Cancellation of power of attorney process.
:خاندان کے اندرونی تنازعات کے حل کے لئے کئے جانے والے معاہدے اور ان کی قانونی حیثیت بہت اہم ہیں۔
مدعی نے مارچ 2003 میں پاور آف اٹارنی کو منسوخ کیا تھا، تو اس نے سب رجسٹرار کو اس کی منسوخی کی درخواست کیوں نہیں دی؟
1. **مدعی کا دعویٰ**:
29 اپریل، 2003 کو، جب پلاںٹف اور عبدالرشید (مدعا علیہ نمبر 3) دونوں سب رجسٹرار کے دفتر میں موجود تھے، پلاںٹف نے اپنے بھائی بشیر احمد (مدعا علیہ نمبر 2) کی طرف سے دیے گئے پاور آف اٹارنی کے تحت ایک سیل ڈیڈ (Ex.D.5) پیش کی جبکہ عبدالرشید نے ایک اور سیل ڈیڈ (Ex.D.3) پیش کی۔ مدعی نے مارچ 2003 میں پاور آف اٹارنی کو منسوخ کیا تھا، تو اس نے سب رجسٹرار کو اس کی منسوخی کی درخواست کیوں نہیں دی؟ اس عدم کارروائی کی وجہ سے پلاںٹف کا دعویٰ قابلِ اعتبار نہیں رہا۔
2. **ہائی کورٹ کی مداخلت*
*: ہائی کورٹ نے ضلعی عدالتوں کی تحقیقات پر توجہ نہیں دی اور بعض قانونی تقاضوں کی عدم تعمیل کی بنیاد پر فیصلہ تبدیل کر دیا۔
3. **خاندانی تصفیہ کی اہمیت*
*: عدالتیں خاندانی تصفیے کی اہمیت کو تسلیم کرتی ہیں اور ایسے تصفیے جو خاندانی اختلافات کو حل کرتے ہیں اور امن قائم کرتے ہیں، ان کی حمایت کرتی ہیں۔
- **Stapilton v. Stapilton (1739)*
*: عدالت نے کہا کہ خاندانی معاہدہ جس کا مقصد خاندان کی عزت اور ہم آہنگی بچانا ہے، اسے پورا کرنا چاہئے۔
- **Gordon Case (1821)**
: اگر خاندانی معاہدے منصفانہ اور بلا دھوکہ دہی کیے گئے ہوں، تو عدالت انہیں برقرار رکھتی ہے، چاہے فریقین اپنے حقوق کو غلط سمجھتے ہوں۔
- **Khunni Lal Case (1911)**
: خاندانی تصفیے جو مختلف رکنوں کے درمیان تنازعات کو حل کرتے ہیں، انہیں تسلیم کیا جاتا ہے، بشرطیکہ یہ معاہدے درست طور پر کیے گئے ہوں۔
یہ جائزہ عدالتوں کی خاندانی تصفیے کے معاملے میں پختہ موقف اور قانونی معیارات کی اہمیت کو اجاگر کرتا ہے۔
کہانی کا خلاصہ کچھ یوں ہے:
1. **مدعی اور مدعا علیہ**: مدعی (پلاںٹف) نے دعویٰ کیا کہ اس نے اپنے بھائی، بشیر احمد (مدعا علیہ نمبر 2) کی طرف سے دی گئی پاور آف اٹارنی کی مدد سے ایک فروخت کے معاہدے (Ex.P.3) کو رجسٹر کیا، جبکہ عبدالرحمٰن (مدعا علیہ نمبر 3) نے ایک مختلف فروخت کے معاہدے (Ex.D.3) کو رجسٹر کروایا۔
2. **تنازعہ**
: مدعی نے دعویٰ کیا کہ اس نے مارچ 2003 میں پاور آف اٹارنی منسوخ کر دی تھی، مگر اس وقت کوئی تحریری درخواست سب رجسٹرار کو نہیں دی، جس سے اس کا دعویٰ مشکوک ہو گیا۔
3. **عدالت کی فیکٹ فائنڈنگ*
*: ضلعی عدالتوں نے مدعی کی باتوں کو درست مانتے ہوئے اس کے حق میں فیصلہ سنایا، لیکن ہائی کورٹ نے اس فیصلے کو نظرانداز کرتے ہوئے مدعا علیہان کے حق میں فیصلہ دیا، کیونکہ اس نے قانونی تقاضوں کی عدم تکمیل کی بنا پر مدعی کے دعوے کو مسترد کیا۔
4. **سپریم کورٹ کا فیصلہ*
*: سپریم کورٹ نے ہائی کورٹ کے فیصلے کو رد کر دیا اور ضلعی عدالتوں کی فیکٹ فائنڈنگ کو درست قرار دیتے ہوئے اس بات کو تسلیم کیا کہ خاندان کے معاہدے کی اہمیت اور فیکٹ فائنڈنگ کے مطابق فیصلہ درست تھا۔
یہ کیس اس بات کو اجاگر کرتا ہے کہ خاندان کے اندرونی تنازعات کے حل کے لئے کئے جانے والے معاہدے اور ان کی قانونی حیثیت بہت اہم ہیں۔
Must read Judgement
Present:
Mr. Justice Munib Akhtar
Mr. Justice Shahid Waheed
Civil Appeal No.197-L of 2019
And
CMA Nos.3759 & 5618 of 2022
1. C.A.197-L/2019
(Against the order dated
29.04.2019 passed by the
Lahore High Court, Lahore in CR
NO.1657/2014)
Bashir Ahmed (deceased)
through his L.Rs., etc v.
