lahore in R.F.A. Nos. 210 and 211 of 1999). (a) Qanun-e-Shahadat (10 of 1984)------Arts. 17 & 79---Proof of execution of document--Competence and number of witnesses----Registered power of attorney-Document had bestowed authority on the attorney on behalf of the principal to deal with the affairs of his land including selling the same meaning thereby that as an Agent he would also be responsible to watch the financial interest of the Principal while exercising powers on his behalf---Attorney owed future obligations to his Principal in respect of his immovable property---Whenever a document is executed conferring authority on the Agent to deal with financial matters of the property on behalf of the Principal and also making him responsible for future obligations either to the Principal in respect of the affairs of his property or with a third person with whom he was dealing on behalf of the Principal, the document squarely fell within the categories of the instruments which were required to be attested by two then or one man or two women in terms of Art. 17(2)(a) of the Qanun-e-Shahadat, 1984 and before a Court of law the contents of document were required to be proved as per methodology of Art.79 of Qanun-e-Shahadat 1984. (b) Registration Art (XVI of 1908)------S. 33---Power of Attorney---Recognition---Power of attorney executed through Local Commissioner---Conditions enumerated in S. 33 Registration Act, 1908. (c) Qanun-e-Shahadat (10 of 1984)--

----Arts. 79 & 117---Power of attorney---Proof of execution document--- Onus---Onus to prove that the document was a valid one was upon the Agent as he had asserted that on the basis of the power of attorney property Owned by the Principal had been legally transferred by him in the name of his brother---Failure of attorney to discharge his burden as per Art. 117 of the Qanun-e-Shahadat, 1984---High Court rightly interfered in the judgment of Lower Court. (d) Constitution of Pakistan (1973)------Art. 185(3)---Precedent---Order refusing grant of leave to appeal has persuasive value but observations made therein have no binding force on the larger Bench of the Supreme Court. (e) Qanun-e-Shahadat (10 of 1984)------Art. 17(2)(a)---Power of attorney---Competence and number of witnesses---Registered power of attorney having been executed to deal with financial and future obligations of the Principal, attestation of instrument by two witnesses under Art.17(2)(a), Qanun-e-Shahdat, 1984 was mandatory. Saifullah Khan and another v. Javed Iqbal and another 1997 SCMR 1210 ref. (f) Contract Art (IX of 1872)------Ss. 211 & 215---Power of attorney---Agent's duty in conducting Principal's business---Consent of Principal, when necessary---Agent, in the ;resent case, had been authorised to deal with the affairs of the property including the financial powers and if he wanted to transfer the land in respect whereof Principal had allegedly appointed him as attorney to deal with his property, it was incumbent upon him to have sought prior approval of the Principal before transferring the land in the name of his brother being the close relative of the attorney, in order to make the transaction a valid one in terms of S.211 read with S.215, Contract Act, 1872. (g) Contract Act (IX of 1872)------S.2(h)---Power of attorney'--Oral agreement by Agent---Person entering into oral agreement with the Agent had to prove the oral agreement according to the definition of agreement under S.2(h), Contract Act, 1872. (h) Power of attorney------Where it is alleged that attorney has committed a fraud in transferring the property of the Principal in the name of his close relative, the Court must construe the power of attorney strictly and examine the matter thoroughly following the principle of administration of justice to ensure that the person Who has executed power of attorney in favour of his Agent is not deprived of his rights including the financial matters arising out of the transactions which re carried out by the attorney on his behalf and also to examine whether the attorney holder has fulfilled his future obligations towards his Principal or not. Fida Muhammad v. Pir Muhammad Khan through Legal Heirs and others PLD 1985 SC 341 and Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and others PLD 2002 SC 71 ref. Mr. Alamgir, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Appellants.(in both Cases). Taqi Ahmad Khan, Advocate Supreme Court and Ch. Medhi Khan Mehtab, Advocate-on-Record (absent) (in both Appeals). Dates of hearing: 29th and 30th October, 2002. JUDGMENT IFTIKHAR MUHAMMAD CHAUDHRY, J.