 |
| General power of attorney |
📌 فراڈ پر مبنی جنرل پاور آف اٹارنی اور جائیداد کی منتقلی کالعدم قرار —
2026 MLD 320
🔹 کیس کا پس منظر
⚖️ ہائی کورٹ کے اہم قانونی نکات
🧾 عدالتی فیصلہ
Must read Judgement
2026 MLD 320
[Lahore]
Before Ch. Muhammad Iqbal, J
MUHAMMAD MANSHA and 5 others--Petitioners
Versus
SALEEM BIBI-Respondent
Civil Revision No. 1913 of 2014, decided on 30th April, 2025.
(a) Specific Relief Act (I of 1877)
Ss.39 & 42-Contract Act (IX of 1872), Ss.188 & 214--Qanun-e-Shahadat (10 of 1984), Arts.17, 79, 80 & 129(g)-Suit for cancellation of general power of attorney and subsequent mutations along with declaration of inheritance rights by the widow-General attorney selling land to his real brother-Legality-Permission of principal, requirement of Execution of general power of attorney, dispute over Proof---Onus-Beneficiary of the power of attorney had to prove its validity-Production of two attesting witnesses, requirement of-Non-production production, consequences of---"GN" was the original owner of land and had two wives, "SB" and "NB"-From his first marriage with "SB" respondent/plaintiff and respondent /defendant were born, while from his second marriage with "NB" petitioners Nos.2 to 5/defendants were born "GN" passed away in 2006-During the process of inheritance, the husband of "SB" (respondent/defendant) discovered that before "GN's" death, some land had already been transferred through sale and gift mutations by petitioner No.2/defendant while acting as attorney of his father "GN", in favour of his brother i.e. petitioner No.3/defendant---"SB" then filed a suit seeking cancellation of these transactions and declaration of her inheritance rights-Issue was centered upon "whether the mutations in question were against law and facts having been passed with connivance of revenue authorities; whether plaintiff was entitled for decree for declaration along with consequential relief and whether power of attorney in favor of petitioner No.2 was bogus and ineffective"?-Held: Respondent/plaintiff by producing trustworthy, reliable oral as well as documentary evidence substantially proved her case as per law-At the same time the burden to prove the execution of alleged power of attorney as well as valid incorporation of gift deed and sale mutations in question was shifted upon the petitioners/defendants to prove the validity of the said testimonies-The entire lis hinged upon the proof and validity of the power of attorney and the beneficiary of alleged power of attorney was required to prove the validity and execution of Ex.D-1 by producing the subregistrar who registered the said document but the said material witness was not produced and even the patwari and tehsildar who entered and sanctioned the alleged sale as well as gift mutations were also not produced---The petitioners/defendants also did not produce any attesting witness of gift mutation-Thus, non-production of above said material witnesses amounted to withholding of the best evidence and it was legally presumed that had the said witnesses been produced in the evidence, they would have deposed unfavorably against the petitioners/defendants, as such presumption under Art.129(g) of Qanun-e-Shahadat, 1984 clearly operated against them-Moreover, power ower of attorney was attested by only one witness whereas under Art. 17 of Qanun-e-Shahadat, 1984 it was mandatory to produce two attesting witness and in case of any discord both attesting witnesses were required to give testimony in the court as required by Art.79 of Qanun-e-Shahadat, 1984-Therefore, valid execution of the said document was not proved as per law-Moreover, if one witness had passed away the petitioners/defendants did not make any effort to prove the alleged power of attorney through the mode prescribed under Art.80 of the Qanun-e-Shahadat, 1984---Even otherwise, alleged power of attorney was based on fraud and misrepresentation ntation as such a any subsequent transaction made on the basis of said docume document would have had no ad no validity which were devoid of creating any rights and would have had no sanctity in the eyes of law-In absence of any solid foundation, the superstructure so built would have automatically crumbled down-Moreover, fraud vitiated most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction, stood automatically dismantled and any ill-gotten gain achieved by fraudster could not be validated under any norms of law-Moreover, no specific permission of the principle "GN" was taken since petitioner/defendant (alleged general attorney) transferred land land to his real brother-Trial Court failed to appreciate legal and factual aspects of the case and dismissed the suit of the respondent/plaintiff whereas appell opellate court court after discussing the facts as well as evidence through a well-reasoned judgment and decree had rightly allowed the appeal of the respondent and decreed her suit as prayed for-Further, in case of conflict between judgment between appellate court and Trial Court, the judgment of the appellate court was to be followed unless finding of appellate court was not supported by evidence-Civil revision being devoid of merit was dismissed, in circumstances.
