Validity of General Power of Attorney
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This case involved a property dispute between family members. A woman, Asghari Begum, had leased her agricultural land to her brother, Abdul Haq, for several years. When the lease ended and she sought to renew it, she discovered that her brother claimed she had earlier given him a general power of attorney, which he then used to gift the land to his own son. Asghari Begum denied ever executing this power of attorney, calling it fraudulent, and sued to have it, the gift deed, and related land records cancelled.
The trial court and the first appellate court both ruled in her favor, cancelling the documents. The brother and his relatives challenged this before the Lahore High Court, arguing that the power of attorney was validly signed and registered, with witnesses present when she put her thumb impression on it, and that registered documents carry a presumption of truth.
The High Court found that the lower courts had failed to properly examine the central issue, whether the power of attorney was genuine. Despite this being framed as a specific issue in the case, no real discussion or independent findings had been made on it. Because of this gap, the High Court set aside the appellate court's decision and sent the case back for a fresh decision, suggesting that the authenticity of the woman's thumb impression on the document be properly compared and verified. This case highlights how courts must thoroughly examine disputed signatures or thumb impressions before deciding property rights based on them.
یہ مقدمہ خاندان کے افراد کے درمیان جائیداد کے ایک تنازعے سے متعلق تھا۔ اصغری بیگم نامی ایک خاتون نے اپنی زرعی زمین کئی سال کے لیے اپنے بھائی عبدالحق کو ٹھیکے پر دے رکھی تھی۔ جب ٹھیکے کی مدت ختم ہوئی اور اس نے اسے دوبارہ تجدید کروانی چاہی تو اسے معلوم ہوا کہ اس کے بھائی کا دعویٰ ہے کہ اس نے پہلے اسے ایک جنرل پاور آف اٹارنی (مختار نامہ عام) دے رکھا تھا، جسے استعمال کرتے ہوئے اس نے وہ زمین اپنے بیٹے کے نام ہبہ کر دی تھی۔ اصغری بیگم نے اس مختار نامے پر دستخط کرنے سے صاف انکار کیا اور اسے جعلی قرار دیتے ہوئے عدالت میں دعویٰ دائر کیا کہ یہ مختار نامہ، ہبہ نامہ، اور متعلقہ ریکارڈ منسوخ کیے جائیں۔
ٹرائل کورٹ اور پہلی اپیلی عدالت، دونوں نے اس کے حق میں فیصلہ دیتے ہوئے ان دستاویزات کو منسوخ کر دیا۔ بھائی اور اس کے رشتہ داروں نے اس فیصلے کو لاہور ہائی کورٹ میں چیلنج کیا اور موقف اختیار کیا کہ مخت
Generated from the full judgment text below — not a substitute for reading the actual opinion.
PLJ 2012 Lahore 396 Present: Ch. Shahid Saeed, J. ABDUL HAQ and 7 others--Petitioners versus ASGHARI BEGUM--Respondent C.R. No. 3484 of 2010, heard on 2.4.2010. Civil Procedure Code, 1908 (V of 1908)-- ----S. 115--Civil revision--Suit for declaration with permanent injunction--Controversy about general power of attorney executed by plaintiff in favor of her real brother who on basis of same gifted out the property and subsequent mutations were sanctioned--Question of--Whether general power of attorney was true or not--Presumption of truth was attached to register documents--After receipt of consideration amount power of attorney was got registered--Respondent appeared before sub-registrar and put her thumb impression power of attorney in presence of witnesses--Respondent could not be allowed to seek cancellation of same--Validity--Courts below thrashing all aspects relating to that matter was required but Courts had failed to apply judicious mind and all other ignored--Civil revision was allowed--Appellate Court can resort to comparison of thumb impression of lady as according to petitioner--Lady was present before sub-registrar when alleged power of attorney was executed but ladies denied same. [P. ] A & B Mr. Muhammad Iqbal Mohal, Advocate for Petitioners. Mr. Zahid Ghafoor Azam, Advocate for Respondent. Date of hearing: 2.4.2012. Judgment This civil revision is directed against judgments and decrees dated 8.10.2010 and 2.7.2010 passed by learned Additional District Judge, Pasrur and learned Civil Judge, Pasrur respectively.