---Instant Appeals have been filed under Article 185(2)(d)(e) of the Constitution of Islamic Republic of Pakistan against judgment dated 3rd May, 2000 and decree signed on 8th June, 2000 passed by Lahore High Court in pursuance whereof R.F.As. Nos.210 and 211 of 1999 filed by respondent against consolidated judgment/decree dated 31st March, 1999 passed by Senior Civil Judge, Lahore has been set aside, resultantly the suit filed by respondent for declaration with consequential relief for cancellation of General Power of Attorney and sale-deed has been decreed and the suit filed by appellants for declaration and permanent injunction has been dismissed. Concise facts giving rise to instant proceedings are that property-measuring 71 Kanals, 18 Marlas belonging to respondent Salman Ali which he obtained from his mother Mst. Umat-ul-Sadiq through a registered gift-deed dated 26-3-1986 followed by Mutation No.21893 sanctioned on 27th May, 1986 was transferred by Maqsood Ahmad, appellant on the name of his real brother appellant Muhammad Ayub claiming himself to be the attorney of respondent Salman Ali vide Power of Attorney dated 17th April, 1996 registered on 13th May, 1996 through a registered sale-deed dated 30th May, 1996 against a consideration of Rs.5,90,000. Therefore, for annulment of the effect of power of attorney as well as sale-deed respondent instituted a suit for declaration and cancellation of sale-deed in the Court of Senior Civil Judge, Lahore on 12th June; 1996. 3. Likewise Maqsood Ahmad and Muhammad Ayub appellants also filed a suit for declaration and permanent injunction against respondent Salman Ali and the S.H.O. on 3rd September, 1996 in the Court of Senior Civil Judge, Lahore. Learned trial Court vide order dated 5th March, 1998 consolidated both the suits. 4. The claim of respondent Salman Ali in the plaint was that the execution of power of attorney dated 17th April, 1996 registered on 13th May, 1996 as well as the sale-deed dated 30th May, 1996 in respect of the property owned by him measuring 71 Kanals, 18 Marlas is the result of fraud and misrepresentation because he had not executed the power of attorney nor has authorized Maqsood Ahmad to sell his property, to his brother Muhammad Ayub. 5. The claim of the appellants, however, was that the suit-land was purchased by them against consideration of Rs.36,06,000 payment of which was made in between the period commencing from 1992 to 1995, therefore, Muhammad Ayub in his own rights is the owner of the land measuring 71 Kanals, 18 Marlas owned by Salman Ali. Similarly Salman Ali defended the suit filed by appellants inter alia on the averments that appellant Muhammad Ayub being his Agency sold the property measuring 27 Kanals situated in Begum Park owned by him as well as his mother Mst. Ummat-ul-Sadiq and wife Mst. Hasina against 61 registered sale-deeds and the amount of Rs.36,06,000 was paid to him and others in respect of that property after deducting his commission. As far as transaction in respect of alleged sale of land measuring 71 Kanals, 18 Marlas including. execution of power of attorney was vehemently repudiated. 6. Learned trial Court struck issues arising out of pleadings of the parties. Issues Nos., 6 and 11, however, being relevant for disposal of instant appeals are reproduced herein-below:-- "6: Whether the plaintiff is owner in possession of the property in dispute and is entitled for declaration with consequential relief and cancellation of Sale-Deed No. 3693, Bhai No. 1, Jild No. 1073, dated 30-5-1996 and Power of Attorney No.2762, dated 13-5-1996 on the ground mentioned in the plaint? OPP 11. Whether the defendants Maqsood Ahmad and Muhammad Ayub are entitled to get decree for declaration in respect of land measuring 71 Kanals, 18 Marlas in respect of disputed land on the ground that they have purchased the same after the payment of Rs.36,06,000 on the basis of the sale-deed? OPD." Parties led pro and contra evidence in support of their respective pleas and on completion of proceedings learned trial Court vide consolidated judgment dated 31-3-1999 dismissed the suit filed by Salman Ali whereas suit filed by appellants was decreed. Accordingly respondent preferred two separate appeals before Lahore High Court, Lahore which have been allowed by means of impugned judgment. As such instant direct, appeals have been filed. 7. Learned counsel contended that appellants have been non-suited by the High Court inter alia on the ground that power of attorney executed on 17th April, 1996 and registered on 13-5-1996 is invalid as it has not been attested by two witnesses as per the provisions of Article 17 of Qanun-e-Shahadat Order, 1984 (hereinafter referred to as the "Order"). His argument was that the power of attorney was not required to be attested by two witnesses. Reliance in support of his contention was placed on 1997 SCMR 1210. Alternatively he argued that to prove the contents of power of attorney he has produced scribe of power of attorney D.W. Shahid Azeem as well as one of the witness namely Muhammad Sadiq, therefore, requirement of Articles 17 and 79 of the Order stands fully complied with. As such on this score the impugned judgment requires no interference by this Court. 