2016 C L C 533
[Balochistan]
Before Muhammad Noor Meskanzai, C.J.
RASHIDA ----Petitioner
Versus
GHOUS -UD-DIN and 8 others ----Respondents
Civil Revision No.197 of 2013, decided on 30th October, 2015.
(a) Islamic Law ---
----Gift---Ingredients ---Donor, an illiterate lady ---Attorney of donor gifted share of sister in
favour of brother during pendency of suit for declaration, partition, possession, injunction etc.
and preliminary decree was passed ---Contention of plaintiff w as that her counsel had not
properly assisted her ---Validity ---Impugned gift deed executed by the attorney did not have
prerequisites and essentials of a gift ---Neither there was offer of gift by the donor nor acceptance
of the same by the donee and posses sion had also not been delivered to the donee ---Gift made by
the attorney was also beyond the powers conferred upon the attorney ---Specific clause of
conferment of power making gift by the attorney must be mentioned in the power of attorney ---
No such power was ever conferred upon the attorney in the present case ---Impugned
gift/compromise deed was frivolous, fictitious, fabricated, unauthorized and an illegal document -
--Preliminary decree passed by the Trial Court had no legal weight in circumstances ---Plaintiff
was entitled for her legal share in the suit property ---Impugned preliminary order/decree passed
by the Trial Court was set aside and suit was decreed ---Collector (Revenue) was directed to
distribute the property of deceased to all the share holders including the plaintiff in accordance
with shari shares ---Revision was allowed in circumstances.
2005 SCMR 1368; 2006 CLC 1893; PLD 1990 SC 1; PLD 2010 SC 582; PLD 2005 SC
705; and PLD 1996 SCR 193 ref.
Mst. Shumal Begum v. Mst. Gulzar Begum and 3 ot hers 1994 SCMR 818; Mst. Bandi v.
Province of Punjab and others 2005'SCMR 1368 and Mst. Parsan Bibi and another v. Mst. Razia
Bibi and 10 others 2006 CLC 1893 rel.
(b) Islamic Law ---
----Inheritance ---Property would devolve upon the legal heirs without any intervention of court
and clergy the moment propositus died.
Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1 and Mst. Suban
v. Allah Ditta and others 2007 SCMR 635 rel.
(c) Civil Procedure Code (V of 1908) ---
----S. 115---Preliminary consent decree ---Revision without filing of appeal ---Competence ---
Consent decree was not appealable and non -filing of appeal against the said preliminary decree
was no bar for filing revision petition.
1989 SCMR 1826; PLD 1980 SC 45; A IR 1974 SC 1069 and Registrar, High Court of
Balochistan v. Abdul Majeed and 3 others PLD 2013 Bal. 26 rel.
(d) Civil Procedure Code (V of 1908) ---
----S. 115 ---Revisional jurisdiction of High Court ---Scope ---Revisional powers were supervisory
in natur e and matter would remain between the High Court and court subordinate to it ---Where
an order/judgment suffered from inherent jurisdictional defect or was void and no appeal had
been preferred even then High Court could exercise revisional jurisdiction ---Non-mentioning of
date of decree would not affect revisional jurisdiction of High Court.
N.W.F.P. Govt. v. Abdul Ghafoor Khan PLD 1993 SC 418 and Ghulam Hussain and
others v. Faiz Muhammad and others PLD 1991 SC 218 rel.
(e) Power of attorney ---
----Alienation of property ---Gift---Scope ---Power of attorney by its description does not include
the power to make gift, alienate or dispose of the property of the principal, unless specific and
exhaustive clause was mentioned in it.
Mujeeb Ahmed Hashmi, Kh ushal Khan Kasi and Gul Hassan Tareen Amicus Curie for
Petitioner.
Malik Azmatullah and Ghaus -ud-Din for Respondents.
Date of hearing: 18th September, 2015.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, C.J. --- This revision petition was admitted to
regular hearing vide order dated 19th June, 2014 which reads as under:
"Learned counsel for the petitioner inter alia contended that the Courts below have
misread and mis -appreciated the evidence available on record. He further states that the
alleged compromis e deed dated 04.02.2010 has neither been produced nor proved
through the marginal witnesses in accordance with the provisions of Qanun -e-Shahadat
Order, 1984. Contention so raised needs consideration.
Admit. Notice.
Adjourned to a date in office."
