Fayyaz Shakoor etc Vs Mst. Aziz Un Nisa etc

Judgment Sheet

IN THE PESHAWAR HIGH COURT, ABBOTTABAD

BENCH

JUDICIAL DEPARTMENT

Civil Revision No. 319-A/2018

JUDGMENT

Date of hearing...................09.01.2023.................................

Petitioners (Fayyaz Shakoor & 03 others) By Hafiz Muhammad Tayyab and Mr. Inamullah Khan Hoti, Advocates.

Respondents. (Mst. Aziz-un-Nisa & 09 others) By Mr. Sajid Mehmood, Advocate.

WIQAR AHMAD, J.- Petitioners No.1 to 3 were sons of Abdul Shakoor (late) while petitioner No.4 was his widow and respondent/defendant No.1 was his daughter.

Respondents No. 4 to 10, who were also defendants No.4 to 10 in the plaint had been vendees, claiming acquisition of title from defendant No.1 namely, Mst. Aziz-un-Nisa.

Petitioners have brought a suit before learned civil court for declaration to the effect that they have been owners of the property (described fully in heading of the plaint) and the registered power of attorney bearing No. 10 attested on 28.06.2006 at the office of Sub- Registrar Ghazi has been wrong, illegal, result of fraud and a fabricated document.

Besides, they have also claimed that their father Abdul Shakoor (late) had also been

suffering from Maraz-ul-Mauth at the relevant time and the gift as well as power of attorney has been liable to be declared as null and void on all scores. Subsequent mutation on the basis of said power of attorney, bearing No. 4477 attested on 18.07.2006 in the revenue estate of Mauza Miandheri Tehsil Ghazi District Haripur entered was also sought to be declared as illegal, ultra vires and ineffective upon rights of petitioners / plaintiffs. A prayer for grant of perpetual injunction as a consequential relief has also been asked for in the suit. In the alternative a prayer for possession and cancellation of the power of attorney as well as mutations No.

4477 and 4501 attested on 18.07.2006 and 20.12.2006 respectively had also been made in the plaint.

2.Abdul Shakoor (deceased then alive) who was predecessor of petitioners / plaintiffs as well as respondent No.1 had been owner of the property in dispute, admittedly.

Defendant No.2 namely, Liaqat Ali had claimed to have been authorized through a general power of attorney for disposing of the property in dispute and that on verbal

instructions of Abdul Shakoor (late) he had gifted the property in favour of his daughter i.e defendant No.1 (Mst. Aziz-un-Nisa) vide mutation No. 4477 attested on 18.07.2006 in the revenue estate of Mauza Miandheri Tehsil Ghazi District Haripur. Respondents No.4 to 10 are claiming to have purchased the property vide subsequent mutation No. 4501 attested on 20.12.2006 in the revenue estate of Mauza Miandheri Tehsil Ghazi District Haripur. Amongst the respondents / defendants, defendant No.2 and 4 to 10 have contested the suit while defendant No.1 has never turned up before the courts below and has been placed ex-parte. On conclusion of proceedings in case, the suit was dismissed by learned Civil Judge-II Ghazi vide judgment and decree dated 30.01.2018. Petitioners / plaintiffs then filed appeal before learned Additional District Judge Ghazi which was also dismissed vide judgment dated 29.06.2018. Against concurrent findings of two courts below, petitioners have invoked the revisional jurisdiction of this court.

3.I have heard arguments of learned counsel for the parties and gone through the record.

4.Perusal of record reveals that Abdul Shakoor (late) was admittedly owner in possession of the property in dispute.

Petitioners No.1 to 3 were his sons while petitioner No.4 was his widow. Their claim in respect of property in dispute was based on their right of inheritance. Contesting defendants No.4 to 10 in the case in hand have been claiming acquisition of title by way of purchase from defendant No.1 namely, Mst. Aziz-un-Nisa, who was also daughter of Abdul Shakoor (late). According to the defendants / respondents, Mst. Aziz-un-Nisa had acquired exclusive title in respect of the property in dispute on the basis of a gift mutation No. 4477 attested on 18.07.2006 in the revenue estate of Mauza Miandheri Tehsil Ghazi District Haripur, made in her favour orally by Abdul Shakoor (late) through defendant No.2 namely, Liaqat Ali (as attorney). The power of attorney challenged in the suit and relied upon by defendants / respondents was claimed to have been

executed by Abdul Shakoor (late) in favour of defendant No.2 namely, Liaqat Ali. This Liaqat Ali was brother of husband of defendant No.1 namely, Mst. Aziz-un-Nisa.