Nazir Ahmad, etc
2. C.M.A.3759/2022 IN C.A.197-
L/2019
(For transposition of appellants
No.1-b, 2-a and respondents
No.3 and 4)
Bashir Ahmed (deceased)
through his L.Rs., etc v.
Nazir Ahmad, etc
3. C.M.A.5618/2022 IN C.A.197-
L/2019
(For impleadment as party)
Bashir Ahmed (decd.)
through his L.Rs., etc v.
Nazir Ahmad, etc
For the Appellant(s)/
Applicant(s) (CMA
No.3759/22)
: Mr. Mahmood Ahmad Bhatti, ASC
For the Applicant(s)
(CMA No.5618/22)
: Mr. Mudassar Khalid Abbasi, ASC
For Respondent NO.1
: Mr. Muhammad Munir Paracha, ASC
Rana Abid Nazeer, ASC
Mr. Tariq Aziz AOR
For Respondent No.2
: Barrister Umer Aslam Khan, ASC
For Respondents No.3&4
Nemo
Date of Hearing
: 30.04.2024
JUDGMENT
SHAHID WAHEED, J-. The appellants in this
direct appeal are the legal heirs of one of the defendants,
namely defendant No.2 who, though succeeded up to the
first Appellate Court but, could not secure approval of a
decree issued in their favour from the Revision Court. This
case, therefore, necessitates a comprehensive review of both
the facts and the law. This is essential not only due to the
disparity in reasoning between the Revision Court and the
C.A.197-L/2019 etc
2
first Appellate Court but also because it sheds light on the
concerning aspects of our society.
2.
It is a well-established fact that family serves as
the fundamental building block of our society, and despite
advancements in various aspects of our lives, many business
entrepreneurs still continue to uphold the tradition of living
in a joint family setting, where the ownership of assets is
often unclear. This social structure plays a pivotal role in
their accomplishments. However, it is disheartening that
such joint families frequently encounter internal conflicts
and disagreements, ultimately leading to their disintegration.
These disputes often culminate in legal battles, leaving a
lingering bitterness among the family members involved. The
case at hand is a poignant example of such a situation,
where one brother thinks that the family is like a sponge in
his hands, to be squeezed for his own benefit. With this leadin note, we now move on to the details of the dispute, which
calls for our decision.
3.
This direct appeal involves a dispute among
brothers. Nazir Ahmad, the plaintiff, had three brothers:
Muhammad Sharif, Bashir Ahmad (Defendant No.2), and
Abdul Rashid (Defendant No.3). Abdul Rashid's daughter,
Bilqees Akhtar, was arrayed as defendant No.1 in the suit. It
is important to note that Muhammad Sharif was not
included in the suit. The brothers jointly and severally
owned properties which included: (i) commercial land
measuring 46 marlas, situated at Pasrur Road, Daska
(Madina Industries), (ii) two commercial plots, 10 marlas
each, situated at College Road, near Tank Water Supply
C.A.197-L/2019 etc
3
No.2, Daska, (iii) two shops comprising land measuring 15
marlas, situated at College Road, Daska, (iv) one plot
measuring 1 kanal, situated at College Road, Daska, (v)
agricultural land measuring 53 kanals and 17 marlas,
situated at Jamke Cheema, Daska, (vi) one plot measuring
12 marlas, situated at Jinnah Road, Gujranwala, and (vi) a
house measuring 11½ marlas at Zahid Colony, Gujranwala.
A feud giving rise to this appeal relates to agricultural land
measuring 53 kanals, 17 marlas at Jamke Cheema, Daska.
This land was in the name of Nazir Ahmad, the plaintiff,
who, in respect of it, constituted his brother Abdul Rashid
(Defendant No.3) as his general attorney by a registered
power of attorney, dated 15th of August, 2002 (Ex.D.9).
Based on that authority, Abdul Rashid, firstly, sold 2 kanals
land jointly to Bilqees Akhtar (Defendant No.1) and Bashir
Ahmad (Defendant No.2) by mutation No.4766 dated 13th of
November, 2002 (Ex.P.4), and then on 29th of April, 2003,
sold the remaining 51 kanals, 17 marlas jointly to his
daughter Bilqees Akhtar and brother Bashir Ahmad by a
registered sale deed (Ex.P.3).
4.
On 10th of May 2003, Nazir Ahmad, the plaintiff,
instituted a suit for declaration, cancellation of documents,
and possession along with perpetual injunction, contending
therein that he was the owner of 53 kanals, 17 marlas land,
situated in village Jamke Cheema, Daska, and that he
constituted Abdul Rashid (Defendant No.3), his brother as
his general attorney to look after his affairs as well as the
land held by him, employing a registered power of attorney
(Ex.D.9). However, he revoked the same by a deed registered
on the 5th of May, 2003 (Ex.P1). He alleged that his general
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5
iii.
Bashir Ahmed: Plot measuring 12-marlas,
situated at Jinnah Road Gujranwala,
commercial plot measuring 10 marlas adjacent
to house, and a house measuring 7-marlas
situated at Gali Sargodian, College Road, Daska.
iv.