2. The facts, in brief, are that the petitioner/plaintiff No.1 and her sister instituted a suit for
declaration, partition, possession, injunction, cancellation/correction of mutation entries and
mesne profit against the respondents in the Court of Civil Jud ge-III, Quetta. The main grievance
of the petitioner is that the petitioner and respondents are the legal heirs of late Jamal -ud-Din,
who left the property bearing Khewat No.33, Khatooni Nos.54 to 59, comprising of 9 Qitas,
measuring 7596 square feet, situ ated at Mohal and Mouza Ward No.52, Tappa Urban -4, Tehsil
and District Quetta but the petitioner was deprived of her legal sharai share/inheritance on the
basis of illegal and unlawful gift deed followed by a preliminary decree.
3. The respondents /defen dants contested the suit by way of filing written statement,
however, they admitted the relationship and also admitted that the property in question belonged
to their propositus. The trial Court framed as many as four issues and the parties thereafter
addu ced their respective evidence. During the pendency of proceedings, the attorney of plaintiff
No.1/petitioner through a compromise deed dated 4th February, 2010, gifted her share to
defendant No.4 Shams -ud-Din and to such extent a preliminary decree was dra wn. The case of
the plaintiff No.2 was proceeded with, which culminated in passing of the decree dated 17th
March, 2012. The respondents feeling aggrieved of the same filed an appeal before the learned
District Judge, Quetta, which was transferred to the f ile of Additional District Judge -III, Quetta.
The learned appellate Court after hearing the parties upheld the judgment and decree passed by
the trial Court. At this stage the petitioner came to know that she has been declared not a share
holder in the pro perty of her father, hence this revision petition.
4. The learned counsel for the petitioner contended that the petitioner is illiterate woman, an
illegal and un -authorized gift was made by the attorney for plaintiff/ petitioner without consent
and knowl edge of the petitioner. She remained absolutely ignorant of this so called gift and
preliminary decree. The petitioner was under bonafide impression that the suit has been decreed
and even when appeal was filed by the respondents Nos.1 to 6 before the appe llate Court the
petitioner was in the same impression, however, subsequent to dismissal of appeal to her utter
surprise, she came to know that she has not been declared as owner/co -sharer on account of a
fake and forged compromise. Learned counsel maintain ed that the respondents Nos.1, 3 to 7
were in league and every effort was made to deprive share holders from their sharai share. The
male heirs after death of predecessor in interest of the parties got mutated the property in
question in the name of male h eirs (only) vide mutation No.254 bearing Khewat No.33,
Khatooni Nos.54 to 59, comprising of 9 Qitas, measuring 7596 square feet, situated at Mohal and
Mouza Ward No.52, Tappa Urban -4, Tehsil and District Quetta. When the suit was filed by the
plaintiff and her sister the defendants came with the plea that the plaintiffs have gifted and
waived their shares in favour of her brothers. Learned counsel for the petitioner strenuously
urged that in view of stance taken by the respondents/ defendants it was inevita ble upon the trial
Court to have procured the attendance of plaintiff at the eve of production of so called gift deed
in order to affirm its authenticity. It was further maintained that power of attorney did not
contain the specific power of making gift in favour of specific donee, therefore, the gift deed so
executed was without lawful authority. In such circumstances, the preliminary decree drawn on
account of so called illegal and unauthorized gift deed being ab initio void calls for interference
of this Court while exercising its revisional jurisdiction. The learned counsel further maintained
that in any case the petitioner cannot be deprived of her legal her sharai share just on the basis of
frivolous, fictitious and concocted gift deed and the mischief played with the rights of the
petitioner/plaintiffs must be set at naught by exercising revisional jurisdiction. According to
learned counsel for petitioner the relationship between the parties is not disputed and similarly
the ownership of the property i n question belonged to propositus is admitted. So far as the claim
of gift or waiver of share in the written statement is concerned, there is concurrent finding of fact
that the plaintiffs have not gifted the property nor waived their right. Similarly, the alleged gift
made by attorney of the plaintiff is concerned, a bare perusal of power of attorney reflects that no
such power was conferred, therefore, the preliminary decree drawn by the trial Court is of no
consequence, ab initio void, as such, liable to be set aside. He prayed that at the strength of
admitted facts the petitioner as a daughter of late Jamal -ud-Din is entitled to her 'sharai' share
and her suit be decreed with cost throughout. Learned counsel placed reliance on the following
citations:
i. 2005 SCMR 1368
ii. 2006 CLC (Lahore) 1893
iii. PLD 1990 SC Page -1
iv. PLD 2010 SC 582
v. PLD 2005 SC 705
vi. PLD 1996 SC 193
Learned counsel for the respondents Nos.1 to 7 strenuously opposed the submissions by
maintaining that the present revision is incompetent as the preliminary decree passed by the trial
Court has attained finality. It was further maintained that the revisio n is barred by time
particularly at earlier round of litigation before this Court, the factum of compromise to the
extent of petitioner's share has been accepted by this Court. Learned counsel for the respondent
maintained that the petitioner has gifted th e property through her attorney vide valid gift deed
dated 04.02.2010 and now the petitioner is stopped to challenge the validity and legality of gift
deed. Learned counsel urged that the respondents have incurred huge expenses in construction on
the dispu ted property which was carried out with consent of petitioner/plaintiff. The gift was
executed with free will, knowledge and consent of petitioner, therefore, this petition is
incompetent. Reliance is placed on the following judgment:
The respondent No.8 has already -been proceeded against ex -parte vide order dated 12.5.2015.