The power of attorney was produced in evidence as PW-2/1, which appears to be executed on a pre-printed proforma bearing Caption “Uniform Statutory Form (California Probate Code Section 4401)”. Signature and stamp of a Notary Public (State of California) is available on the power of attorney, which is also attested by Consulate General of Pakistan at Los Angeles. This power of attorney has also been verified by Foreign Office at Islamabad and subsequently registered at the office of Sub-Registrar Ghazi District Haripur. What is important to be noted in this document is that it contains a column mentioning special instructions. It has also been mentioned therein that in said space special instructions limiting or extending the powers granted to the agent should be mentioned. Neither in said space nor anywhere else this power of attorney had been carrying any special purpose for which same had been statedly executed. Nowhere

did it mention that said power of attorney had been executed for the purpose of completion of formalities of any gift made by predecessor of plaintiffs / petitioners. Nowhere can one gather an idea from perusal of power of attorney that it had been executed by said predecessor for the purpose of completion of gift in favour of his daughter i.e. respondent / defendant No.1. Beside this general power of attorney, there has been no evidence regarding the offer of gift made by the alleged donor. The power of attorney was though claimed by learned counsel representing respondents to be having the only purpose of such gift and the two courts below have drawn a presumption in this respect that power of attorney had been executed for effectuating the claimed transaction of gift, but such farfetched presumption cannot be drawn on the basis of power of attorney (even if its execution is proved) in matters of transfer of property through gift, in absence of any other evidence of declaration or offer by donor.

Hon’ble Supreme Court of Pakistan while giving its judgment in the case of “Mst.

Kulsoom Bibi & another Vs. Muhammad Arif

& others” reported as 2005 SCMR 135 has held that burden of proof for establishing a transaction of gift lies on beneficiary of the gift. It was also held in referred judgment that in case of gift mutation not only mutation but the underlying transaction was also to be proved by beneficiary thereof. No direct evidence of declaration of gift by the donor was available on record of the case. The claimed attorney holder namely Liaqat Ali, while deposing as DW-2, had just stated that the donor had telephonically instructed him to transfer the property in dispute in favour of his daughter i.e. respondent / defendant No.1.

This mere claim in absence of any corroboratory proof is not sufficient for discharging the onerous burden that had been lying on beneficiary of the gift i.e.

contesting defendants.

5.So far as delivery of possession is concerned, there is no evidence except bald statement of defendant No.2 that the donor had delivered physical possession of the property in dispute to the donees. Statement of DW-5 namely, Shaukat Ali, who is brother of defendant No.2 (Liaqat Ali), is also

important in this respect wherein he has clearly stated in 10th and 11th line of cross examination that possession of the property in dispute has still been lying with petitioners / plaintiffs which was being enjoyed by them through their attorney namely Rooh-ul-Amin.

It also shows that delivery of possession by the donor to donees had not been established as well, for which the burden was also lying on defendants before learned civil court.

6.Despite non-proof of offer as well as delivery of possession the impugned transaction of gift have been upheld by the two courts below. When learned counsel for the respondents was asked to defend such findings of the two courts below, he, inter alia, relied upon judgment of Hon’ble Supreme Court of Pakistan delivered in the case of “Khudadad Vs. Syed Ghazanfar Ali Shah alias S.Inaam Hussain & others” reported as 2022 SCMR 933 and contended that High Court while exercising powers under Section 115 CPC has got narrow and limited jurisdiction in those cases where concurrent findings are arrived at by the courts below.

There is no cavil to the proposition that when

the two courts below return concurrent findings on a question of fact, High Court does not normally intervene except in cases of jurisdictional error and illegalities of the nature which have material effect on result of the case or conclusion drawn therein are otherwise perverse and contrary to law. Said proposition has also been upheld by the Hon’ble Supreme Court of Pakistan in above referred judgment, but it has also been provided therein that in case an illegality, misreading or non-reading of evidence, having material effect on conclusion of a case, is present in judgments of courts below, then a revisional court may well interfere in said findings. Similarly, Hon’ble Supreme Court of Pakistan in the case of “Abdul Hameed & others Vs. Khalid & others” reported as 2007 SCMR 938, has also held that where concurrent findings of facts were arising from mis-reading or non-reading of evidence, then a revisional court may interfere in said findings. Further reliance in this respect may also be placed on the judgment of Hon’ble Supreme Court of Pakistan delivered in the case of “Abdul

Sattar Vs. Mst. Anar Bibi 7 others” reported as PLD 2007 SC 609.

