Can you sell property with power of attorney in Pakistan | Power of attorney for property registration in Pakistan
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| Copy of power of attorney for Property registration in pakistan. |
صغرہ بی بی ۔کرم بی بی اور نذر بی بی نے پاور آف اٹارنی دیا فتح دین کو فتح دین نے بیانہ لے لیا ۔ عورتوں نے پاور آف اٹارنی ختم کروا دی اور موقف اختیار کیا کہ ہم نے پاور آف اٹارنی بھائی کو زمین کی دیکھ بھال کرنے کے لیے دی تھی اور ھم کو جب دھوکا کا پتہ چلا تو ہم نے بیانہ سے پہلے اٹارنی ختم کر دی تھی۔
تعمیل مختص کا کیس فائل کیا گیا کہ مختار عام نے بارہ لاکھ میں زمین بیچی اور اب ھمارے نام نھیں کروا رھے۔جبکہ گیارہ لاکھ سے زیادہ بیانہ دیا تھا۔
نیچے ٹرایل کورٹ نے کیس ڈگری کر دیا اور ڈسٹرکٹ کورٹ نے فیصلہ برقرار رکھا۔
ھائی کورٹ نے قرار دیا کہ پاور آف اٹارنی میں ایگریمنٹ ٹو سیل کا اختیار نہیں تھا۔
اورایگریمنٹ ٹو سیل کا ایک گواہ کورٹ میں پیش نہ کیا گیا جس سے ایگریمنٹ ٹو سیل ثابت نہیں ھوتا۔اور دوسرا یہ کہ پردہ نشین عورتوں سے ایگریمنٹ ثابت کرنا اس پارٹی کی ذمہ داری ھے جو معاہدہ سے فائدہ اٹھاتی ھے۔ پاور أف اٹارنی میں گواہ قریبی رشتہ دارنہیں بنائے گئےاور نہ ھی دوسری ذمہ داریاں پوری کی گئیں۔
ھائی کورٹ نے ڈگری ختم کر دی۔
Case law property registration through attorney.
Form No: HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT, LAHORE.
JUDICIAL DEPARTMENT
Case No: C.R. No.2401 of 2014.
Sughran Bibi, etc.
vs.
Muhammad Nawaz, etc.
S.No. of
order/
proceeding
Date of order/
Proceeding
Order with signature of Judge, and that of parties or counsel,
where necessary
30.10.2023.
M/s Saqib Haroon Chishti and Mahad Abdul Ghafoor,
Advocate for the applicants-petitioners.
Mr. Jahanzaib Khan, Advocate for the respondents.
C.M. No.1-C of 2023.
This is an application for restoration of the titled civil
revision, which was dismissed on account of non-prosecution
by this Court vide order dated 05.04.2023.
2.
With concurrence of learned counsel for the parties,
the instant application is allowed and the order dated
05.04.2023 passed by this Court is recalled and civil revision
is restored to its original number. Office is directed to fix the
main civil revision today.
Main Case.
Respondents No.1 & 2/plaintiffs namely Muhammad
Nawaz and Tahir Mehmood filed a suit for specific
performance of agreement to sell, declaration and permanent
injunction as a consequential relief against Fateh Din,
Sughran Bibi, Karam Bibi and Nazar Bibi before the learned
Senior Civil Judge, Gujranwala on 14.06.2000. The case of
Muhammad Nawaz, etc. was to the effect that the defendants
C.R. No.2401 of 2014. 2
No.2 to 4 in the suit entered into an agreement to sell with
them on 27.10.1999 through Fateh Din, the defendant No.1
as their general attorney dated 13.10.1992 with regards to the
land measuring 38 kanal 17 marlas situated in Khewat
No.12, according to register Haq Daran-e-Zamin for the year
1987-88 out of their total entitlement of 52 Kanal 15 Marlas
for a total consideration at Rs.12,14,062/- and received an
amount of Rs.11,00,000/- as earnest money. The remaining
consideration of Rs.1,14,062/- was to be paid on 13.06.2000.
On the stated failure of the defendants in the suit, the
plaintiffs were left with no other option but to knock the door
of the Court through the said suit.
2.
The defendant No.1 i.e. Fateh Din filed a consenting
written statement, whereas defendants No.2 to 4/plaintiffs
through their written statement denied the stance of the
plaintiffs on legal as well as factual grounds. The stance put
forward by the defendants No.2 to 4 was that they at the
relevant time trusted defendant No.1 i.e. their real brother but
on attaining knowledge of malafide of their brother who was
statedly collusive with the plaintiffs, they got the general
power of attorney dated 13.10.1992 cancelled on 19.04.2000.