Nazir Ahmed: Commercial area measuring
2-kanals and 6-marlas (46 marlas) situated at
Pasrur Road, Daska, where “Madina Industries”
is running along with a house measuring 15-
marlas, situated at Gali Sargodian, College
Road, Daska.
It was further maintained in paragraph 3 of the written
statement that according to the scheme of the partition of
properties, each brother was given the general power of
attorney deed of the other brothers. In this way, Abdul
Rashid (Defendant No.3) was given registered general power
of attorney deed dated 20th of March, 2002 (Ex.D.9). It was
also pointed out that Bashir Ahmed (Defendant No.2) had
also executed a general power of attorney (Ex.D.6) in favour
of Nazir Ahmed, the plaintiff. Based on this, Nazir Ahmed
transferred the land owned by Bashir Ahmed to his sons. In
essence, their plea was that this was a case of quid pro quo.
6.
The first question on facts emanating from the
parties’ pleadings for determination was whether any family
settlement embodied a scheme or the arrangement regarding
the division of properties. A perusal of the record indicates
that after the plaintiff presented his affirmative evidence,
Bashir Ahmed (Defendant No.2) and Bilqees Akhtar
(Defendant No.1) jointly filed an application with the Trial
Court. They claimed that a scheme for partition of properties
was documented in a memorandum dated 23rd of November,
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6
2000, which the plaintiff and his brothers signed as an
acknowledgement and the original memorandum was in the
plaintiff’s possession. They requested the Trial Court to
direct the plaintiff to produce original memorandum dated
23rd of November, 2000, containing the scheme for
properties partition, or alternatively to allow them to produce
it as secondary evidence. The plaintiff contested this
application. The Trial Court dismissed the application on
22nd of May, 2006, finding no merit in it. The revision of this
order was sought. The Revision Court, on careful
consideration of the affirmative evidence led by the plaintiff,
revised the Trial Court’s order on 5th of October, 2006,
stating that the execution of the memorandum was proved
and allowed it to be placed on record. This revisional
judgment was not further assailed; thus, it became final.
Given the situation, there is no need to reassess the evidence
because the above revisional judgment, which has become
final, is sufficient to conclude that a settlement to divide the
family properties, as claimed by the defendants in their
written statement, was reached among the brothers, and
that was recorded in the memorandum dated 23rd of
November, 2000
(Ex.D.1). Be it noted that this
memorandum/document merely stated the nature of
arrangement arrived at as regards the division of properties;
it did not effect a partition.
7.
Now, it becomes necessary to investigate one
more question on facts. How did the brothers give effect to
the arrangement among them regarding the division of
properties? This takes us to the deposition made by the
plaintiff (P.W.1) in his cross-examination. He admitted
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during cross-examination that his brothers had granted him
power of attorney for their properties. He also admitted that
three different deeds of power of attorney were executed in
his name. He clarified that the first power of attorney
concerned the land behind Madina Industry, given by his
two brothers, Muhammad Sharif and Bashir Ahmad. The
second power of attorney pertained to Muhammad Sharif’s
house located in Gali Sargodian. The third power of attorney
was related to Bashir Ahmad’s 7-Marla house on College
Road. Furthermore, the plaintiff acknowledged during crossexamination that, using the aforementioned power of
attorney, he had gifted his sons the 27 Marla land of Madina
Industry and transferred the College Road house to his wife.
The above statement, when read with the documents
tendered by the defendants in evidence, shows that the mode
of distribution of the properties was the same as the
defendants had disclosed in their written statement. A
perusal of the evidence suggests that the defendants
submitted three deeds of power of attorney. The first deed
(Ex.D.2) was executed by Muhammad Sharif in favour of the
plaintiff regarding 7½ Marlas of land. The second deed
(Ex.D.3) was executed by Muhammad Sharif and Bashir
Ahmad (Defendant No.2) in favour of the plaintiff regarding
2-Kanals of land. The third deed (EX.D.6) was executed by
Bashir Ahmad (Defendant No.2) in favour of the plaintiff
regarding 7-Marlas of land. The evidence further suggests
that the plaintiff then executed a gift deed of 8-Marlas using
a power of attorney (Ex.D.3) in favour of his sons
Muhammad Qaisar, Muhammad Mehmood-ul-Hasan, and
Muhammad Faiz-ul-Hassan. He also executed a registered
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sale deed of 7-Marlas using a power of attorney (Ex.D.6) in
favour of his son Muhammad Faiz-ul-Hassan. Moreover, the
plaintiff executed a gift deed of land measuring 19 marlas
(Ex.D.7) in favour of his sons Muhammad Qaisar Nazir,
Muhammad Mehmood-ul-Hassan, and Muhammad Faiz-ulHassan using a power of attorney (Ex.D.3) issued by
Muhammad Sharif and Bashir Ahmad (Defendant No.2).
Lastly, the plaintiff executed a sale deed (Ex.D.8) using a
power of attorney (Ex.D.2) issued by Muhammad Sharif, and
transferred the land measuring 7-Marlas to his wife, Mst.
Razia. From the above appreciation of evidence, it stands
established that four brothers had joint properties and a
partition took place between them. The brothers gave each
other general power of attorney to formalize the partition.