8. The learned counsel for respondent contended that Salman Ali had not executed power of attorney in favour of appellant Maqsood Ahmad but in order to deprive him from valuable property measuring 71 Kanals, 18 Marlas his signatures have been forged upon it. To substantiate his plea he stated that the power of attorney was required to be attested by two witnesses in terms of Article 17 of the Order because in pursuance whereof respondent allegedly had delegated authority to appellant Maqsood Ahmad to deal with the affairs of land owned by him including sale etc. therefore, the appellant was deriving financial powers on behalf of respondent Salman Ali and also future obligations to act on his behalf. As such without its attestation by two witnesses it has been rightly found invalid by learned High Court for want of non-compliance of the provisions of Articles 17 and 79 of the Order. It was further stated by him that the power of attorney was executed by Local Commissioner Faiz Ahmad Bhatti, Advocate but its recital would indicate that no one identified Salman Ali at the time of its execution except Muhammad Ayub who himself was the beneficiary. There was no occasion to execute the document through Local Commissioner in absence of conditions laid down under section 33 of the Registration Act. Besides it, said power of attorney has been tampered, therefore, except appellant Maqsood Ahmad or for that matter his brother Muhammad Ayub cannot be held responsible for it because they wanted to accomplish their illegal acts. 9. As per the findings recorded by learned High Court with regard to validity or otherwise of power of attorney dated 17-4-1996 we have noticed that after having dealt with this document in relation to the provisions of Articles 17 and 79 of the Order it has been concluded that in absence of two attested witnesses a power of attorney cannot be, termed to be a valid document. It is an admitted fact that out of two attested witnesses only one Muhammad Sadiq has been produced. As far as D.W. Shahid Azeem alleged author of the document is concerned he did not sign it either as a scribe or attesting witness. Therefore, evidence furnished by him is of no help to the appellants. So far as D.W. Muhammad Sadiq is concerned he has testified his signatures being attesting witness on the power of attorney Exh.D/2, as such a question for examination crops up as to whether merely on the statement of D.W. Muhammad Sadiq a power of attorney can be declared to be a valid instrument. Learned counsel for appellants emphasized with great vehemence that the power of attorney was not required to be attested by two witnesses because the Principal has delegated his authority to the Agent without bestowing powers of financial matters and any future obligations upon him, as such attestation by two witnesses was not mandatory as per law. We are not inclined to agree with him for the reasons that the registered power of attorney has bestowed authority upon Maqsood Ahmad Attorney Holder on behalf of Salman Ali (Principal) to deal with the affairs of his land including selling it out etc. meaning thereby that as an agent he would be responsible to watch the financial interest of respondent Salman Ali as well while exercising powers on his behalf, he owes future obligation to his Principal in respect of his immovable property. Therefore, whenever a document is executed with an authority to the Agent to deal with financial matters of the property on behalf of the Principal and also making him responsible for future obligations either to the Principal in respect of the affairs of his property or with a third person with whom he is dealing on behalf of the former, the document squarely falls within the categories of the instruments which are required to be attested by two men or one man and two women in terms of Article 17(2)(a) of the Order and before a Court of law contents of documents are required to be proved as per the methodology of Article 79 of the Order. Learned High Court dealt with this aspect of the case quite exhaustively with reference to precedented law as well as definition of expression "financial" as per its dictionary meaning and in view of the background of this case noted above we fully subscribe to the conclusion drawn by learned High Court. 