Mst. BUDHAI VS GHULAM MUSTAFA
PLD 2016 Lahore 287
Before Amin-ud-Din Khan, J
Mst. BUDHAI through Legal Heirs---Appellant
Versus
GHULAM MUSTAFA and others---Respondents
R.S.A. No.54 of 1997, decided on 29/04/2014.
Islamic law---
----Gift---Gift through attorney---Scope---Plaintiffs filed suit for declaration that property in question could not be gifted by the attorney after the death of principal whereas defendants filed suit wherein they challenged the date of death of the principal---Suit of plaintiffs was decreed by the Trial Court but that of defendants was dismissed but both the judgments and decrees of Trial Court were reversed by the Appellate Court---Validity---Gift was a personal action which could be performed by the owner only---Without any consideration in the shape of tangible material donor could gift any property to any person due to love and affection---Attorney had no right to gift property to any person on his own behalf---Attorney could use his powers only for completion of formalities of transfer in the shape of registration of gift deed or entry of attestation of gift mutation where principal had transferred the property through gift---Principal, in the present case, had not gifted suit property to the father of attorney but he had transferred the same through registered gift deed in favour of his father on the basis of registered power of attorney---Transfer of property in question in favour of his father by the attorney through gift on his own behalf was not permissible under the law---No gift of property prior to the registration of gift deed had been proved by the donee from the principal---Attorney was bound to get specific permission from the principal for transfer of his property in favour of his own father---No such permission was granted to the attorney to transfer the property in favour of his near relative---Gift deed executed by attorney was nullity in the eye of law---Inquiry had been conducted and after inquiry Deputy Commissioner had passed order with regard to date of death of principal---Findings recorded by the Trial Court with regard to date of death of principal were comprehensive---Suit filed by the defendants was rightly dismissed by the Trial Court and findings recorded by the Appellate Court were not sustainable in the eye of law---Impugned judgments and decrees passed by the Appellate Court were set aside and those of Trial Court were restored---Suit instituted by the plaintiffs was decreed with costs throughout whereas that of defendants was dismissed with costs throughout---Appeal as well as revision was accepted in circumstances.
Mahommedan Law by D.F. Mulla, pp. 138 and 149; Amna Rani and others v. Ashfaq Ahmad and others 2008 SCMR 805; Haji Faqir Muhammad and others v. Pir Muhammad and another 1997 SCMR 1811; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818 and Fida Muhammad v. Pir Muhammad Khan (deceased) through Legal Heirs and others PLD 1985 SC 341 rel.
Mian Hameed-ud-Din Kasuri for Appellant.
Azhar Maqbool Shah for Respondents.
Dates of hearing: 25th and 29th April, 2014.
JUDGMENT
AMIN-UD-DIN KHAN, J. Through this single judgment intend to decide the above captioned R.S.A.No.54 of 1997 as well as Civil Revision No.1712 of 1997, as common question of law and fact is involved in both the cases.
2.Through the regular second appeal, appellant-plaintiff has challenged the judgment and decree dated 21.06.1997 passed by the learned Addl: District Judge, Okara, whereby the appeal filed by the respondents-defendants was accepted, by way of which, judgment and decree dated 29.01.1995 passed by the learned Civil Judge 1st Class, Okara decreeing the suit for declaration and possession filed by the appellant-plaintiff were set aside.