The plaintiff then alienated the land to his sons and wife,
which he had obtained through the partition from joint
properties based on the general power of attorney in his
favour on behalf of his brothers. Similarly, Abdul Rashid
(Defendant No.3) acted upon the general power of attorney
(Ex.D.9) in his favour on behalf of the plaintiff and alienated
the land measuring 53 kanals and 17 marlas to defendants
No.1 and 2, which he had obtained from joint properties
through the partition. So, the scheme of partitioning joint
properties amongst brothers was proved, as stated in the
written statement.
8.
This brings us to the stage of examining the last
question on facts whether the plaintiff had revoked the
power of attorney (Ex.D.9) in favour of Abdul Rashid
(Defendant No.3) and, therefore, the sale deed dated 29th of
April, 2003 (Ex.P.3), and mutation No.4766 dated 13th of
C.A.197-L/2019 etc
9
November, 2002 (Ex.P.4) in favour of Bilquees Akhtar
(Defendant No.1) and Bashir Ahmad (Defendant No.2) were
illegal. It was claimed in the plaint that during the last ten
days of March, 2003, in the presence of Muhammad Asghar
(P.W.2) and Shahid Ali (P.W.3), the plaintiff had verbally told
Abdul Rashid (Defendant No.3) that he had cancelled his
power of attorney (Ex.D.9), so it could not be used;
subsequently, on legal advice, the revocation deed was
drawn on 29th of April, 2003, but the stamp vendor recorded
this fact in his register on 30th of April, 2003; and finally, it
was registered with the Sub-Registrar on 5th of May, 2003.
Mere, this assertion is sufficient to hold that mutation
No.4766 (Exh.P.4) was valid because it was sanctioned much
before the alleged revocation of power of attorney. Now, we
need to determine whether the sale deed dated 29th of April,
2003 (Exh.P.3) could be declared illegal, based on the facts
pleaded in the plaint. We do not hold the view that the
revocation deed (Exh.P.1) was signed on 29th of April, 2003,
and came into effect from that date, and thus, the sale deed
(Exh.P.3) based on the revoked power of attorney (EXh.D.9)
was illegal. This is for two reasons. Firstly, the revocation
deed (Ex.P.1) shows that on 30th of April, 2003, the plaintiff
had purchased its stamp paper, but the writing upon it
contained the date of 29th of April, 2003. This solitary fact is
sufficient to infer that the revocation deed (Ex.P.1) was not
scribed on 29th of April, 2003. It appears that due to this
discrepancy, the plaintiff, in his plaint, stated that the stamp
paper was purchased on 29th of April, 2003, but the vendor
entered it in his register at Serial No.7040 on 30th of April,
2003. This position is unacceptable because it does not
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appeal to the mind of any prudent man. Secondly, on 29th of
April, 2003, both the plaintiff and Abdul Rashid (Defendant
No.3) were present at the Sub-Registrar’s office to produce
documents for registration. The plaintiff presented a sale
deed (Ex.D.5) using the power of attorney given by his
brother, Bashir Ahmed (Defendant No.2), while Abdul Rashid
(Defendant No.3) presented the sale deed (Ex.D.3). If the
plaintiff had revoked the power of attorney in March, 2003,
he could have made a written request to the Sub-Registrar to
not register the sale deed (Ex.D.3) by stating the revocation,
but he did not. Given the state of affairs, the plaintiff’s claim
of revoking the power of attorney before the registration of
the sale deed (Ex.P.3) was not plausible, and the testimonies
of Muhammad Asghar (P.W.2) and Shahid Ali (P.W.3) were
also not credible. Therefore, the sale deed (Ex.P.3) could not
be considered illegal based on these circumstances.
9.
It is important to note that our determination of
factual questions aligns with the findings of the District
Courts, which were based on the probable conclusions
drawn from the preponderance of evidence presented by the
parties to the suit. However, in its revisional jurisdiction, the
High Court did not take into account the exposition of facts.
Instead, it reversed the decrees in favour of the defendants,
and upheld the plaintiff’s claim because it found that the
defendants had not complied with certain legal
requirements. It is, therefore, essential to assess the points
that prevailed with the High Court.
10.
Before delving into the points on which the High
Court revised the concurrent findings of its subordinate
courts, it is imperative to discuss the general impact and
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significance of family settlement. A family settlement involves
members of the same family striving to resolve their
differences and disputes to achieve lasting resolution.
Through these arrangements, family members aim to bring
about harmony and goodwill, settling conflicting claims or
disputed titles to promote peace within the family. Courts
recognise the special significance of family arrangements and
uphold them when made in good faith. This principle has
been developed by courts over a long period of time to
discourage litigation driven by greed, particularly in cases
involving the distribution of family estates, such as the one
being considered here. In this context, we may refer to some
earlier case law.
11.
The oldest case on the subject that comes to our
hands dates back almost three hundred years, which is the
case of Stapilton (1739).1 In this case, Philip Stapilton, the
father, in order to prevent disputes and ill consequences
between his two sons, drafted an agreement to divide his real
estate between them. The dispute in the case was that
Stapilton’s elder son, Henry, was a bastard and, thus, not a
legal heir to the estate. The defendant, being the only
legitimate son, claimed the right to all his father’s estate. The
Court held that the purpose behind this agreement was to
save the family honour, preserve harmony and affection
amongst family members and thus, resting upon grounds
which would not have been considered satisfactory if the
transaction had occurred between mere strangers, but
because the agreement was entered into to save the honour
of the family, and was a reasonable one, a court of equity
1
Stapilton v. Stapilton [(1558-1774) All ER 352].