7.Even in the narrower scope,

available to a revisional court in case of concurrent findings of courts below, it is not difficult to hold that the two courts below have upheld a transaction of gift despite failure of the beneficiary to prove its factum. Such judgments of the learned courts below have expressly been running against ratios of a large number of judgments of Hon’ble Supreme Court of Pakistan wherein it has been held that in case of gift the beneficiary was bound to prove the factum of offer and acceptance as well as delivery of possession.

For sack of ready reference, judgment in the case of “Faqir Ali & others Vs. Sakina Bibi & others” reported as PLD 2022 SC 85 may be referred.

8.Another aspect of the case was that gift in instant case has been made through attorney where attorney was having no specific authorization recorded through express words to said effect. Hon’ble Supreme Court of Pakistan while delivering its verdict in the case of “Mst. Shumal Begum

Vs. Mst. Gulzar Begum & 03 others” reported as 1994 SCMR 818 has held that love and affection being consideration of gift could not be expressed by any attorney on behalf of the donor and that such sentiments must be established to have come from the donor.

Relevant observations in this respect are also reproduced for ready reference;

“Love and affection cannot be expressed by any attorney on behalf of the donor. The sentiments which were the consideration for gift must be established to have come from the donor. Gifts are voluntary and gratuitous transfer from the donor to the donee. The essentials of these transactions are, the capacity of donor, intention of donor to make gift, complete delivery of the gifted property to the donee and acceptance of gift by donee. In order to establish a valid gift of the property by the donor in favour of the donee where gift is made through a person authorised by the donor, the intention of donor to make the gift must be established in clear terms. In such a case the authority given by the donor in favour of another person to make a gift of his property besides containing the power to make the

gift must also clearly specify the property and the name of the donee in the case. In the present case the gift made by attorney in favour of his wife on the basis of the power of attorney executed in his favour by father of the wife cannot b., upheld for two reasons. First, the power of attorney executed did not contain any specific provision authorising him to make a gift of his properties and; secondly, even if it is assumed that such power was given, there is no indication in the said document that the donor intended to make gift of all his properties in favour of the wife of attorney.”

Further reliance in this respect may also be placed on the judgment of Apex Court rendered in the case of “Fida Muhammad Vs.

Peer Muhammad Khan (deceased) through legal heirs & others” reported as PLD 1985 SC 341. In the case of “Mst. Bandi Vs.

Province of Punjab & others” reported as 2005 SCMR 1368, it has been laid down that in case of gift through attorney the power of attorney should specifically authorize attorney to make a gift of property in favour of a specified person. The basic transaction of gift impugned in case in hand was also not

sustainable, inter alia, for the reason that the power of attorney relied upon had neither specified the purpose, nor the person in whose favour the claimed gift has been made.

9.The learned civil court as well as learned appellate court below have also held suit of the plaintiffs / petitioners as non- maintainable and time barred while non- suiting the petitioners. So far as maintainability of the suit is concerned, the observations of learned appellate court in this respect is reproduced below for ready reference;

“6. The civil suit was filed by one Rooh-ul-Amin on behalf of Fiaz Shakoor etc. The plaint as well as the Wakalatnama has been signed by the so called attorney who has exhibited on the case file the power of attorney as Ex.PW-2/1. I have perused the original power of attorney, which has been placed on the case file as Ex.PW-2/1. The power of attorney which was allegedly executed on behalf of the plaintiffs / appellants was only executed for the purpose to sell, transfer and for this purpose it included incidental acts as required to make the sale / transfer

complete. It has not been granted for the purpose to challenge the gift mutation entered in favour of Aziz- un-Nisa and subsequent mutations. Rooh-ul-Amin had not been empowered or delegated with the powers to institute suit against the defendants / respondents. Thus, no suit has been filed by Fiaz Shakoor etc against the gift mutation and subsequent sale in favour of rest of the defendants / respondents. In such circumstances no weight can be given to the evidence which has been recorded by an incompetent person, having no authority to record the statement. In the circumstances, the gift mutation and subsequent sale mutations have not been challenged by the legal heirs of Abdul Shakoor.