5. I have heard learned counsel for the parties and have gone through the available record.
The perusal of record reflects that the relationship between the parties is admitted and similarly
the property in dispute belonged to the predecessor in interest of the parties is also undisputed.
During the pendency of proceedings before trial Court the attorney of plaintiff and attorney for
defendants Nos.1, 3 to 7 filed a compromise to the extent of share of the plaintiff/petitioner and a
preliminary decree was drawn, which is now the main subject of discussion. This critical
controversy has conceived a couple of crucial and complicated legal questions i.e. (i) Whether
without challenging p reliminary decree by way of appeal the present revision petition is not
competent as contended by respondents? (ii) Whether the attorney was competent to execute the
gift deed? (iii) Whether requirements of gift as contemplated by Muhammadan Law stand
fulfilled?
6. At the very outset I would like to deal with the preliminary objection raised by
respondents regarding in -competency of petition on account of non -filing of appeal. I am
conscious of the legal constraints contemplated by Section 97 of Civil Pro cedure Code i.e. a
preliminary decree if not challenged cannot be called in question while challenging final decree
and simultaneously not oblivious of the bar contained in subsection (3) of section 96, C.P.C. that
no appeal is provided against a consent d ecree. A bare perusal of impugned preliminary decree
reveals that it is a consent decree. The law is settled that a decree drawn on the basis of
compromise falls within the ambit of consent decree, as such, is not appeal -able. If any authority
is needed re ference can be made to 1989 SCMR 1826, PLD 1980 SC 45 and AIR 1974 SC 1069.
So, it can safely be concluded that the preliminary decree in question irrespective of its legality
or otherwise in this case being a consent decree was not appealable, so the non -filing of appeal
against the said preliminary decree is not a bar for filing the revision petition and the preliminary
objection regarding non -maintainability of the revision petition being devoid of force is repelled.
Without prejudice to my above view, e ven otherwise in certain cases where an order/judgment
passed suffers from inherent jurisdictional defect or is void and no appeal has been preferred, in
order to do complete and substantial justice, the non -filing of appeal cannot be treated an
insurmount able hurdle in the way of High Court for exercising the revisional power. I am
supported in my view with the judgment of our own jurisdiction rendered by the then Hon'ble
Chief Justice in the case titled Registrar, High Court of Balochistan v. Abdul Majeed and 3
others reported PLD 2013 Balochistan page -26, wherein it has been held as under:
"13. The next question that requires consideration is whether the High Court can
invoke revisional powers if the available remedy of an appeal has not been availed of .
Subsection (1) of section 115 enables the High Court to, "call for the record of any case
which has been decided by any Court subordinate to such High Court and [emphasis
added] in which no appeal lies thereto"; the use of 'and' suggests two distinct cat egories.
This interpretation is confirmed when we compare the revisional powers that can be
exercised by the District Court provided in subsection (2) of Section 115, CPC, wherein
the word 'and' is significantly absent, reproduced hereunder:
"The Distric t Court may exercise the powers conferred on the High Court by subsection
(1) in respect of any case decided by a Court subordinate to such District Court in which
no appeal lies... ."