10. In this background it may not be out of context to note here that during trial through evidence of appellant (D.W. Maqsood Ahmad) it has come on record that stamp papers were purchased by Muhammad Ayub so called buyer for the purpose of execution of power of attorney without offering-explanation that as to why respondent Salman Ali himself did not purchase stamp papers. As such this reason creates a serious suspicion about the validity of the power of attorney. Inasmuch as the power of attorney was allegedly got executed by appellant Maqsood Ahmad in favour of his brother Muhammad Ayub through Local Commissioner Faiz Ahmad Bhatti, Advocate but surprisingly he was not produced before the Court, as such identification of respondent Salman Ali before Local Commissioner remained doubtful. In addition to it, nothing was brought on record by appellants to show that the power of attorney was got executed through Local Commissioner because conditions enumerated in section 33 of the Registration Act were available for doing so. 11. As far as tampering with the power of attorney Exh.D/2 is concerned it is apparent on record particularly with reference of the signatures of D.W. Muhammad Sadiq. The examination of the document with naked eye reveals that this witness had put signature subsequently with different ink. Essentially the onus to prove that document was a valid one was upon, appellant Maqsood Ahmad because it was his assertion that on the basis of power of attorney property owned by respondent measuring 71 Kanals, 18 Marlas has been legally transferred by him on the name of his brother Muhammad Ayub but he failed to discharge his burden as per Article 117 of the Order. 12. The Judgment in case of Saifullah Khan and another v. Javed Iqbal and another 1997 SCMR 1210 relied upon by the learned counsel for appellant delivered by a Division Bench of this Court needs no discussion because in this case leave to appeal was declined, therefore, no question of law was decided nor learned Bench of this Court enunciated a principle of law as per provisions of Article 189 of the Constitution of Islamic Republic of Pakistan. Undoubtedly an order-refusing grant of leave always has a persuasive value but observations made therein have no binding force on the Larger Bench of this Court. As we have held hereinabove that in the instant case registered power of attorney was executed to deal with financial and future obligations of the respondent, therefore, attestation of the instrument by two witnesses under Article 17(2)(a) of the order was mandatory, as such the observations made in the cited judgment are not followed. 13. With reference to the context of power of attorney we have pointed out to the learned counsel for appellants that as appellant Maqsood Ahmad had been authorized to deal with the affairs of the property including the financial powers, therefore, if he wanted to transfer the land in respect whereof allegedly respondent appointed him as attorney to deal with his property, it was incumbent upon him to have sought prior approval of the Principal before transferring the land on the name of his brother Muhammad Ayub being the close relative of the attorney in order to make it a valid transaction in terms of section 211 read with section 215 of the Contract Act. His contention was that the respondent had already received Rs.36,06,000 in between the period commencing from 1992 to 1995 with a commitment to transfer 71 Kanals, 18 Marlas in favour of appellants, therefore, after making payment of this much amount which admittedly was received by respondent in parts from time to time including the payment of Rs.6,00,000 as per Exh.D/1, therefore, the Attorney Maqsood Ahmad had an implied consent of the respondent for transfer of the property on the name of his brother Muhammad Ayub. 14. On the other hand the case of the other side was that no such consent was ever given because as far as the amount of Rs.36,06,000 is concerned that was not paid by M/s. Maqsood Ahmad and Muhammad Ayub or for that matter their father Maqbool Hussain being the sale consideration of the disputed property. According to them a recital of Exh.D/1 would indicate that the property measuring 27 Kanals owned by Salman Ali, his mother Mst. Ummat-ul-Sadiq and his wife Mst. Hasina had been sold by appellant Muhammad Ayub as their agent to different buyers from time to time by means of 61 registered sale-deeds, copies of which have been placed on record, therefore, this amount cannot be treated to be the sale consideration of the land in dispute i.e. measuring 71 Kanals, 18 Marlas exclusively owned by respondent. 