7.The power of attorney if considered to have been executed for this purpose too, the power of attorney is inadmissible as it has not been verified by the foreign office of Pakistan and in this regard the defendants / respondents have thoroughly cross examined Rooh- ul-Amin, who has admitted in his cross examination that he had not verified the alleged power of attorney (Ex.PW-02/1) in Pakistan.”

10.Arguments of learned counsel for the respondents (regarding maintainability of the suit) has also been to the effect as mentioned in above reproduced paras rather the learned counsel read said paras again so as to highlight his points. A power of attorney has been executed by petitioners / plaintiffs in favour of Rooh-ul-Amin, who is also the person looking after their properties in Pakistan. All the petitioners / plaintiffs have been living in United States of America admittedly. The power of attorney has been brought in evidence as Ex.PW-2/1. Said power of attorney or the powers exercised thereunder have never been questioned by principals mentioned therein. The learned courts below instead of focusing on the challenged documents (whereupon

substantial property has been transferred) have focused on the unchallenged power of attorney executed by petitioners / plaintiffs in favour of their attorney. The focus has been so intense that it was ignored that the attorney has always been acting for the benefit of their principals. As stated earlier, this attorney has also been having physical

possession of the property in dispute on behalf of petitioners, who were Overseas Pakistanis. They have never questioned his capacity as their agent during long course of litigation. Nowhere could it be found that the agent had ever acted to the detriment of his principals. The learned appellate court has also, inter alia, held that the power of attorney has not been verified from Foreign Office at Pakistan by ignoring that said power of attorney had already been attested by Consulate General of Pakistan at Los Angeles and same was not required to be further verified by Foreign Office of Pakistan, being special power of attorney used for conducting litigation and not general power of attorney used for transfer of property. It is no doubt a practice of public and official departments at Pakistan that whenever a power of attorney is executed by someone from foreign, same is re-verified from the Foreign Office at Islamabad but for initiating a legal action and making a defence thereof, it is not requirement of law to re-verify a power of attorney from the Foreign Office of Pakistan particularly when it is not challenged

by the principal or any person claiming under him. Power of attorney was sufficient for the purpose of institution of suit and carrying further proceedings thereunder, even if specific recitals therein had not been mentioned. It was not used for transfer of any property and for the purpose of litigation for the benefit of the principals, general powers including ancillary powers thereto in respect of the property in dispute have rightly been utilized by the attorney.

11.So far as question of limitation is concerned, mentioning of certain dates are very important. Power of attorney in favour of respondent No.2 namely, Liaqat Ali, has been claimed to have been executed on behalf of Abdul Shakoor (late) at the State of California on 31st May 2006, which was registered at the office of Sub-Registrar Ghazi and mutation No. 4477 has been entered and attested at the instruction of attorney i.e. defendant No.2 in respect of gift transaction by Abdul Shakoor (late) in favour of defendant No.1 on 18.07.2006 before the revenue officer Mauza Miandheri Tehsil Ghazi District Haripur. Abdul Shakoor (late) the alleged donor had

reportedly died in United States of America on 23.07.2006. The property in dispute was further shown to have been alienated by respondent No.1 in favour of respondents No.4 to 10 vide mutation No. 4501 attested on 20.12.2006 at the revenue estate of Mauza Miandheri Tehsil Ghazi District Haripur (Ex.PW-1/5).

12.First suit for challenging the alleged gift deed and subsequent mutations had been filed by petitioners on 19.12.2009, which was dismissed as withdrawn with permission to file a fresh suit on 21.11.2012. Subsequent suit was brought on 10.12.2012. The courts below while taking an assertion in the statement of attorney for petitioners (PW-2) that he had informed plaintiffs about attestation of mutation, had held the second suit to be time barred. The period for limitation for filing a declaratory suit is six (06) years under Article 120 of Schedule to Limitation Act 1908. The relevant part of statement of attorney regarding knowledge of plaintiffs is reproduced for ready reference;

"ميں ان پڑھ ہوں اس لئے نہيں بتا سکتا ہوں کہ مجھے مقدمہ کی پيروی کا اختيار کس فقره ميں ديا کےEx PW2/1 گيا ہے۔ مجھے يہ علم نہ ہے کہ تحت مجھے مقدمہ ميں شہادت کا اختيار حاصل ہے