I may also with advantage refer to two precedents, which state that t he High Court can
exercise revisional powers without an appeal having been preferred. In the case of
Naoomal v. Tarachand, AIR 1933 Sind 200, the distinction between appeals and
revisions was succinctly set out, and it was stated that in certain cases revi sional powers
may be exercised without an appeal:
"In a suit or an appeal the points to be decided ordinarily are those on which the parties
are at variance. A revision application stands on a different footing. It is a matter between
a higher Court and a lower Court; in fact revisional powers may in certain cases be
exercised without an appeal or an application by any of the parties concerned."
The Hon'ble Supreme Court has held that the availability of alternate remedy is not an
absolute bar on the Hi gh Court exercising revisional powers, in the case of Manager,
Jammu and Kash. State Property v. Khuda Yar, PLD 1975 SC 678, it held (at page 695),
that:
"Although ordinarily, Courts have declined to exercise the revisional jurisdiction where
an alternative remedy is available, yet this is not an inflexible rule to be rigidly followed
and a departure could be justifiably made if required by the circumstances of the case.
Reference may be made in this regard to Ayodhyaprasad v. Secretary of State ( 2). In Lila
v. Mahange and others, a Full Bench case authority, it was observed by Sulaiman, Acting
Chief Justice as follows:
"Section 115 is no doubt discretionary and therefore it is open to the High Court to
decline to interfere in particular cases. A s a matter of practice it may be conceded that
ordinarily the High Court would not interfere if another convenient remedy is open to an
applicant, particularly when that remedy is by way of appeal to a lower Court. But it
cannot be laid down as a general p roposition that the High Court has no power of
interference at all or should not interfere where there is another remedy by way of a suit
open to the applicant."
14. That having concluded that there is no time limit prescribed for exercise of
revisional powers by the High Court, and non filing of an appeal does not preclude the
High Court from exercising such powers itself it now needs examination whether the
District Court (a) exercised a jurisdiction not vested in it, or (b) failed to exercise a
jurisdi ction so vested, or (c) in the exercise of its jurisdiction acted illegally or with
material irregularity."
7. In the same sequence it will not be out of context to mention here that the title of petition
calls in question the orders dated 17th March, 20 12 and 21st June, 2013 and though the date of
preliminary decree does not find mention but in substance it is the preliminary decree that has
been challenged as it reflects from admission order reproduced in para 1. This may be due to
inadvertence, neglige nce or oversight of the learned counsel and the petitioner being a lady and
illiterate person can not be blamed for this oversight. Moreover, petitioner on 28.8.2015 was
present in the Court expressed her grievance that her counsel is not properly assistin g her. Mr.
Gul Hassan Tareen, Advocate was present in the court and volunteered to assist the Court,
therefore; the non -mentioning of the date of preliminary decree would not affect the revisional
jurisdiction of this Court, as this Court cannot shut its e yes over an illegal order nor is here to
perpetuate an illegality. By holding the view I am fortified with the dictum laid down in the
judgment titled as 'N.W.F.P. Govt. v. Abdul Ghafoor Khan' reported in PLD 1993 Supreme
Court 418 (relevant at page -423), wherein it has been observed as under:
"These are all enabling provisions; the powers thereunder can be exercised by the Court
to cover ostensibly impossible situations, for complete dispensation of justice, for which
C.P.C. has been designed, but despit e the best efforts of the draftsman, to cater for all
possible situations, if it is found lacking in meeting some eventualities, the Court can act
ex delicto justitiac supply the omission in the procedure, adopt methodology for
effectually carrying out the purpose in view. Reading of these provisions together would
amply demonstrate that the Appellate Court enjoys plenary powers to proceed in the
matter as it did in allowing the parties to apply to the trial Court under Section 12(2) for
investigation in to the allegation of fraud and misappropriation."
Likewise, in the case titled as 'Ghulam Hussain and others v. Faiz Muhammad and others'
reported in PLD 1991 Supreme Court 218 (relevant at page -222), it has been held has under:
"It may be clarified that had there been any such difficulty we would not have hesitated
to exercise further inherent power to do complete justice by undoing an un -Islamic mode
of devolution of inheritance of Lal Khan deceased, the last male -holder in this case
whereby a female he ir Mst. Mureedan would have been deprived of her valuable right to
inheritance. See for the support of this view Ghulam Ali and 2 others v. Mst. Ghulam
Sarwar Naqvi PLD 1990 Supreme Court 1. But it is not necessary.
