Saturday, 19 March 2016

Sale on the basis of Irrevocable Power of Attorney

PLJ 2001 SC 291
[Appellate Jurisdiction]
Present: munir A. sheikh and mian muhammad ajmal, JJ. ABDUL RAHIM-Petitioner
MUKHTAR AHMAD and 6 others-Respondents C.P.L.A. No. 1084-L/2000, decided on 6.11.2000.
(On appeal from the judgment of the Lahore High Court, Multan Bench Multan dated 20.3.2000 passed in C.R. No. 430-D/86)
Transfer of Property Act, 1882 (IV of 1882)--
—S. 54-Constitution of Pakistan (1973), Art. 185(3)--Sale executed by respondent (attorney) on basis of irrevocable power of attorney-­  Petitioners suit challenging validity of power of attorney executed by him in favour of respondent and sale executed by such respondent on basis of the same were decreed by trial Court but such finding was reversed by Appellate Court as also by the High Court-Validity-Power of attorney executed "by petitioner in consideration of Rs. 20,000/- was irrevocable which he admittedly had received from respondent-Sale-deed executed by Attorney in favour of vendees was for consideration of specified amount which showed that there was no substantial difference between the consider of power of attorney and that of sale-deeds-Concurrent findings of two Courts below being based on evidence on record did not suffer from misreading or non-reading of evidence-Evidence of a witness could not be brushed aside only because of his relationship, if otherwise the same was disinterested and credible-Leave to appeal was refused in circumstances.          [Pp. 292 & 293] A, B
1994 SCMR 818; 1997 SCMR 1811. Mr. M. Shamshir Iqbal Chughtai, ASC for Petitioner. Ch. Attaullah, ASC for Respondents Nos. 1 to 6. Date of hearing: 6.11.2000.
Munir A. Sheikh, J.-This petition for leave to appeal is directed against the judgment of the Lahore High Court, Multan Bench, Multan dated 20.3.20000 through which Civil Revision No. 436-D/86 filed by the petitioner has been dismissed.

2.   The suit filed by the petitioner challenging the validity of the power of attorney executed by him in favour of Mukhtar Ahmad Respondent No. 1 and also the sale executed by Respondent No. 1 in pursuance thereof in favour of Respondents Nos. 2 to 6, was decreed through judgment dated 31.3.1982 by the trial Court In appeal filed by the respondents, the findings recorded by the trial Court, on reappraisal of evidence, were reversed by the First Appellate Court through judgment dated 6.5.1986 and it was held that irrecovable general power of attorney was given by the petitioner to Respondent No. 1 in lieu of consideration of Rs. 20,000/-. The petitioner filed Civil Revision No. 436-D/86 before the Lahore High Court, Multan Bench, Multan, which has been dismissed through impugned judgment dated 20.3.2000, against which leave to appeal has been sought.
3.          The respondent in order to discharge onus to prove the power of attorney has not only produced the receipt and its marginal witness but has  also examined expert witness who reported that the disputed thumb impressions on the receipt and the power of attorney tally with his specimen thumb impressions obtained by the Court The evidence of expert witness is corroborated by Mukhtar Ahmad respondent.
4.          Learned counsel for the petitioner submits that Faiz Ali DW-2 is close relative of Mukhtar Ahmad respondent, therefore, his evidence could not be relied upon. Learned counsel relied upon Shumal Begum vs. Gulzar Begum (1994 SCMR 818) and Faqir Muhammad vs. Pir Muhammad (1997 SCMR1811).
5.          We are afraid, the argument of the learned counsel has no merit as the evidence of a witness cannot be brushed aside only because of bis relationship if otherwise it is disinterested and1 credible. In the first quoted judgment, it was held that in case of gift, it was necessary that the decision should be made by the principal as to in whose favour the same was to be made and the attorney could not exercise power in favour of person of his own choice. The principle laid down in this judgment does not apply to the facts and circumstances of the case in hand as the attorney did not execute  any gift without the decision of the principal in this case. The second judgment is on the question that in case the attorney wants to sell the land to any person closely related to him, he shall have to consult the principal.  This principle, in our view, would also not be applied where the power of attorney was executed in lieu of consideration with a clear understanding that the land had been sold to the attorney. The sale-deeds executed by the   attorney to the two vendees are for a consideration of Rs. 33,000/- and as there is no substantial difference between the consideration of the power of attorney that of the sale-deeds, for, it appears that the petitioner must be in the need of money and had received the payment from the attorney, as such, the power of attorney in the present case was irrevocable having been executed after receipt of Rs. 20,000/- as consideration, therefore, the judgments referred by the learned counsel are not applicable to the facts and  circumstances of the instant case.

6. For the foregoing reasons, the concurrent findings of two immediate Courts below on a pure question of fact have not been shown to have suffered from mis-reading or non-reading of any material piece of evidence. This petition, therefore, has no merit, which is dismissed and leave refused.
(A.A. J.S.)                                                                              Leave refused.

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