C.A.197-L/2019 etc
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should, if it is possible, decree a performance of it. It further
observed that a court should be glad to lay hold of any just
ground to carry the agreement into execution and establish
the peace of a family giving effect to the agreement.
12.
The second case is that of Gordon (1821),2 where
Lord Eldon observed that when family agreements have been
fairly entered into, without concealment or imposition upon
either side, with no suppression of what is true, or
suggestion of what is false, then, although the parties may
have greatly misunderstood their situation and mistaken
their rights, a Court of Equity will not disturb the quiet,
which is the consequence of that agreement.
13.
Coming to the third case of Khunni Lal (1911),3
their Lordships of the Privy Council, considering a
compromise entered into between certain members of a
family by which they had settled their disputes and divided
the family property, quoted with approval certain
observations in Mewa Koonwer4 wherein the learned Judges
had said that the true character of the transaction appeared
to us to have been a settlement between the several
members of the family of their disputes, each one
relinquishing all claim in respect of all property in dispute
other than that falling to his share, and recognising the right
of the others, as they had previously asserted it to the
portion allotted to them respectively. It was in this light,
rather than as conferring a new distinct title on each other,
2 Gordon v. Gordon [(1821) 3 Swans 400].
3
Khunni Lal v. Gobind Krithna Narain [(1911) 38 Ind. App. 87]. This decision was
fully endorsed by a later decision of the Privy Council in Mt. Hiran Bibi v. Mt.
Sohan Bibi [AIR 1914 PC 44].
4
Lalla Oudh Beharee Lall v. Ranee Mewa Koonwer, [(1868) 3 Agra HCR 82 at
P.84].
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that the parties themselves seem to have regarded the
arrangement, and it is the duty of the Courts to uphold and
give full effect to such an arrangement. And so, through
equity, a family settlement was cured and given full effect.
14.
The fourth case that we need to look at is of
Mahomed Musa (1915),5 where the Privy Council pointed out
in a case of family settlement that although the compromise
and the decree taken together were considered to be
defective or inchoate as elements making up a final and
validly concluded settlement for the extinction of the equity
of redemption, the actings and the conduct of the parties
founded upon the performance or part performance of such
an agreement were sufficient to cure all defects; for equity
will support a transaction clothed imperfectly in those legal
forms to which finality attaches after the bargain has been
acted upon.
15.
The fifth case that we may refer to here is of
Musammat Hardei (1919),6 where the Privy Council held that
the plaintiff was bound by her family agreement and did not
allow her to repudiate it because a long period of time which
had elapsed since it was made, nor to impeach the sale,
which was made upon the faith of it.
16.
The sixth case that we would like to mention is
of Martin Cashin (1938).7 In this case their Lordships of the
Privy Council observed that a parent can be generous to a
son, or legitimate children to an illegitimate one, or a son to
5 Mahomed Musa v. Aghore Kumar Ganguli [28 Ind. cas. 930(1915)].
6 (Musammat Hardei v. Bhagwan Singh) [24 C.W.N. 105(1919)]=[50 Ind. Case
812].
7 Martin Cashin and others v. Peter J. Cashin [A I R 1938 PC 103].
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a mother upon the occasion of a family arrangement without
its being proper or possible in equity merely on that ground
to suggest that the arrangement is an unfair one and ought
to be set aside. It would indeed be strange if an agreement
entered into by parties of full contracting capacity could be
set aside in equity because, regarded from the standpoint of
the family, it was generous as well as just.
17.
The decision of the Indian Supreme Court is also
an important reference to consider in this context. In Tek
Bahadur Bhujil8 (1966), it was pointed out that a family
arrangement could be arrived at even orally and registration
would be required only if it was reduced into writing. It was
also held that a document which was no more than a
memorandum of what had been agreed to did not require
registration. The Indian Supreme Court had observed thus,
“Family arrangement as such can be arrived at orally. Its
terms may be recorded in writing as a memorandum of what
had been agreed upon between the parties. The
memorandum need not be prepared for the purpose of being
used as a document on which future title of the parties be
founded. It is usually prepared as a record of what had been
agreed upon so that there be no hazy notions about it in
future. It is only when the parties reduce the family
arrangement in writing with the purpose of using that
writing as proof of what they had arranged and, where the
arrangement is brought about by the document as such,
that the document would require registration as it is then
8
Tek Bahadur Bhujil v. Debi Singh Bhujil [AIR 1966 SC 292]
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that it would be a document of title declaring for future what
rights in what properties the parties possess.”
18.
The next reference is to a case of this Court. In
Atta Hussain Khan (1979)9, it was held that a document that
embodies a bona fide settlement whereby a person agrees to
surrender his rights for the preservation of peace, amity and
harmony between the members of the family amounts to a
family settlement arrived between the members for a lawful
consideration, and is fully binding on them.
19.
We would now refer to another case of this
Court. In Anwar Khan (2004)10, it was argued that since the
family arrangement was not registered, it could not be relied
upon, nor could it be produced as evidence in Court. This
Court concluded that if the parties were not interested in
partition of property on permanent transfer basis, they could
not be forced or compelled to do so as it depended upon their
whims and wishes to distribute the property in any manner
as may be deemed fit and proper, being their personal and
family affair. In such an eventuality, the question of
registration of such agreement, did not arise. The Court
relied upon the case of Jahanzeb11 to reach this conclusion.