Same power was with the High Court its elf and a similar power is with this Court under
Supreme Court Rules Order XXXIII Rule 5. The trial Court also, it cannot be denied, had
inherent power in a case like the present one on the analogy of provisions contained in
Order XLI, Rule 33, C.P.C. and Order XXXIII, Rule 5, Supreme Court Rules to do
justice between the parties before it, under section 151, C.P.C. If there was any need for
an order for transposing a defendant as a plaintiff the same also could have been done
under other provision of C.P.C . including general enabling provision in this behalf
namely, section 153, C.P.C. This error or defect could be remedied by any of the Courts
and could also be resorted to by this Court if there would have been any need but in view
of the availability of t he other more elaborate and effective power under Order XLI, Rule
33, C.P.C. the two lower appellate Courts and under Order XXXIII, Rule 5 of this Court,
there is no need to resort to the said provisions of C.P.C. Including sections 151 and 153,
thereof."
8. The petitioner claims to never knew that a compromise has been effected on her behalf
and her suit has been dismissed. The petitioner being a lady and share holder in the property is
running from pillar to post to get her share in ancestral property. She used to appear before the
appellate Court and contested the appeal. The appeal has been filed by respondents Nos.1 to 7
and the petitioner is a party without disclosing in the title of appeal her as a proforma respondent.
So, the question remains wheth er in the given circumstances the revisional jurisdiction would be
barred, to me, the answer to this question, in the wake of peculiar circumstances and particular
facts of this case a big 'No', for a variety of reasons. Firstly, because in the given circu mstances
of the case the only remedy to judge the legality of the gift deed is the course of revision.
Secondly, the revisional powers are supervisory in nature and the matter remains between the
High Court and court sub -ordinate to it. So, irrespective of nature of the information, once the
High Courts comes to know that an inherent irregularity in proceeding has been committed or an
order which is patently illegal, without jurisdiction or void has been passed by a Court sub -
ordinate to it and the dictates of justice require to set a wrong right, the exercise of revisional
jurisdiction becomes inevitable.
9. Similarly, the second contention by respondents regarding acceptance of gift by this
Court is fallacious because the respondents filed a revision pet ition and during the course of
preliminary hearing a contention to this aspect was raised, whereas, in fact the gift was not the
subject of that proceedings, civil revision was dismissed in limine and no judgment holding the
gift in question legal and vali d was ever passed by this Court.
10. A cursory glance of The preliminary order & decree dated 21st December, 2010 passed
by the Civil Judge -III, Quetta reveals that apparently it suffers from some material defects.
According to contents of the order the compromise deed to the extent of plaintiff No.2 has been
produced, whereas, plaintiff No.2 is Mst. Rashida and not the petitioner. This order suffers from
another defect as it imposes a ban and bar on petitioner to challenge its validity. This situation
reveals that the trial Court has not applied its judicial mind over the facts of the case.
11. Now coming to the crucial limb of the matter i.e. the validity of gift by the attorney. A
minute and meaningful perusal of the gift deed reflects that it absolutely lacks the prerequisites
and essentials of a gift as required and contemplated by the provis ions of Muhammadan Law.
Admittedly, there is no offer of gift by the donor nor acceptance of gift by the donee and
similarly possession has never ever been delivered to donee in consequence of the so called gift.
The gift is entirely contrary to the mandat e of Sections 149 and 150 of Muhammadan Law (by
Mulla) (Chapter -XI). Furthermore, there is no cavil to the legal proposition that every `General
Power of Attorney' by its description does not include the power to make gift, alienate or dispose
off the prop erty of the Principal unless it finds mention a specific, categoric and exhaustive
clause in that respect. So, to determine whether the General Power of Attorney executed in
favour of Imran Ahmed son of petitioner empowered the attorney to make a gift, for the sake of
facility the contents of power of attorney are reproduced herein below:
12. The gift made by the attorney of the petitioner was beyond the powers conferred upon
attorney. Legally, for making a gift by attorney it must contain a specific clau se of conferment of
power making gift by specifying donee. Analyzing the present gift at such touch stone it can
safely be concluded that no such power was ever conferred upon the attorney at all. The bare
perusal of the contents of the power of attorney l eave no room for doubt that no power to make
gift was ever conferred upon the attorney and in fact it was an attempt to play mischief with the
legal and vested rights of a share holder much less an illiterate lady and sister of defendants
Nos.1, 3 to 6. Re spondents Nos.4 to 7 are ladies and perhaps themselves might be victim of the
circumstances. In my considered opinion, the trial Court should have procured the attendance of
the petitioner and ought to have had verified the contents of the gift deed in vie w of the fact that
right from the day one the male heirs were bent upon to do away with the vested rights of their
sisters by whatever possible pretext and did not leave any stone unturned to deprive their sisters
from inheritance. Initially the brothers a fter the death of father mutated this property in the name
of male heirs only on the basis of 'Shari Fatwa' without disclosing that there are female heirs.