(b) Contract Act (IX of 1872)---
Ss.188 & 214-Attorney selling property to his close relative/blood relation-Permission of principal-Requirement Scope-Attorney does not enjoy absolute power to sale/exchange/dispose of the property of his principal to his own close relative rather the exercise of such power is covenanted to obtain explicit and unequivocal permission from the principal to alienate the property to his blood relation/close relative.
Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others PLD 2008 SC 389; Mst. Naila Kausar and another v. Sardar Muhammad Bakhsh and others 2016 SCMR 1781 and Allah Bakhsh deceased through L..Rs and others v. Muhammad Riaz and others PLD 2025 SC 63 rel.
(c) Civil Procedure Code (V of 1908)
S.115-Conflicting judgments of Trial Court and appellate court---Preference---In the event of conflict of judgments, findings of appellate court are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence.
Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 and Rao Abdul Rehman (deceased) through legal heirs v. Muhammad Afzal (deceased) through legal heirs and others 2023 SCMR 815 rel.
(d) Fraud--
Fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction, stands. automatically dismantled and any ill-gotten gain achieved by fraudster cannot be validated under any norms of law.
Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited 2010 SCMR 1097 and Sindh Irrigation and Drainage Authority v. Government of Sindh and others 2022 SCMR 595 rel.
Muhammad Ahsan Bhoon, Khalid Pervez Warraich and Rana Abdul Sattar Khan for Petitioners.
Muqtadar Akhtar Shabbir for Respondent.
Date of hearing: 30th April, 2025.
JUDGMENT
CH. MUHAMMAD IQBAL, J.--Through this Civil Revision, the petitioners have challenged the validity of the judgment and decree dated 17.05.2014 passed by the learned Additional District Judge, Gujranwala who accepted the appeal of the respondent, set aside the judgment and decree dated 13.03.2010 passed by the learned Civil Judge, Gujranwala and decreed the suit for declaration of the respondent.
-
Brief facts of the case are that Ghulam Nabi was owner of land in three Mauzajat: Karak, Hydro Kallywala and Kotli Mango, Tehsil Noshehra Virkan, District Gujranwala fully described in the plaint. He had contracted two marriages: one with Mst. Sardaran Bibi and second with Mst. Nazar Begum. From his wedlock with Sardaran Sardaran Bibi, Muhammad Mansha' petitioner No.1 and Saleem Bibi plaintiff/respondent were born whereas petitioners Nos. 2 to 5 were born from Nazeer Begum. The propositus of the parties (Ghulam Nabi) died on 11.03.2006. When husband of Saleem Bibi contacted the concerned Revenue Official/Halqa Patwari for sanctioning of inheritance mutation of his deceased father in law, it transpired that through sale mutation No.215 dated 22.02.2006 land measuring 14 Kanal 17 Marla situated in Moza Kotli Mansu and sale mutation No.448 dated 22.02.2006 land measuring 83 Kanal 14 Marla situated in Moza Hardo Kalleywala have been executed by Muhammad Sharif (petitioner No.2/defendant No.2), r No.2/defendant No.2), heing general attorney of his father Ghulam Nabi, in favour of his other real brother Saifullah, petitioner No.3/defendant No.3 whereas deceased through gift mutation No.452 dated 24.04.2000 land measuring 192 Kanal transferred in favour of defendants. The respondent/plaintiff challenged the above said transactions through filing a suit for declaration and cancellation against the petitioners/defendants on the grounds. that her deceased father Ghulam Nabi was suffering from severe illness for 4/5 years prior to his death and he was not mentally stable and was not in a position to record any statement for transfer of the land. The petitioners/defendants filed contesting written statement. Out of the divergent pleadings of the parties, the trial Court framed following issues:
-
Whether the mutations Nos.215, 434, 448 and 780 are against law and facts, based on mala fide, have been passed with connivance of revenue authorities, void and ineffective qua the rights of plaintiff? OPD
-
Whether the plaintiff is entitled for decree for declaration along with consequential relief as prayed for? OPP
-
Whether power of attorney No.210 is bogus and is ineffective qua the rights of plaintiff? OPP
-
Whether the plaintiff has no cause of action? OPD
-
Whether the plaintiff has no cause of action? OPD
-
Whether suit is not maintainable due to mis-joinder of causes of action? OPD
-
Whether plaintiff has not come to the court with clean hands? OPID
4.3
-
Whether the suit is based on mala fide as such defendants are entitled to recover special costs under section 35-A, CPC? OPD
-
Relief.
