Attorney cant sale property for personal benefit without special permission from principal.
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| Attorney cant sale property for personal benefit without special permission from principal. |
معاہدہ فروخت کو باطل قرار دیا جائے کیونکہ اس وقت کے دوران محمد ابراہیم نے خصوصی اجازت حاصل نہیں کی تھی اور اس نے معاہدے میں ذاتی مفادات شامل کیے تھے۔
ہاں، کیس میں محمد ابراہیم کی بیٹی نے اپنے والد، محمد ابراہیم، کے خلاف کیس دائر کیا۔ بیٹی نے الزام عائد کیا کہ اس کے والد نے اپنی پاور آف اٹارنی (وکیل کی طاقت) کے تحت پراپرٹی عبد الستار کو بیچ دی، بغیر اس کی اجازت کے۔ بیٹی نے یہ دعویٰ کیا کہ معاہدہ فروخت کو باطل قرار دیا جائے کیونکہ اس وقت کے دوران محمد ابراہیم نے خصوصی اجازت حاصل نہیں کی تھی اور اس نے معاہدے میں ذاتی مفادات شامل کیے تھے۔
عدالت نے بیٹی کی درخواست پر غور کیا اور فیصلہ دیا کہ محمد ابراہیم نے قانونی تقاضے پورے نہیں کیے، جس کے نتیجے میں معاہدہ غیر مؤثر قرار پایا۔
لاہور ہائی کورٹ کے فیصلے میں مختلف اہم نکات اور ریمارکس دیے گئے:
1. **خاص اجازت کی ضرورت*
*: عدالت نے ریمارکس دیے کہ وکیل کو خاص اجازت لینا ضروری ہے جب وہ پراپرٹی کو کسی رشتہ دار یا ایسی صورت میں فروخت کرے جس میں اٹارنی کو ذاتی فائدہ ہو۔ اس کیس میں، محمد ابراہیم نے معاہدہ فروخت کے لیے درخواست دینے سے پہلے ایسی اجازت نہیں لی، حالانکہ فروخت کنندہ ان کے بھتیجے، عبد الستار کو فروخت کی گئی تھی۔
2. **ذاتی فائدہ*
*: عدالت نے نوٹ کیا کہ محمد ابراہیم، وکیل، نے پراپرٹی کو ذاتی فوائد کے بدلے فروخت کیا، بشمول کھانا، رہائش، اور دیکھ بھال جو عبد الستار نے فراہم کی۔ وکیل یہ ثابت کرنے میں ناکام رہا کہ یہ معاہدہ اس کے ذاتی فائدے کے لیے نہیں تھا، جو کہ ایک اہم خامی تھی۔
3. **ثبوت اور ذمہ داریاں*
*: عدالت نے کہا کہ محمد ابراہیم نے یہ نہیں دکھایا کہ معاہدہ اصل میں اصولی کے مفاد میں تھا یا کہ فروخت سے حاصل شدہ رقم اصولی کے فائدے کے لیے استعمال کی گئی۔ عدالت نے کمیشن عدالتوں کی طرف اشارہ کیا کہ انہوں نے ان اہم مسائل پر غور نہیں کیا۔
4. **رشتہ اور قانونی ضروریات*
*: عدالت نے محمد ابراہیم اور عبد الستار کے رشتہ اور معاہدے کے تحت ضروری قانونی اجازتوں کا جائزہ لیا۔ عدالت نے کہا کہ اگرچہ عبد الستار خون کا رشتہ دار نہیں تھا، پھر بھی معاہدے کی نوعیت اور وکیل کو حاصل فوائد نے واضح اجازت کی ضرورت کو اجاگر کیا۔
5. **عدالتی نگرانی**
: عدالت نے پایا کہ کمیشن عدالتوں نے ان مواد مسائل پر توجہ نہیں دی، جس کی وجہ سے غلط نتائج اخذ کیے گئے۔ عدالت نے اس بات پر زور دیا کہ وکیل کے ذاتی مفادات اور اصولی کے حقوق کو نظرانداز کیا گیا، جو فیصلے میں اہم ہونا چاہیے تھا۔
مجموعی طور پر، عدالت کے ریمارکس نے اس بات پر زور دیا کہ وکیل کو قانونی ضروریات اور ذمہ داریوں کی پابندی کرنی چاہیے، خاص طور پر جب معاہدے میں ذاتی فوائد شامل ہوں۔
Must read Judgement
tereo. HCJDA 38.
Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
(JUDICIAL DEPARTMENT)
……………………..
Civil Revision No. 2194/2011.
Mst. Sughran Bibi.
Versus
Abdul Sattar, etc.
JUDGMENT
Date of hearing
19.12.2022
For petitioner
Mr. Saqib Hussain Gujjar, Advocate.
For respondents
Malik Arshad Awan, Advocate.
Mr. Mohsin Hanif, Advocate.
ASIM HAFEEZ, J. Instant and connected Civil Revision No.2195/2011 are
directed against consolidated judgment and decree dated 02.04.2011 of first appellate
court, whereby appeals preferred by petitioner was dismissed, and consolidated
decision of court of first instance, dated 19.01.2010, was affirmed, in terms whereof
trial court had dismissed suit for declaration instituted by the petitioner, on 27.07.2005,
and decreed suit for specific performance brought by respondent No.1, on 08.01.2005,
seeking enforcement of alleged agreement to sell dated 21.10.2004.
2.
Controversy needs to be contextualized, which necessitates recapitulation of
essential facts. Claimed land comprised of residential house and agricultural land (‘suit
property’), which was originally owned by the respondent No.2 – deceased
Muhammad Ibrahim, father to a daughter, i.e., Petitioner. It is not disputed that
respondent No.2, upon death of his wife, had gifted the suit property to his only
daughter, who after some years had executed a general power of attorney in favour of
her father, registered deed, dated 22.12.1984. Respondent No.1 claimed that father of
the petitioner, acting for and at the behest of his daughter, and pursuant to the power
Civil Revision. No.2194/2011
2
of attorney, contracted suit property through agreement to sell, dated 21.10.2004,
agreeing to sell suit property against consideration of Rs.500,000/-. Respondent No.1
alleged that possession of the house was delivered, and in this behalf deed of sale was
also executed, however, agricultural land was not transferred, which led to the action
for seeking performance of the agreement. Respondent No.1 was related to the
respondent No.2, being his nephew.
Petitioner sought declaration of invalidity against alleged arrangement, carried
out by her attorney – father – and pleaded ineffectiveness of transaction on the
premise of claim of revocation / cancellation of power of attorney, vide deed of
cancellation dated 11.01.2005. Suits were consolidated and 14 issues were framed.
Respondent No.1 appeared as PW-2, and produced one of the witnesses of the
agreement to sell – Shamshad Hussain [PW-3] – who also produced the attorney as
PW-4 – father of the petitioner, besides three other witnesses. Petitioner appeared as
her sole witness – DW-1. Learned trial court upon conclusion of trial, dismissed
petitioner’s claim and decreed claim of specific performance, in favour of respondent
No.1. Appeals preferred by the petitioner were dismissed. Hence this Civil Revision.
3.
Learned counsel for petitioner contends that respondent No.1 was related to
the attorney, Muhammad Ibrahim, being his nephew, in which case the attorney was
required to seek permission from the principal before entering in alleged transaction.
Further submits that petitioner was not beneficiary of the transaction; neither any
alleged advantage was drawn nor proved.
4.