15. This controversy can be settled making reference to the evidence produced by the parties. In this behalf question for ascertainment would be whether in respect of sale of the property measuring 71 Kanals, 18 Marlas there was an agreement written or oral between the appellants and Salman Ali. With the assistance of the learned counsel for parties we have gone through the evidence available on record particularly statement of P.W. Salman Ali and D.W. Maqsood Ahmad. A close scrutiny of the evidence persuades us to hold that firstly there was no contract/agreement between both the parties in respect of the sale of land owned by Salman Ali measuring 71 Kanals, 18 Marlas and if it is presumed that appellant Muhammad Ayub entered into an oral contract/agreement with respondent then burden was upon him to prove the oral agreement according to the definition of agreement under section 2(h) of the Contract Act. The scrutiny of the evidence would indicate that there was neither any offer nor acceptance by Salman Ali to sell his property measuring 71 Kanals, 18 Marlas to appellant Muhammad Ayub or any other legal heirs of Maqbool Hussain, predecessor- in-interest of appellants. Inasmuch as there is no iota of evidence available on record to draw an inference that mutuality exist between the parties in respect of this transaction. The argument so raised by the learned counsel far the appellant with regard to payment of Rs.36,06,000 to be the price of the land measuring 71 Kanals, 18 Marlas during the period commencing from 1992 to 1995 to the respondent is itself destructive because as per sale-deed dated 21-5-1996 the property allegedly has been purchased by Muhammad Ayub brother of Maqsood Ahmad attorney holder against sale consideration of Rs.5,90,000, therefore, the stand taken in this behalf by the appellants seems to be incorrect. Thus in such view of the matter we are inclined to hold that Rs.36,06,000 was not paid by appellants Muhammad Ayub or others towards the sale price of the land measuring 71 Kanals, 18 Marlas. Contrary to it the amount was paid by appellant Muhammad Ayub to Salman Ali and others after receiving it from different buyers in whose favour registered sale-deeds have been executed. 16. Learned counsel for appellants contended that as per Exh.D/1/A the measurement of the land was shown to be 99 Kanals, 7 Marlas in respect of which an amount of Rs.34,31,250 has been paid, therefore, it stood proved that this amount was received by respondent towards the sale consideration of the land owned by him. We are not inclined to agree with this contention because perusal of Exh.D/1/A indicates that figure of 99 Kanals, 7 Marlas has been added subsequently in order to leave an impression that by means of Exh.D/1 the sale price was not paid in respect of 71 Kanals but of 99 Kanals, 7 Marlas. Surprisingly whosoever has tampered with this document has forgotten that the land in dispute owned by Salman Ali is 71 Kanals, 18 Marlas and not 99 Kanals, 7 Marlas. 17. Now adverting towards an important aspect of the case namely that when attorney holder intends to transfer the property of his principal in favour of one of his close relative he is required to take the consent of the h latter. In this behalf reference may be made to the judgments reported in the cases of Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341 and Muhammad Yasin and another v. Dost Muhammad through Legal Heirs and others PLD 2002 SC 71. In view of the law laid down in the cited judgments there is no need to discuss this aspect of the case in detail except observing that in such-like cases where it is alleged that attorney holder has committed a fraud in transferring the property of the principal on the name of his close relative the Court must construe the power of attorney strictly and examine the matter thoroughly following the principle of administration of justice to ensure that the person who has executed power of attorney in favour of his agent is not deprived from his rights including the financial matters arising out of the transactions which are carried out by the attorney on his behalf and also to examine whether the attorney holder has fulfilled his future obligations towards his principal or not. Thus in view of above observations we are of the opinion that in the instant case Maqsood Ahmad fraudulently got executed the 1rbwer of attorney dated 17-4-1996 registered on 13-5-1996 in his favour in order to deprive the respondent from his landed property and to achieve the object he transferred the property in favour of his brother Muhammad Ayub and the learned High Court for such reasons has rightly interfered in the judgment pronounced by Senior Civil Judge, Lahore. As a result of above discussion the appeals are dismissed with costs throughout. 18. The appeals were dismissed vide short order of the even date and above are the reasons for the same. M.B.A./M-689/S Appeals dismissed.