يا نہيں۔ يہ درست ہے کہ جائيداد متدعويہ سال ميں عزيز النساء شکور کے نام پر ہو گئی2006 تھی جوکہ دھوکہ فراڈ اور غلط بيانی کر کے کی گئی تھی۔ عزيزالنساء شکور بعد از ھبہ پاکستان آئی تھی۔ مجھے عزيز النساء کے خاوند کے بھائيوں کے نام نہيں آتے ہيں۔ فياض شکور کو جب پتہ چال کہ عزيز النساء وغيره نے فراڈ اور دھوکہ دہی کے ذريعے جائيداد اپنے نام کر ليا ہے تو وه مقدمہ دائر کر نے کے لئے آ گيا۔ بوقت اندراج انتقال فياض شکور کو علم ہو گيا تھا جس کو ميں نے اطالع دی دنوں کے بعد پاکستان آيا تھا۔15 يا10 تھی جو کہ "فياض شکور رشتہ ميں ميرا بہنوئی ہے۔ 13. It has no doubt been mentioned that he had informed Fayyaz Shakoor regarding the entry and attestation of mutation and that he had come to Pakistan about 10 to 15 days thereafter, but specific date on which one of the plaintiffs / petitioners namely, Fayyaz Shakoor had got knowledge about fraudulent mutation has not been mentioned. Besides Fayyaz Shakoor, there have also been other plaintiffs i.e. petitioners No.2 to 4 about whose knowledge nothing had come in evidence. Said petitioners / plaintiffs have also been deprived from valuable property through purported gift deed and the subsequent transactions. The speed with which power of attorney was executed in United States then registered in Pakistan and the mutation effected thereon, all in last two months of life of the donor, speaks a lot about fraud and collusion which can validly be

inferred therefrom. Such collusive transactions in respect of properties of Overseas Pakistanis cannot be allowed to be sanctified on the plea of limitation. Hon’ble Supreme Court of Pakistan while giving its judgment in Faqir Ali’s case (supra) reported as PLD 2022 SC 85 has held that where fraud and collusion were alleged and established the question of limitation could not help beneficiary of such fraud and collusions in retaining the benefits. Relevant observations given in this respect are also reproduced for ready reference;

“We find that the lower fora misread the evidence and drew the wrong conclusions in recording findings that a gift had been proved. We note that the gift mutations were attested in the year 1985 onwards and the suit for their cancellation was filed in 2004. It is on this basis that it has been argued that the suit was barred by time. In view of the fact that Respondents Nos.1 and 2 had challenged the gift mutations on the ground of fraud and collusion, we do not find any force in the contention of learned Advocate Supreme Court for the

Appellants that the suit was barred by time. It is settled law that where fraud and collusion are alleged and established, the question of limitation does not and cannot help the beneficiary of such fraud and collusion.”

14.In the case in hand the predecessor had died on 23.07.2006 while the subsequent suit has been brought on 10.12.2012 and it is only question of 5 / 6 months of limitation but for reasons mentioned above said limitation of 5 / 6 months would not come in the way of petitioners / plaintiffs to have their inherited property, back in their names.

15.An ancillary question would be relating to giving benefit of Section 41 of Transfer of Property Act, 1882 to respondents No.4 to 10. This court has considered said aspect of the case but has come to the conclusion that the bonafide required for giving benefits thereof have not been established by them. Besides, they could not display that they had taken due care and caution at the time of sale of the property in dispute. The power of attorney, on the basis of which mutation No. 4477 had been entered

and attested was not at all a reliable document as discussed above. Possession of the property was also with agent of the plaintiffs / petitioners as held earlier. In such circumstances, due care and caution as required for getting benefit of Section 41 of the Transfer of Property Act 1882 have not been forthcoming, therefore, such benefit could not be extended to defendants / respondents No.4 to 10. They shall, however, be at liberty to institute any legal proceedings against defendant No.1 for recovery of the amount or transfer of her share in the legacy in the property in dispute but the impugned mutations, being superstructure, created on wrong foundations could not be sustained as the basic transfer is not sustainable.

16.In light of what has been discussed above and on allowing the instant civil revision, judgment and decree dated 30.01.2018 of learned civil court as well as judgment and decree dated 29.06.2018 of learned Additional District Judge Ghazi are set-aside and resultantly suit of the plaintiffs / petitioners filed before learned civil court in

the case in hand stands decreed as prayed for.

Heard & Announced On:

Signed On:

JUDGE

/*Saif. CS*/