20.
The last case that we may refer to is of Allah
Dad12 (2005), where one of the questions before this Court
was whether an unregistered family settlement was
admissible in evidence. The Court observed that the object
behind the family settlement is always to settle existing or
future property disputes amongst the family members,
9
Atta Hussain Khan v. M. Siddiqui Jan [1979 SCMR 630]
10 Anwar Khan v. Abdul Manaf [2004 SCMR 1261]
11 Jahanzeb and others v. Muhammad Abbas [1999 SCMR 2182].
12 Allah Dad v. Duhman Khan [2005 SCMR 56
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create goodwill, and avoid future disputes between the
successors-in-interest. The bona fide transaction of family
settlement would be binding on the parties and if the
settlement by the conduct of the parties, is capable of
receiving constant recognition for a long time, the right to
assert under the agreement must not be subsequently
allowed to be impeached, and Courts may not reject the
family settlement on technical grounds.
21.
On this subject, we found the relevant insights
in section 132 of “Commentaries on Equity Jurisprudence”.
13
To better understand the effect and value of the family
settlement, it would be helpful to read it here in extenso. It
says: “There are cases of family compromise, where, upon
principles of policy, for the honour or peace of families, the
doctrine sustaining compromises has been carried further.
And it has been truly remarked, that in such family
arrangements the Court of Chancery has administered an
equity, which is not applied to agreements generally. Such
compromises, fairly and reasonably made, to save the
honour of a family, as in case of suspected illegitimacy, to
prevent family disputes and family forfeitures, are upheld
with a strong hand; and are binding, when in cases between
mere strangers the like agreements would not be enforced.
Thus, it has been said, that if, on the death of a person,
seised in fee, a dispute arises, who is heir; and there is room
for a rational doubt, as to that fact, and the parties deal with
each other openly and fairly, investigating the subject for
themselves, and each communicating to the other all that he
13 Honourable Mr. Justice Story, Commentaries on Equity Jurisprudence
[London: Stevens and Haynes (1892) P.79
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knows, and is informed of, and at length they agree to
distribute the property, under the notion that the elder
claimant is illegitimate, although it turns out afterwards that
he is legitimate; there, the court will not disturb such an
arrangement, merely because the fact of legitimacy is
subsequently established. Yet, in such a case, the party acts
under a mistake of fact. In cases of ignorance of title, upon a
plain mistake of the law, there seems little room to
distinguish between family compromises and others.”
22.
Here, it would also be apposite to cite the points
made in the treaties “Kerr on Fraud and Mistake”
14 regarding
family arrangements. On page 168, it is noted that: “the
principles which apply to the case of ordinary compromises
between strangers do not equally apply to the case of
compromises in the nature of family arrangements. Family
arrangements are governed by a special equity peculiar to
themselves, and will be enforced, if honestly made, although
they have not been meant as a compromise, but have
proceeded from an error of all parties, originating in mistake
or ignorance of fact as to what their rights actually are, or of
the points on which their rights actually depend.”
23.
The law in England on this point is almost the
same. In Halsbury’s Laws of England,15 on pages 623-625
following apt observations regarding the essentials of the
family settlement and the principle governing the existence
of the same are made:
14 Dennis Lane McDonnell & John George Monroe, Kerr on the Law of Fraud and
Mistake [London: Sweet and Maxwell Limited (1952) P.168].
15 Lord Mackay of Clashfern, Halsbury’s Laws of England [Fifth Edition, Volume
91 (2012), Para 903 and 906].
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903. Meaning of family arrangements. A family
arrangement is an agreement between members
of the same family, intended to be generally and
reasonably for the benefit of the family either by
compromising doubtful or disputed rights or by
preserving the family property or the peace and
security of the family by avoiding litigation or by
saving its honour.
The agreement may be implied from a long
course of dealing, but it is more usual to embody
or to effectuate the agreement in a deed to which
the term ‘family arrangement’ is applied.
906.
Principles governing family
arrangements.
Family arrangements are
governed by principles which are not applicable
to dealings between strangers'. When deciding
the rights of parties under a family arrangement
or a claim to upset such an arrangement, the
court considers what in the broadest view of the
matter is most in the interest of the family, and
has regard to considerations which, in dealing
with transactions between persons not members
of the same family, would not be taken into
account. Matters which would be fatal to the
validity of similar transactions between
strangers are not objections to the binding effect
of family arrangements. Conversely, an intention
to create a legally enforceable contract may be
negatived more readily where the parties to an
arrangement are members of the same family
than where they are not.
Although usually and necessarily present where
a family arrangement is made, parental
influence will not by itself render the transaction
voidable, but where, at a time when he is not
fully emancipated from his parent's influence, a
child enters into a family arrangement under
which the parent benefits to the total exclusion
of the child or benefits to an extent out of all
proportion to the benefit accruing to the child,
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there is a presumption of undue influence. The
presumption will be rebutted if it appears that,
when the arrangement was entered into, the
child was able to form a free and unfettered
judgment independent of any sort of control.
24.
The principles governing family settlement or
arrangements that may be deducted from the above referred
survey of case law and the law books may be outlined in the
following form:
(i) The family settlement has to be genuine,
bona fide and must aim to resolve family
disputes and conflicting claims by ensuring a
fair and equitable distribution or allocation of
properties among all family members.