The petitioner appeared before this Court and refuted the factum of gift and empowering the
attorney for making gift. She stated that she was absolutely ignorant of the so called gift by her
attorney and up -to appellate stage she was under the impression that her suit has been decreed.
She came to know about this fraudulent act after the judgment of appe llate Court. Rights of the
female that have been determined in 'Holy Quran' require due respect, regard and honour, each
share holder must be given his/her share as ordained by the 'Holy Quran'. In the light of given
circumstances, I do not feel hesitation to hold that the gift deed/compromise deed dated
04.02.2010 was a frivolous, fictitious, fabricated, unauthorized and an illegal document,
therefore, the preliminary decree drawn at the strength of such baseless and concocted document
carries no legal wei ght. By holding the view I am supported by a plethora of judgments which
are reproduced as under:
(A) Case titled as Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others' reported in
1994 SCMR 818.
"Love and affection cannot be expressed by any attorney on behalf of the donor. The
sentiments which were the consideration for gift in the present suit must be established to
have come from the donor. Gifts are voluntarily and gratuitous in the present suit transfer
from the donor to the donees. The essential 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 done e 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 co ntaining the power to make the gift must also clearly specify the
property and the donee in the case. In the case before a gift made by Said Gawas in
favour of his wife Mst. Gulzar Begum on the basis of the power of attorney executed in
his favour by Said Nawab cannot be upheld for two reasons. Firstly, the power of
attorney executed in favour of respondent No.2 by the deceased Said Nawab did not
contain any specific provision authorising him to make a gift of his properties and
secondly, even if we assume 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 respondent No.2 (the donor). This Court in the case of Fida Muhammad v. Muhammad
Khan PLD 1985 SC 341 while taking note of widespread misuse of power of attorney,
observed as follows: ---
"It is wrong to assume that every "general" power of attorney on account of the said
description means and includes the powers 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 particular attention to such a clause if intended to
be included in the power of attorney with a view to avoid any uncertain ty or vagueness.
Implied authority to alienate property, would not be readily deduceable 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 w hen the allegation
by the principal is of fraud and/or misrepresentation. '
The second aspect which needs caution on question of validity of acts under a power of
attorney is that notwithstanding an authority to alienate principal's property, the attorne y
is not absolved from his two essential obligations, amongst others:
Firstly in cases of difficulty (and it will be a case of difficulty if the power of attorney is
susceptible to doubt about its interpretation) to use all reasonable diligence in
commun icating with the principal and seeking to obtain his instructions, and secondly, if
the agent deals on his own account with the property under 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 principal is at liberty to repudiate the transaction. The following
two examples given under section 215 of the Contract Act are illustr ative of the intention
of the law: -
(a) A directs B to sell A's estate. B buys the estate for himself in the name of C. A, -
on discovering that B has bought the estate for himself may repudiate the sale, if he can
show that B has dishonestly concealed a ny material facts, or that the sale has been
disadvantageous to him.
(b) A directs B to Sell A's estate. B' on looking over the estate before selling it finds a
mine on the estate which is unknown to A. B informs A that he wishes to buy the estate
for hi mself but conceals the discovery of the mine. A on discovering that B knew of the
mine at the time he bought the estate, may either repudiate or adopt the sale at option."
(B). case titled `Mst. Bandi v. Province of Punjab and others' reported in 2005 SC MR
1368.
"The learned Single Judge, relying upon Mst. Shumal Begum's case 1994 SCMR 818 had
also found and rightly so that in case of a gift made by an attorney it must be shown that
the power of attorney had specifically authorized the said attorney to make a gift of the
land in favour of the specified person which was not the situation in the present case.