In addition to this, they denied the agreement to sell dated
27.10.1999 while submitting that it was prepared after
cancellation of the general power of attorney
C.R. No.2401 of 2014. 3
3.
Out of the divergent pleadings of the parties, learned
trial court framed following necessary issues:-
ISSUES
1. Whether the defendants No.2 to 4 through
their duly and validly constituted general
attorney i.e. defendant No.1, entered into an
agreement to sell of the suit property,
received part of the consideration, delivered
possession of suit land and accordingly
executed an agreement to sell dated 13-06-
2000? OPP.
2. Whether the suit is collusive between the
plaintiffs and defendant No.1? OPD 2 to 4.
3. Whether the defendant No.1 had no lawful
authority to execute any agreement on behalf
of defendants No.2 to 4? OPD 2 to 4? OPD.
4. Whether the plaintiffs have no cause of
actions? OPD 2 to 4.
5. Whether the plaintiffs are entitled to decree
for specific performance of this agreement, if
so at what terms and conditions? OPP.
6. Relief.
After framing of issues, both the parties produced their
respective evidence and on completion of the same, suit was
decreed by way of impugned judgment dated 09.06.2011
passed by the learned Trial Court. Being aggrieved, the
defendants/petitioners preferred an appeal but remained
unsuccessful vide impugned judgment and decree dated
13.06.2014 passed by the learned Additional District Judge,
Gujranwala, hence this civil revision.
4.
Heard.
C.R. No.2401 of 2014. 5
to consider legal insinuations of sale and agreement to sell,
which have been defined in section 54 of the Transfer of
Property Act, 1882 and section 2(h) of the Contract Act,
1872, respectively, which are reproduced as under:-
‘54. “Sale Defined”. “Sale” is a transfer of
ownership in exchange for a price paid or
promised or part paid and part promised.
Sale how made. Such transfer, in the case
of tangible immovable property of the value of
one hundred rupees and upwards, or in the case
of a reversion or other, intangible thing, can be
made only by a registered instrument.
In case of tangible immovable property,
of a value of less than one hundred rupees, such
transfer may be made either by a registered
instrument or by delivery of the property.
Delivery of tangible immovable property
takes place when the seller places the buyer, or
such person as he directs in possession of the
property.
Contract for sale. A contract for the sale
of immovable property is a contract that a sale
of such property shall take place on such terms
settled between the parties.’
The definition of “Contract” under the Contract Act,
1872 as provided under section 2(h) is that an
agreement enforceable by law is a contract.
When the recitals of the alleged general power of attorney is
gone through only powers of sale have been conferred upon
the general attorney namely Fateh Din and the same does not
give any power to enter into an agreement to sell. As per my
C.R. No.2401 of 2014. 6
understanding, the powers to sell the property does not
include the power to enter into an agreement to sell as in the
powers of the sale the consideration amount is received and
property is sold out; however, the agreement to sell binds
both the parties in accordance with the terms of agreement to
perform their part in future. Therefore, when a specific power
of entering into an agreement to sell of the suit property was
not given to Fateh Din, attorney, he was not competent to
enter into any kind of agreement to sell on the behalf of the
petitioners/ principals/ owners of the disputed property,
because in case of ‘sale’ a transaction is completed, rights
and liabilities of the parties are determined through an
instrument of sale and with the registration and completion
of the same, no further liability of parties remains against
each other; as against this, in case of agreement to sell both
the parties are bound to perform the terms and conditions of
agreement to sell in future, thus, until and unless an attorney
is given and bestowed with specific powers to bind the
principal for performance of terms of the agreement in
future, the attorney cannot bind the principal and enter into
agreement to sell of property owned by the principal(s). In
such scenario, the alleged agreement to sell, sought to be
enforced through suit for specific performance in the instant
case, is bad on the basis of having no powers with the
attorney to enter into agreement to sell of the suit property,
C.R. No.2401 of 2014. 7
owned by the present petitioners. In this regard, reliance is
placed on judgments, pen down, by the Supreme Court of
Pakistan, reported as Fida Muhammad v. Pir Muhammad
Khan (Deceased) through Legal Heirs and others (PLD
1985 Supreme Court 341) and Malik Riaz Ahmed and
others v. Mian Inayat Ullah and others (1992 SCMR 1488)
wherein it has been held that:-
‘It is wrong to assume that every
‘general’ power of attorney on account of
the said description means and includes
the power to alienate/dispose of property
of the principal. In order to achieve that
object it must contain a clear separate
clause devoted to the said object. The
draftsman must pay attention to such a
clause if intended to be included in the
power of attorney with a view to avoid
any uncertainty or vagueness. Implied
authority to alienate property, would not
be readily deducible from words spoken
or written which do not clearly convey the
principal’s knowledge, intention and
consent about the same. The Courts have
to be vigilant particularly when the
allegation by the principal is of fraud and
or misrepresentation.’