Conversely, learned counsel for respondent No.1 submits that act of revocation
/ cancellation of power of attorney impliedly manifest acknowledgment of execution
of power of attorney, which was acted upon and agreement to sell was executed by
the attorney before revocation / cancellation took effect. Submits that attorney
appeared as witness, who acknowledged execution of the agreement and receipt of
consideration. Submits that respondent No.1 was not related to respondent No.2 as
Civil Revision. No.2194/2011
3
blood relative, hence, no special permission of the principal was required, which
permission was required in case attorney sells property of the principal to the next of
kin / blood relation. Submits that requirements in terms of sections 214 and 215 of the
Contract Act, 1872 are not attracted. Submits that there is a standalone judgment in
the case of “Muhammad Akbar Khan and others Vs. Atta Ullah Khan and 11 others”
(2009 YLR 1640), wherein attorney had exercised authority in favour of son and
nephew, which judgment is otherwise distinguishable on facts. Adds that execution of
agreement to sell was admitted. Learned counsel read the evidence of general
attorney to show distant relationship with respondent No.1. Further submits that
attesting witnesses were accordingly produced, which had endorsed the transaction in
question.
5.
Submissions heard. And file perused.
6.
Fundamentally, the controversy is whether attorney was required to seek
special permission of the petitioner before committing to agree to sell the property of
the principal by virtue of the agreement to sell. Since agreement to sell was allegedly
executed after the revocation / cancellation of registered power of attorney, when
attorney held the authority, therefore, this question is not of much significance. It is
evident from the evidence led that respondent No.1 was claimed to be the son of
respondent No.2s’ cousin. Judgments referred are examined and ratio laid is analyzed
in later part of the decision.
7.
The controversy, primarily involving construction of sections 214 and 215 of the
Contract Act, 1872 in view of the facts of the case, needs to be contextualized in the
context of case of “Fida Muhammad Vs. Pir Muhammad Khan (deceased) through legal
heirs and others” (PLD 1985 SC 341), a celebrated judgment, having proximity to the
controversy at hand, wherein obligations of the attorney while dealing with the
property of the principal, subject matter of agency, were elucidated. It was laid down
that agent, in cases of difficulty, was required to use all reasonable diligence in
Civil Revision. No.2194/2011
4
communicating with the principal for seeking instructions, and, where agent purchases
the property, subject of agency, for himself or his own benefit, same is obligated to
seek principal’s consent, after acquainting the principal with all material circumstances,
- latter obligation is relevant in the context of present controversy.
It is the case of the respondent No.1 that property was not purchased by the
attorney or his blood relation but same was sold to a distant relative, hence, no
permission was required.
8.
Submissions by counsel for the respondent No.1 are misconceived, which are
made without appreciating the evidence available / led by the respondent No.1. PW-1,
stepbrother of the petitioner, acknowledged that attorney resided with the
respondent No.1 in the house, subject matter of power of attorney and agreement to
sell, and respondent No.1 was fully responsible for entertaining the attorney, regarding
provisioning of food and residence, which services rendered was the reason for
transferring the house to the respondent No.1. PW-1 further acknowledged that
attorney and respondent No.1 collectively cultivates the land – since land of the
petitioner and respondent No.1 was in same Estate / Khata. Respondent No.1
appeared as witness – PW-2 – who acknowledged that he was responsible for the food,
residence and clothing of the attorney, who was earlier residing at Cha-Khata and now
residing with the respondent No.1. PW-2 acknowledged joint cultivation of the land,
who acknowledged that possession of agricultural land was with him even before the
agreement to sell. PW-2 acknowledged that attorney was not on talking terms with the
principal – his daughter. The attorney - Muhammad Ibrahim - appeared as PW-4, who
admitted gift of property to his daughter, who is an uneducated lady. PW-4 admitted
that after gift he, along with respondent No.1, was cultivating land and paid revenue to
the petitioner. PW-4 admitted his residence with respondent No.1 – during the last 40
years -, who is his nephew. And acknowledged that respondent No.1 was providing
food, residence, clothing and fulfilling other needs of the life. PW-4 admitted that since
Civil Revision. No.2194/2011
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respondent No.1 had served / attended him, and in lieu thereof, suit property was sold
to respondent No.1.
The most interesting feature of the case is that attorney had not alleged that
consideration received was paid to the principal or utilized for the advantage of the
principal.
9.