..
..
Having heard the learned counsel for the parties at some length, we find that no exception
could be taken to the conclusions reached by the Honourable High Court and the reasons
which had weighed with it in reaching the said conclusions. It is true that the High Court
had disturbed the concurrent findings of the two Courts below but it could not be shown
that such a decision on the part of the High Court was not warranted by the evidence and
the material available on record."
(C) Case titled as `Mst. Parsan Bibi and another v. Mst. Razia Bibi and 10 others'
reported in 2006 CLC Lahore 1893.
"The property in dispute belonged to one Hayat Muhammad, who had appointed his son -
in-law namely Ali Asghar, the husband of Mst. Razia Bibi, his daughter as his attorney A
vide general power of attorney dated 9 -8-1994; the said attorney, on the basis of the
above, has gifted the suit -land in favour of his wife Mst. Razia Bibi, vide Mutation
No.218 dated 5 -6-1996; after the death of Hayat Muhammad, Mst. Parsan Bibi, his
daughter and Dost Muhammad, his brother (the petitioners) filed a suit for declaration
against Ali Asghar the general attorney, Razia B ibi, and Roshny Begum, the widow of
Hayat, challenging the above gift; this suit has been dismissed by the trial Court vide
judgment and decree, dated 7 -7-2004, holding that a valid gift has been proved to have
been made in favour of Mst. Razia Bibi by her husband Ali Asghar, the general attorney;
this remains to be the view of the learned Court of appeal, when the decree was
challenged by the petitioner in appeal.
2. Learned counsel for the petitioners by relying upon the judgments reported as
Mst. Shuma l Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 and Mst. Bandi
v. Province of Punjab and others 2005 SCMR 1368 has argued that under the
Muhammadan Law, no gift can be made through an attorney; this plea when confronted
to the respondent's counsel, he submits that such plea has not been raised before the
learned trial Court or in appeal; even memorandum of this revision petition, does not
mention the above point, suffice it to say that this is a legal point and can be raised and
agitated at any poin t of the proceedings. Even otherwise, this plea has been taken by the
petitioners in ground (a) of their plaint, as also ground (1) in the memo. of this revision,
may be not so accurately worded."
3. According to the law mentioned above, which has also b een relied in an
unreported judgment of this Court passed in R.F.A. No.300 of 1998, decided on 1 -3-
2006, it is categorically enunciated that the donor can only make a gift himself and not
through the attorney; the attorney can only be appointed for facilit ating the steps for the
valid conferment of the rights under the gift, made by the donor."
13. The law on the subject stands settled that the moment propositus dies the property
devolves upon legal heirs without any intervention of Court and clergy. By h olding the view, I
am fortified by the dictum laid down in the judgment titled as 'Ghulam Ali and 2 others v. Mst.
Ghulam Sarwar Naqvi', reported in PLD 1990 SC page 1, relevant observations wherefrom read
as under:
A. "It is not for the first time that it is being, so held. Even earlier commentators on
Islamic Law (its inheritance branch in particular) have indicated the same approach with
reference to some decided cases. The heir in possession was considered to be in
constructive possession of the prope rty on behalf of all the heirs in spite of his exclusive
possession, e.g., the possession of the brothers would be taken to be the possession of
their sisters, unless there was an express repudiation of the claims of the sisters by the
brothers. Hyder Khan v. Chanda Khan (5011 C 691 (All).
It is again to be emphasised that on principle, in Islamic law it is not possible to accept
the claims of co -owners/inheritors when they are males and females together, the former
seeking a right on the basis of adverse possession and ouster against the latter. The
comments and precedents referred to above are only illustrative of a principle; which has
to be restated more clearly. The pleas of estoppel, waiver and adverse possession can also
be now easily repelled in th e light of the foregoing discussion of the Islamic principles.
The petitioners being the brothers of the respondent were required by the Islamic law to
protect the property rights of their sister if ever they came into possession of the land in
any capacit y. Here admittedly they alleged voluntary relinquishment, therefore, even
otherwise the well -known rules for establishing adverse possession, particularly the one
relating to hostility, would not be established. But as stated earlier one who is enjoined
with the protection of the other's property cannot lay claim adverse to the interests and
rights of that other one who owns it. The Saying of the Holy Prophet (P.B.U.H.) has been
quoted which enjoins upon the menfolk to protect property rights of their women folk.