(ii) When an agreement is entered into to
preserve the honour of a family and is
reasonable, the Court will seize any justifiable
reason to enforce the agreement and promote
peace within the family.
(iii) The settlement must be made willingly and
should not be influenced by fraud, social or
familial pressure, and undue influence.
(iv) Like an oral contract, family settlements
may well also be oral and if it is, no
registration of the settlement is necessary.
(v) It is well established that registration of a
family settlement is required only if the terms
of the settlement are put into writing. However,
it is important to distinguish between a
document that includes the terms and details
of a family settlement and a simple
memorandum created after the arrangement
has been made, intended either for record
purposes or for informing the Court to effect
necessary mutation. In such cases, the
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memorandum does not create or extinguish
any rights in immovable property and,
therefore, does not fall under the requirements
of the Registration Act, 1908 making it not
subject to compulsory registration.
(vi) In cases where the parties are not inclined
to divide property permanently, they cannot be
forced to do so. The decision to distribute the
property is based on their own preferences,
and it is considered a personal and family
matter. In such situations, there is no
requirement for registering such an agreement.
(vii) The members involved in the family
settlement must have a pre-existing title,
claim, or interest, even a potential claim, in the
property that is recognised by all parties to the
settlement. If one party lacks a title but, under
the arrangement, another party relinquishes
all claims or titles in favour of that person and
acknowledges them as the sole owner, a preexisting title will be assumed. Consequently,
the family arrangement will be upheld, and the
Courts will readily endorse it.
(viii) A genuine and bona fide family settlement
can resolve disputes, whether current or
potential, even if they do not involve legal
claims. As long as the arrangement is fair and
equitable, it is final and binding on all parties
involved.
(ix) Courts tend to favour maintaining the
family arrangement rather than disturbing it
on technical or trivial grounds. Where the
Courts find that the family arrangement
suffers from a legal deficiency or a formal
defect, the principle of estoppel is invoked and
applied to turn down the plea of the person
who, being a party to family arrangement,
seeks to set aside a settled dispute, and claims
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to revoke the family arrangement under which
he himself has received some material benefits.
25.
We will now have a go at applying the principles
mentioned above to the facts of the present case. This is to
determine whether the legal issues that influenced the High
Court’s decision could justify accepting the plaintiff’s claim
and reversing the first Appellate Court’s decree.
26.
The first legal omission that the High Court
noticed was that the attorney Abdul Rashid (Defendant No.3)
had transferred the plaintiff’s property to his own relatives
(i.e., his brother Bashir Ahmed, Defendant No.2, and his
daughter Bilqees Akhtar, Defendant No.1, who are also close
relatives of the plaintiff) without his specific permission. This
was founded on the precautionary principle first expounded
by this Court in Fida Muhammad (1985)16 and subsequently
followed in different cases17, as referenced in the High
Court’s judgment. According to this principle, the agent
transferring the principal’s property is obligated to firstly, in
case of difficulty (and it will be a case of difficulty if a power
of attorney is susceptible to doubt about its interpretation),
use all reasonable diligence in communicating with the
principal and seeking to obtain his instructions. Secondly, if
the agent deals on his own account with the property under
the agency, e.g., if he purchases it himself or for his own
benefit, he, in his own interest, should obtain the consent of
the principal in that behalf after acquainting him with all
material circumstances on the subject, failing which the
16 Fida Muhammad v. Pir Muhammad Khan (Deceased) through Legal Heirs and
another [PLD 1985 SC 34]
17 Jamil Akhtar v. Las Baba [PLD 2003 SC 494], Muhammad Ashraf v. Muhammad
Malik [PLD 2008 SC 389], Amina Rani v. Ashfaq Ahmad [2008 SCMR 805], and
Mst. Naila Kausar v. Sardar Muhammad Bakhsh [2016 SCMR 1781]
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principal is at liberty to repudiate the transaction. We take
the view that there was no warrant to apply this principle to
the peculiar facts of the present case. The general powers of
attorney accompanied by a family settlement, exchanged by
the parties to achieve the objectives of a family settlement,
are to be treated as a species apart and an exception to the
above-mentioned precautionary principle. It is reminded here
that family settlements are not governed by principles that
apply to dealings between strangers18. When deciding the
rights of party under the family settlement or claims to upset
such settlement, the Court considers what, in the broadest
view of the matter, is most for the interests of a family19.
Matters that would be fatal to the validity of a similar
transaction between strangers are not objections to the
binding effect of a family settlement or arrangement20.
Considering this legal perspective, upon reviewing the
evidence presented, it becomes apparent that the true
intention behind the arrangement outlined in the
memorandum dated 23rd of November, 2000 (Ex.D.1) was to
fairly distribute the properties among real brothers to buy
peace of mind and bring about complete harmony in the
family and prevent potential legal disputes and, for this
purpose, each brother acknowledged the claims of the other
brothers and granted them a general power of attorney,
allowing them to easily transfer their respective share of the
properties through sale, gift, etc. to anyone they deemed fit.
Such arrangements are governed by a special equity peculiar
to them and must be enforced if honestly made. In this case,
18 Dudley Persse v. Henry Persse (1840) VII Clark & Finnelly 279.
19 Jodrell v. Jodrell (1851), 14 Beav. 397.
20 Hoblyn v. Hoblyn (1889) 41 Ch. D. 20
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the plaintiff did not claim that the property distribution
arrangement embodied in the memorandum dated 23rd of
November, 2000 (Ex.D.1) was unfair or involuntary. He also
did not allege any fraud, coercion, or undue influence.