In view of the above, it is established that no special permission was asked –
though attorney admitted that respondent No.1 was his nephew [no explanation was
provided to show that respondent No.1 was not the descendant from same ancestor,
and respondent No.1 was not related by blood. Notwithstanding this inadequacy,
there is another fundamental lapse in the performance of obligations by the Attorney.
Attorney has to prove that transaction was not for his benefit, which material issue
was not proved and instead it is established that suit property was sold in return of the
services rendered by the respondent No.1 – which convincingly proved that attorney
sold suit property for his own benefit. Evidently the transaction carried out secured
him his comfort, residence, food and care extended by the respondent No.1, which
influenced the attorney and led to compromising his duties, responsibilities and
obligations towards the principal. The advantages / benefits drawn by the attorney, at
the expense of the principal, are established. These admitted facts constitute
provisioning of tangible benefits and calls for the necessity of prior permission from
the principal. No evidence was led to prove that money allegedly received were paid to
the principal. Attorney not even alleged this fact. Hence, requirements of sections 214
and 215 of the Contract Act, 1872 were not met. Both the courts have failed to advert
to this material question, which if considered would have impacted the inferences
drawn, found to be erroneous, irrational – where father would deprive his daughter of
her property, almost 20 years after the execution of the power of attorney. It is
apparent that petty family disputes, where the daughter has not invited father to the
wedding of her son, had estranged the father. It is established that conduct of
Civil Revision. No.2194/2011
6
transaction with respondent No.1 was an outcome of personal anger / displeasure,
which led to non-performance of obligations by the attorney. This does not absolve
attorney from performance of obligations as agent. Respondent No.1 was privy to all
this acrimony or bitterness and was aware that no permission was solicited from the
principal. Respondent No.1 cannot claim benefit of being a bona fide purchaser for
value, who is actually a collaborator.
10.
Following judgments are referred by counsel for the petitioner, rendered in the
cases of “Haq Nawaz and others Vs. Banaras and others” (2022 SCMR 1068),
“Muhammad Yasin and another Vs. Dost Muhammad through legal heirs and another”
(PLD 2002 Supreme Court 71).
Learned counsel for the respondent No.1 has relied
upon following decisions, reported as “Maqsood Ahmad and others Vs. Salman Ali”
(PLD 2003 Supreme Court 31), “Syed Atif Raza Shah Vs. Syed Fida Hussain Shah and
another” (2022 SCMR 1262), “Mst. Shahnaz Akhtar and another Vs. Syed Ehsan ur
Rehman and others” (2022 SCMR 1398), “Mst. Naila Kausar and another Vs. Sardar
Muhammad bakhsh and others” (2016 SCMR 1781). Judgments referred discussed
principles in the context of the facts of each case, and dicta laid therein are found
relevant in the context of the facts of those cases, which have no bearing on the case
at hand, in wake of distinguishable facts.
11.
Dictum laid in the case of FIDA MUHAMMAD (supra) was reiterated in the case
of “Muhammad Akbar Khan Vs. Atta Ullah Khan and 11 others” (2009 YLR 1640),
wherein agent had sold land to his son and nephew [close relatives], without
permission of the principal, manifests proximity to facts of the case at hand. Rule of
prior permission by the agent from the principal, in view of facts of the case, is
attracted, but not appreciated by the courts concurrently. Both decisions are not
sustainable in law.
12.
In view of the aforesaid, the Civil Revisions are allowed, consolidated judgment
and decree dated 02.04.2011 of the first appellate court and judgment and decree of
Civil Revision No.1156-D of 2018
12
16.
The facts being established that Respondent
No.1 is widow of the Deceased and Respondents No.2&3
are children from their lawful wedlock, it would
superfluous to further rehearse the elaborate scrutiny to
each and every incident in the case which has been
subjected in the careful Judgments of the two learned
Courts. No case of material irregularity, illegality or
jurisdictional defect, requiring exercise of revisional
jurisdiction, is made out.
17.
This civil revision being devoid of merits is,
accordingly dismissed, with no order as to costs.
(Sultan Tanvir Ahmad)
Judge
APPROVED FOR REPORTING
Judge
Announced in open Court on-------------------
Judge