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

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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").
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