2. Succinctly stated the facts leading to the filing of this civil revision are that Mst. Asghari Begum, respondent, instituted a suit for declaration with permanent injunction against the present petitioners alleging therein that she being the owner of land measuring 40 kanal-1 marla, fully described in the plaint, leased out the same to her real brother Abdul Haq for a period of seven years from 1998 to 2005 against lease money of Rs. 70,000/- but when, after expiry of lease period, she contacted Abdul Haq for renewal of lease, he first kept the matter pending on one pretext or the other for some time and ultimately, informed the plaintiff that she had made general power of attorney No. 478, dated 18.12.1997 in his favour by virtue of which, Abdul Haq gifted the suit property to his real son vide Gift-Deed No. 425, dated 05.08.1998. The plaintiff avers that she did not execute the power of attorney in favour of Abdul Haq which is result of fraud and has been got prepared in connivance with the revenue officials. The plaintiff prayed for cancellation of general power of attorney Bearing No. 478 dated 18.12.1997, Gift-Deed No. 425 dated 18.12.1997 and subsequent Mutations No. 1 to 8 dated 22.01.2000 averring that the said documents are illegal and inoperative upon the rights of the plaintiff.
3. The petitioners-defendants hotly contested the suit by way of filing written statement whereby the averments of the plaintiff were opposed. Keeping in view divergent pleadings of the parties, the learned trial Court framed as many as nine issues including that of relief. After recording oral as well as documentary evidence of the parties, the learned trial Court proceeded to decree the suit of the plaintiff vide judgment and decree dated 02.07.2010. The appeal preferred thereagainst by the petitioners was dismissed vide judgment and decree dated 08.10.2010 passed by learned First Appellate Court. Hence this Civil Revision.
4. Learned counsel for the petitioners mainly contends that the general power of attorney was duly executed by the plaintiff in favour of her real brother Abdul Haq after receipt of consideration amount of Rs. 2,60,000/- which power of attorney was also got registered. Further argues that she herself appeared before the Sub-Registrar and put her thumb impression on the disputed general power of attorney in presence of the witnesses whereafter she could not be allowed to seek cancellation of the same. He avers that presumption of truth is attached to the registered documents. His more stress was on the point that the plaintiff lady is still alive, therefore, the matter, be remanded to learned trial Court for comparison of thumb impression of the lady so that truth may be reached. Learned counsel further avers that no illegality or fraud has been committed by Abdul Haq who having possession of the property and holding the general power of attorney was fully authorized to gift the disputed property to his son. He further points out that the possession of the property is admittedly with the petitioners but the plaintiff has filed the suit for declaration without seeking possession which is not maintainable. He further argues that learned Courts below have failed to apply their judicious mind and even issue-wise findings have not been given by them. He prays that the instant civil revision be allowed, the impugned judgments and decrees be set aside and the case be remanded to the learned trial Court for decision afresh. He has relied upon the law laid down in cases Rahmatullh Khan and another vs. Ghulam Farid (2009 SCMR 371). Abdul Mannan and others vs. Sikandar Khan (1992 CLC 505), Alam Khan and 3 others vs. Pir Ghulam Nabi Shah & Company (1992 SCMR 2375), Taj Muhammad Khan (deceased) through LRs and another vs. Mst. Munawar Jan and others (PLJ 2009 SC 375) and Nazir Ahmad and another vs. M. Muzaffar Hussain (2008 SCMR 1639).
5. On the other hand, learned counsel for the respondent-plaintiff vehemently opposes this civil revision and fully supports the impugned judgments and decrees.
6. The whole controversy revolves around the general power of attorney allegedly executed by the plaintiff in favour of her real brother Abdul Haq who on the basis of the same gifted out the property in favour of his son vide Gift-Deed No. 425 dated 18.12.1997 and subsequent Mutations No. 1 to 8 dated 22.01.2000 were also sanctioned. The alleged power of attorney was registered vide No. 478 on 18.12.1997. Issue No. 5 was framed at to whether the general power of attorney was true or not but the same has not been discussed independently nor independent findings have been given by learned Courts below. In my view, Issue No. 5 was a vital issue add full-fledge discussion by learned Courts below thrashing all the aspects relating to this matter was required but the learned Courts have failed to apply their judicious mind and altogether ignored Issue No. 5. In this view of the matter, the instant civil revision is allowed, judgment and decree dated 08.10.2010 passed by learned First Appellate Court is set aside and the case is remanded to the learned First Appellate Court for decision afresh after hearing the parties. For the very purpose, the appeal of the petitioners would be deemed to be pending before the learned lower appellate Court. The appellate Court may resort to comparison of thumb impression of the plaintiff lady as according to learned counsel for the petitioner, the lady was present before the Sub-registrar when the alleged power of attorney was executed but the lady denies the same. Parties are directed to appear before the learned First Appellate Court on 21.4.2012. (R.A.) Case remanded