Further reliance can safely be placed on judgments reported
as Dost Muhammad v. Member, Board of Revenue and
others (2001 MLD 2019) and Yar Baz Khan v. Lal Nawaz
(PLD 1996 Peshawar 86), wherein it has been held that:-
‘Before parting with this case, I would
like to emphasize that an attorney derives
authority from the principal with regard
to his property either for its management
or alienation for a specific purpose. The
C.R. No.2401 of 2014. 8
agent has to act within the framework of
the deed which is depository of the
intention, rights, liability and authority of
parties and cannot travel beyond its scope
and purview of its recitals. By re-passing
confidence in agent, he is expected in law
to act for the benefit of his principal. His
conduct and performance of duty enjoined
upon him is subject to certain commotions
and limitations.’
In another judgment reported as HAQ NAWAZ and others v.
BANARAS and others (2022 SCMR 1068) on the similar
preposition, the Hon’ble Supreme Court of Pakistan has
invariably held:-
“5. Mst. Channan Jan's stance
throughout has been that she appointed
Ghulam Rasool, who was her tenant in
occupation, as her attorney, merely to
manage the affairs of her land and for
nothing more, and therefore, given the
status of the lady, it was imperative for
the appellants Nos.1 and 2 to have
demonstrated and proved that at the time
of the execution of the power of attorney,
she was fully conscious of the fact that the
document also contained power to sell
and that the entire document was read out
and explained to her fully and truly, and
further that she executed it under an
independent advice. They had also to
prove that the lady was fully aware and
conscious of the consequences and
implications of executing the said
document. However neither did they
prove, nor even pleaded any of it. It
therefore cannot be held that Ghulam
Rasool, was in fact authorized by Mst.
Channan Jan to sell the suit land. The
impugned sale/transfer was thus liable to
be set-aside on this ground alone. In any
view of the matter, since admittedly, the
power of attorney did not do not
specifically authorized Ghulam Rasool, to
convey the property to his sons, or for
C.R. No.2401 of 2014. 9
that matter to any of his near ones, nor
has he been able to prove that, he was
otherwise so authorized. The impugned
sale mutation was liable to be cancelled
as rightly done by the revenue hierarchy.
Since long it is well established that an
attorney cannot lawfully make transfer of
a property under agency in his own name,
or for his benefit, or in favour of his
associates, without explicit consent of the
principal, and in the event he does so, the
principal, under the mandate of section
215 of the Contract Act, has a right to
repudiate such transaction. Mst. Channan
Jan having disowned the subject
transaction, the same was rightly
annulled as noted above.”
In view of the above, when it is established on record from
the recitals and contents of the purported general power of
attorney Ex.P-2 that no power was given to Fateh Din by the
petitioners to enter into agreement to sell germane to their
property with any one, Fateh Din was not authorized to do
such an act i.e. agreement to sell in question on behalf of the
petitioners/principals, therefore, the purported agreement to
sell is bad in the eyes of law and is not enforceable.
Moreover, revocation of purported general power of attorney
by the petitioners makes it vivid that they did not confer any
power of disposing of the disputed property in the manner as
has been done by defendant No.1 namely Fateh Din. When
the very basis of the suit in hand is proved to be nonenforceable, the suit cannot succeed even if the evidence
supports the stance of the respondents No.2 to 4. However, in
the present case, no cogent and confidence inspiring evidence
C.R. No.2401 of 2014. 10
has been brought on record showing the receipt of sale
consideration by the present petitioners. Moreover, the
second marginal witness of the alleged agreement to sell
namely Muhammad Nasir son of Muhammad Ali was not
produced in the witness box, meaning thereby the said
document has also not been proved as per requirement of
Article 79 of the Qanun-e-Shahadat Order, 1984. Though an
argument has been advanced that the scribe of the document
is also witness of receipt of the consideration amount but the
same has no force because the scribe of the document cannot
be equated with marginal witness. In this regard reliance is
placed on Hafiz Tassaduq Hussain Vs. Muhammad Din
through Legal Heirs and others (PLD 2011 Supreme Court
241). Non-production of the second marginal witness is also
fatal to the respondents case because he was an independent
witness, whereas the other marginal witness is father of the
respondents, who has status of an interested witness;
therefore, withholding of the best available evidence without
any incapacity, attracts the adverse presumption as per
Article 129(g) of Qanun-e-Shahadat Order, 1984 that had the
said witness been produced, he would not have supported the
stance of the respondents/plaintiffs.
6.