And after recording evidence of the parties, dismissed the suit vide judgment and decree dated 13.03.2010. The respondent filed an appeal which was allowed by the appellate Court vide judgment and decree dated 17.05.2014 and hy setting aside the judgment and decree dated 13.03.2010 passed by the trial Court, the suit of the respondent/plaintiff was decreed. Hence, this Civil Revision.
-
Arguments heard. Record perused.
-
The controversy involved in this case is centered around both Issues Nos. 1 to 3 onus probandi whereof was upon the plaintiff. In order to prove the stance and dislodge the onus of the said issues, Saleem Bibi (P.W.1) deposed that her father's age at the time of death was about 100 years; that his health condition was very had; that he never executed any general power of attorney during his lifetime nor made any gift or sold his land. The respondent/plaintiff produced Amanat Ali (P.W.2) who fully corroborated her stance, Despite lengthy cross-examination, the stance of the P.Ws could not be shattered by the petitioners/defendants,
-
Conversely, Muhammad Sharif (D.W.1) deposed that his father appointed him as his general attorney through instrument of power of attorney Ex.P1; that he being general power of attorney transferred 17 Acre land in favour of Saifullah; that his father sold the property through mutation No.215. During cross-examination, he deposed that:
Farooq Ahmad (D.W.2) deposed during his cross-examination that:
2
Saifullah son of Ghulam Nabi (D. W.3) during his cross-examination deposed that at the time of execution of general power of attorney, Lumberdar was not present. Mansha son of Ghulam Nabi appeared as D. W. 4.
- The relationship between the parties is admitted. For ready reference, the pedigree table of Ghulam Nabi is reproduced as under
Ghulam 7. The respondent/plaintiff has challenged the validity of the the alleged general power of attorney (Exh.D.1) executed by Ghy Nabi, predecessor in-interest of the parties of the lis, in favour of Muhammad Sharif/petitioner No.2 as well as the transaction made by the said attorney and the gift mutation as well. The respondent/plaintiff by producing trustworthy, reliable oral as well as documentary evidence substantially proved her case as per law. At the same time, burden to prove the execution of alleged general power of attorney as well as valid incorporation of gift and sale mutations in question was shifted upon the petitioners/ defendants to prove the validity of the said testimonies. Reliance is placed on the cases titled as Khaliqdad Khan and others v. Mst. Zeenat Khatoon and others (2010 SCMR 1370), Peer Baksh through LRs and others v. Mst. Khanzadi and others (2016 SCMR 1417), Muhammad Nawaz and others v. Sakina Bibi and others hers (2020 (2020 SCMR SCMR 1021), 1021), Atta Atta Muhammad and others v. Mst. Munir Sultan (deceased) through her LRs and others (2021 SCMR 73), Syed Ahmad v. Ali Akbar and others (2021 SCMR 743) and Faqir Ali and others v. Sakina Bibi and others. (PLD 2022 SC 85).