Therefore, the precautionary principle did not apply in this
situation and could not be used to disrupt the family
settlement. If it did, it would essentially allow the plaintiff to
exploit the family settlement for his own gain, potentially
straining harmony and goodwill within the family. This was
not wholesome and permissible under the law. It is
important to note that the plaintiff had previously used
general powers of attorney (i.e., Ex.D.2, Ex.D.3, and Ex.D.6)
from his brothers, given to him under the same family
settlement (Ex.D.1), without seeking their permission in
favour of his sons and wife. The details whereof have been
stated hereinabove in paragraph 7. This conduct constitutes
and operates against the plaintiff as an estoppel to
challenging transactions recorded in the sale deed (Ex.P.3)
and mutation (Ex.P.4) made by Abdul Rashid (Defendant
No.3) based on a power of attorney (Ex.D.9) given by him.
27.
The High Court also discounted the
memorandum dated 23rd of November, 2000 (Ex.D.1) for
three reasons. Firstly, it was not attested by a witness in
accordance with Articles 17 and 79 of the Qanun-eShahadat, 1984. Secondly, it fell under Section 17 of the
Registration Act, 1908 and was a document that should have
been registered, and since it was not registered, it was
considered ineffective for transferring any rights. Lastly, the
High Court found that it was not proved in accordance with
the law. The objections raised by the High Court regarding
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the memorandum (Ex.D.1) appear to be based on a
misinterpretation of the evidence and a flawed application of
the law; as a result, these objections do not hold up under
legal scrutiny. We explain why. In legal terms, members of a
family descending from a common ancestor or a near
relation can make an agreement to settle their dispute and
divide their property either orally or in writing to foster peace
within the family. In the case at hand, a document (Ex.D.1)
detailing the distribution of properties was drafted on 23rd of
November, 2000. This document could be categorized as a
family arrangement rather than a standard partition deed.
Its contents revealed that the brothers initially reached an
oral agreement regarding property distribution, which was
then recorded in a memorandum (Ex.D.1). The property
division outlined in the memorandum (Ex.D.1) did not
involve transferring property from one brother to another,
nor did any brother derive their property rights from
another. Instead, the arrangement embodied in the
memorandum (Ex.D.1) acknowledged the rights of each
brother to specific properties listed under their names. How
the properties were to be transferred from one brother to
another was verbally settled among the four brothers, and
general powers of attorneys were exchanged among all the
brothers to give effect to this verbal agreement, which details
have been explained above. Since the memorandum (Ex.D.1)
did not constitute a deed of transfer, gift, exchange,
surrender, etc., it did not fall under the clauses of Section 17
of the Registration Act, 1908, which require registration21. It
also did not contain any financial or future obligations
21 Muhammad Akbar and others v. Province of Punjab through DOR, Lahore and
others [2022 SCMR 1532]
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requiring attestation by two witnesses as per Article 17 of the
Qanun-e-Shahadat, 1984. However, it is made clear that if
the settlement were used as a document to create or declare
rights in immovable property worth more than Rs.100, it
would have needed attestation by two witnesses and also
registration. It is important to note that, even though the
memorandum (Ex.D.1) was not registered, it was open for
either party to prove that there had been a family settlement
which was acted upon. It seems that the defendants were
aware of this legal position and, therefore, not only presented
oral evidence to establish the family settlement but also
requested to present secondary evidence of the
memorandum (Ex.D.1). The Additional District Judge
granted permission to produce secondary evidence by his
order dated 5th of October, 2006, as the evidence on record
proved its execution. As the plaintiff did not challenge this
order, it became final. Therefore, the High Court’s conclusion
that it was not proved according to law was incorrect.
28.
Having analyzed the questions on facts and law,
we have found that the cause for bringing the suit, giving
rise to this appeal, was not bona fide but an outcome of
greed and an attempt to foil the unity achieved by the family
settlement. Although this bitter fact stood established in the
Trial Court, still the plaintiff manipulated his niece Bilqees
Akhtar (Defendant No.1) to employ another tactic at the
appellate stage to disrupt the family peace. He took her to
the first Appellate Court and had her statement recorded. In
her statement, she claimed to have reached a compromise
with the plaintiff and stated that she would have no
objection if the suit was decreed. How did this happen? Why
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suffers from misreading of facts and evidence and
misapplication of law and thus cannot be approved. This
appeal, therefore, succeeds. The decree granted by the
judgment dated 29th of April, 2019, of the Lahore High Court
is set aside, and resultantly, the decree drawn by the first
Appellate Court is restored with costs throughout.
Judge
Judge
Announced in Open Court
at Islamabad on 19.08.2024.
Judge
APPROVED FOR REPORTIN
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suffers from misreading of facts and evidence and
misapplication of law and thus cannot be approved. This
appeal, therefore, succeeds. The decree granted by the
judgment dated 29th of April, 2019, of the Lahore High Court
is set aside, and resultantly, the decree drawn by the first
Appellate Court is restored with costs throughout.
Judge
Judge
Announced in Open Court
at Islamabad on 19.08.2024.
Judge
APPROVED FOR REPORTIN