It will not be out of place to mention here that the
petitioners/ defendants No.2 to 4 are admittedly illiterate and
Parda Nashin ladies and Courts of law in such cases ought to
C.R. No.2401 of 2014. 11
be very careful in deciding the controversy as special caution
has been given in law. In respect of a transaction germane to
property with a pardanasheen, village household and rustic
ladies, the Apex Court of the country in a judgment reported
as Phul Peer Shah v. Hafeez Fatima (2016 SCMR 1225) has
given the parameters and conditions to be fulfilled in a
transparent manner and held that:-
‘In case of a (property) transaction with an old,
illiterate/rustic village ‘Pardanasheen’ lady the
following mandatory conditions should be
complied with and fulfilled in a transparent
manner and through evidence of a high degree
so as to prove the transaction as legitimate and
dispel all suspicions and doubts surrounding it:-
i. That the lady was fully cognizant
and was aware of the nature of the
transaction and its probable
consequences;
ii. That she had independent advice
from a reliable source/person of
trust to fully understand the nature
of the transaction;
iii. That witnesses to the transaction
were such, who were close relatives
or fully acquainted with the lady
and had no conflict of interest with
her;
iv. That the sale consideration was
duly paid and received by the lady
in the same manner; and
v. That the very nature of transaction
was explained to her in the
language she understood fully and
she was apprised of the contents of
the deed/ receipt, as the case may
be.’
Moreover, this Court has held that old and illiterate ladies are
entitled to the same protection which is available to the Parda
observing lady under the law; reliance is placed on
C.R. No.2401 of 2014. 12
Muhammad Afzal v. Muhammad Zaman (PLD 2012 Lahore
125). Furthermore, in Ghulam Muhammad v. Zahoran Bibi
and others (2021 SCMR 19), the Apex Court of country has
held:-
‘It is settled law that the beneficiary of
any transaction involving parda nasheen
and illiterate women has to prove that it
was executed with free consent and will of
the lady, she was aware of the meaning,
scope and implications of the document
that she was executing. She was made to
understand the implications and
consequences of the same and had
independent and objective advice either of
a lawyer or a male member of her
immediate family available to her.’
In judgment reported as Muhammad Naeem Khan and
another v. Muqadas Khan (decd) through L.Rs. and another
(PLD 2022 Supreme Court 99), the Apex Court of the
country has invariably held:-
‘If any such plea is taken then it is a timehonored parameter that in case of a
document executed by a pardanashin
lady, the burden of proof is on the party
who depends on such a deed to persuade
and convince that Court that it has been
rad over and explicated to her and she
had not only understood it but also
received independent and disinterested
advice in the matter. The aforesaid
parameter and benchmark is equally
applicable to an illiterate and ignorant
woman who may not be a pardanashin
lady. If authenticity or trueness of a
transaction entered into by a pardanashin
lady is disputed or claimed to have been
secured on the basis of fraud or
misrepresentation, then onus would lie on
the beneficiary of the transaction to prove
his good faith and the court has to
C.R. No.2401 of 2014. 13
consider whether it was done with
freewill or under duress and has to assess
further for an affirmative proof whether
the said document was read over to the
pardanashin or illiterate lady in her
native language for her proper
understanding.’
Keeping in view the ratio of the above said judgments, when
the facts of the case in hand are considered, it appears that
none of the above said parameters have been met with.
7.
In view of the above, it is concluded that the learned
Courts below have failed to consider each and every aspect
of the case and have failed to construe law on the subject in a
judicious manner while passing the impugned judgments and
decrees, which cannot be allowed to hold field further. This
Court is vested with ample power and jurisdiction to reverse
and revise the concurrent judgments and decrees, when the
same suffer material illegalities and irregularities as well as
result of misreading and non-reading of evidence as has been
held in judgments reported as Nazim-ud-Din and others v.
Sheikh Zia-ul-Qamar and others (2016 SCMR 24), Mandi
Hassan alias Mehdi Hussain and another v. Muhammad Arif
(PLD 2015 Supreme Court 137), Iqbal Ahmed v. Managing
Director Provincial Urban Development Board, N.-W.F.P.
Peshawar and others (2015 SCMR 799), Sultan Muhammad
and another v. Muhammad Qasim and others (2010 SCMR
1630), Ghulam Muhammad and 3 others v. Ghulam Ali
C.R. No.2401 of 2014. 14
(2004 SCMR 1001) and Habib Khan and others v. Mst.
Bakhtmina and others (2004 SCMR 1668).
8.
For the foregoing reasons, the revision petition in hand
is allowed, impugned judgments and decrees are set aside,
consequent whereof, the suit instituted by the respondents
No.1 & 2 stands dismissed. No order as to the costs.
(SHAHID BILAL HASSAN)
JUDGE
Approved for reporting.
JUDGE
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