-
The entire lis hinges upon the prove and validity of the power of attorney and the beneficiary of alleged power of attorney was required to prove the valid execution of Ex.D-1 by producing the Sub-Registrar who registered the said document but the said material witness was not produced and even the Patwari and Tehsildar who entered and sanctioned the alleged sale as well as gift mutations were also not produced as witnesses. The petitioners/defendants also did not produce any attesting witness of gift mutation. Thus, non-production of above said material witnesses is amounted to withholding of the best evidence and it would be legally presumed that had the said witnesses produced in the evidence, they would have deposed unfavourable against the petitioners/defendants as such presumption tion under Article 129 (g) of of Qanun-e- Qanun-e-Shahadat Order, 1984 clearly operates against them. Reliance is placed on the case of Sughran Bibi v. Mst. Aziz Begum and 4 others (1996 SCMR 137) and Jehangir v. Mst. Shams Sultana and others (2022 SCMR 309)
-
Perusal of alleged general power of attorney (Exh.D.1) shows that it bears only name Farooq Ahmad as marginal witness whereas under Article 17 of the Qanun-e-Shahadat Order, 1984, it is mandatory that such document should be attested by at least two witnesses and in case of any discord both the attesting witnesses shall give the testimony in the Court as required under Article 79 of the Ordinance ibid. Thus, the non-establishing of the second marginal witness on the instrument is blatant non compliance of the above mandatory provision of law which leads to conveniently held that the petitioners/defendants have failed to prove the valid execution of the said document as per law. Reliance is placed on Mst. Rasheeda Begum and others v. Muhammad Yousaf and others (2002 SCMR 1089), Hafiz Tassaduq Hussain v. Muhammad Din through LRs and others (PLD 2011 SC 241) and Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187).
-
Furthermore, as regard the stance of the petitioners/defendants that one witness namely, Haji Ilyas has passed away. The petitioners/defendants did not make any effort to prove the alleged general power of attorney through the mode prescribed under Article 80 of Qanun-e-Shahadat Order, 1984. Reliance in this regard is placed on cases cited as Sheikh Muhammad Munear v. Mst. Feezan (PLD 2021 SC 538) and Muhammad Ali v. Sohawa (deceased) through L.Rs. and others (2019 CLC 626).
-
Even otherwise, the alleged general power of attorney was based on fraud and misrepresentation as such any subsequent transaction made on the basis of the said document would have no validity which are devoid of creating any right and would have no sanctity in the eyes of law. In absence of any solid foundation, the superstructure so built shall automatically crumble down. Reliance is placed on the the case of Rehmatullah and others v. Saleh Khan and others (2007) d others (2007 SCMR 729). It is settled law that fraud fraud vitiates the most solemn proceedings and any edifice so raised on the basis of such fraudulent transaction, that stand automatically dismantled and any ill-gotten gain achieved by fraudster cannot be validated under any norms of laws. Reliance in this regard is placed on cases cited as Nawab Syed Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD) 1973 SC 236), Lahore Development Authority v. Firdous Steel Mills (Pvt.) Limited (2010 SCMR 1097) and Sindh Irrigation and Drainage Authority v. Government of Sindh and others (2022 SCMR 595).
-
Furthermore, Muhammad Sharif/petitioner/defendant, the alleged general attorney, is real brother of Saif Ullah and Muhammad Sharif transferred land in favour of his real brother while using general power of attorney (Exh.D.1) but no specific permission of the principal/Ghulam Nabi was taken in this regard whereas it is settled law that the attorney does not enjoy absolute power to sale/exchange/dispose of the property of his principal to his own close relative rather the exercise of such power is covenanted to obtain explicit and unequivocal permission from the principal to alienate the property to his blood relation/close relative hut in this case, this important ingredient is missing as such the alienation is patently illegal and against the settled principle of law. Reliance in this regard is placed on judgments titled as Jamil Akhtar and others v. Las Baba and others (PLD 2003 SC 494), Muhammad Ashraf and 2 others v. Muhammad Malik and 2 others (PLD 2008 SC 389), Mst. Naila Kausar and another v. Sardar Muhammad Bakhsh and others (2016 5CMR 1781) and Allah Bakhsh deceased through LRs and others v. Muhammad Riaz and others (PLD 2025 SC 63).
-
The trial court has failed to appreciate the legal and factual aspects of the case and dismissed the suit of the respondent/plaintiff whereas the appellate court, after discussing the facts as well as evidence of the parties, through a well-reasoned judgment and decree has rightly allowed the appeal of the respondent and decreed her suit as prayed for. It is well settled law that in the event of conflict of judgments, findings of appellate Court are to be preferred and respected, unless it is shown from the record that such findings are not supported by evidence. Reliance is placed on the cases reported as Muhammad Hafeez and another v. District Judge, Karachi East and another (2008 SCMR SCMR 398 398) and Rao Abdul Rehman (deceased) through legal heirs v. Muhammad Afzal (deceased) through legal heirs and others (2023 SCMR 815).
-
Resultantly, this Civil Revision being devoid of any merit is hereby dismissed. No order as to costs.
UN/M-160/L