Under the Islamic dispensation, therefore, in the present case there could be no claim of
adverse possession. Same would apply to the estoppel and waiver. More so on account of
rule of public policy and the principle of devolution of the property in respondent's
favour immediately on the death of her father (regardless of the fact whether she did any
other act to exercise control over it) would negate the plea of estoppel or waiver. The plea
of ouster, to say the least, is untenable; because, its esse ntial component, the plea of
adverse possession, is obviously not available against a sister what to talk of her ouster.
This case also required similar, if not better, treatment. The scope of rights of inheritance
of females (daughter in this case) is s o wide and their thrust so strong that it is the duty of
the Courts to protect and enforce them, even if the legislative action for this purpose of
protection in accordance with Islamic Jurisprudence, is yet to take its own time."
14. Once it is establis hed that the property belongs to the propositus, after his death each and
every share holder become entitled to his/her sharai share irrespective of the fact that she has
filed suit or not and would be entitled to have it. By holding the view I am supporte d by the
dictum laid down in the case title 'Mst. Suban v. Allah Ditta and others' reported in 2007 SCMR
635, relevant observations read as under:
"11. It is a proposition too well -established by now that as soon as someone who owns
some property, dies, the succession to his property opens and the property gets
automatically and immediately vested in the heirs and the said vesting was not dependent
upon a ny intervention or any act on the part of the Revenue Authorities or any other State
agencies. It is also an established proposition that a mutation did not confer on anyone
any right in any property as the Revenue Record was maintained only for realizatio n of
land revenue and did not, by itself confer any title on anyone. It may also be added that
efflux of time did not extinguish any rights inheritance because on the death of an owner
of property; all the co -inheritors, immediately and automatically, beca me co -sharers in
the property and as has been mentioned above, limitation against them would start
running not from the time of the death of their predecessor -in-interest nor even from the
date of mutation, if there be any, but from the date when the right of any such co -
sharers/co -inheritors in such land was denied by someone.
12. Having thus, examined all aspects of the matter, we find that the learned
Appellate Judge was right in holding that the plaintiff heirs of the said Gharu could not
have been no n-suited on account of limitation; that the onus lay very heavily on Mst.
Ghulam Fatima to establish relinquishment, by the other heirs, of their rights in the
property in question which burden she had not been able to discharge, inter alia, because
the da ughters in question of Gharu were minor at the time of the alleged family
settlement and also because mutation in question bearing No.86 proceeded on dishonest
and incorrect premises i.e. Gharu having died issueless and Mst. Fatima being his only
surviving heir.
18. Consequently, in view of the provisions of rule 4 of Order XL1 of the Code of
Civil Procedure which envisage grant of relief even to the non -appealing parties and also
in discharge of the obligations cast on this Court to do complete justice, we declare and
direct: --
(a) that all those persons, who qualified as heirs of Gharu as per the Sunni faith, at the
time of his death in the year 1942, were entitled to their respective Sharai shares in each
and every inch of land left behind by the said Gharu;
(b) that the said estate would consequently devolve upon all such heirs in accordance
with the said shares are that;
(c) the District Officer. (Revenue) of Bahawalnagar shall identify/cause to be
identified all such heirs of the said Gharu and then ensure entering and attestation of
mutation/mutations of inheritance of the said entire estate of Gharu in the name of the
said heirs or in the name of the heirs of the said heirs if any such heirs be dead by now."
In the light of above discussion, I am of the considered opinion that the gift deed executed by the
attorney of plaintiff was beyond the powers and thus inadmissible and void, therefore,
preliminary order/decree dated 21.12.2010 passed by Civil Judge -III, Quetta is hereby set aside
and the suit is decreed. The petitioner and all the descendants of late Jamal -ud-Din are entitled
for their sharai share and at the strength of judgment referred to hereinabove passed by the
Hon'ble Apex Court. I, therefore, direct the Collector (Revenue) Quetta to distribute the property
of late Jamal -ud-Din to all the share holders including the plaintiff in accordance with their
sharai shares i.e. mother shall take 1/8, each sister 1 share and each brother 2 shares. Resultantly,
the petition is accepted with co st throughout.
ZC/12/Bal. Revision allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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