3.The facts as leading to the appeal are that appellants-plaintiffs Mst. Budhai, Mst. Maryim daughters of Chawa and Muhammad Ramzan s/o Chakar filed a suit for declaration on 21.06.1976 that they being legal heirs of Choghatta deceased, plaintiff No.1 being real sister of deceased is entitled 1/2 share, plaintiff No.2 1/6 share being consanguine sister and plaintiff No.3 is entitled to 1/27 share. They challenged registered gift deed No.3438 registered on 04.12.1975 and mutation No.54, attested on 19.12.1975 on the basis of gift deed. It is pleaded that same are result of fraud, undue influence and nullity in the eye of law. That the propositus Choghatta was real brother of plaintiff No.1 and consanguine brother of plaintiff No.2. Muhammad Ramzan claimed to be the son of Chakar and grandfather of Chakar and Chawa was Nawab, therefore he also claimed inheritance. The case pleaded by the plaintiffs is that defendant No.1 Ghulam Mustafa is son of defendant No.2 Wariyam, who was a tenant upon the suit land under the deceased. The deceased was unmarried, therefore no any issue was from him. He was having old age as well as was chronic patient, therefore, was under the undue influence of defendants Nos.1 and 2. It is pleaded that due to undue influence a power of attorney was got executed from the deceased in favour of defendant No.1 on 02.10.1973 for administration of property but dishonestly rights to sale and gift were entered in the power of attorney. The defendant No.1 as Attorney of said deceased gifted the suit property to his own father i.e. defendant No.2 through registered gift deed-dated 04.12.1975 and mutation No.54 on the basis of gift was also sanctioned on 19.12.1975. Further case of the plaintiffs that actually Choghatta passed away on 25.11.1975 and after the death of Principal suit property could not have been gifted by the Attorney and further that even in the life of Principal the Attorney was not entitled to gift the suit property of Principal, to his own father.
4.The written statement was filed and suit was contested. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence in support of their versions. After the completion of trial, learned trial court vide judgment and decree dated 29.01.1995 decreed the suit. An appeal was preferred by the respondents-defendants before the learned first appellate court, which was accepted and by setting aside the judgment and decree of learned trial court suit was dismissed. Hence, this regular second appeal.
5.Through the civil revision, petitioner-defendant Mst. Budhai has challenged the judgment and decree dated 21.06.1997 passed by the learned Addl: District Judge, Okara, whereby the appeal filed by the respondents-plaintiffs was accepted, by way of which, judgment and decree dated 29.01.1995 passed by the learned Civil Judge 1st Class, Okara dismissing the suit for declaration and permanent injunction filed by the respondents-plaintiffs, were set aside.
6.The facts as leading to the civil revision are that the Deputy Commissioner, Okara passed an order on 03.08.1987 upon the inquiry declaring the date of death of Choghatta as 25.11.1975, which order was challenged by Ghulam Mustafa etc in their suit filed on 05.09.1987. The suit was contested. Learned trial court framed the issues and invited the parties to produce their respective evidence. Both the parties adduced oral as well as documentary evidence. Vide judgment and decree dated 29.01.1995 passed by the learned trial court suit was dismissed. An appeal was preferred before the learned first appellate court, which was accepted vide judgment and decree dated 21.06.1997 and judgment and decree of learned trial court were set aside and suit of respondents-plaintiffs Ghulam Mustafa etc was decreed. Hence, the civil revision.
7.Learned counsel for the appellants as well as revision-petitioners argues that the findings recorded by the learned trial court are very exhaustive, whereby each and every point of fact as well as law has been noted by the learned trial court, which are in accordance with the evidence and law applicable on the facts of case; that the learned first appellate Court has not been able to meet with the findings of learned trial court and has wrongly reversed the same, therefore, prays for restoration of judgment and decree passed by the learned trial court and setting aside of learned first appellate court. It has been further argued that in the suit subject matter of appeal, the matter was agitated by the plaintiff-appellant in the year 1976 but the respondents filed their suit for declaration to challenge the record of entries about the death of Choghatta on 05.09.1987, as such, learned trial court has rightly dismissed the suit filed by the respondents and the learned appellate court has wrongly accepted their appeal.
8.On the other hand, learned counsel for the respondents supports the findings recorded by learned first appellate court; that there is absolutely no defect in the findings of learned first appellate court, therefore, prays for dismissal of appeal as well as civil revision.
9.I have heard the learned counsel for the parties at full length and also gone through the voluminous record as well as findings of learned both the courts below with the able assistance of learned counsel for the parties.
10.The admitted facts are that there is a power of attorney registered on 2-10-1973, copy of which has been produced as Ex.P-1. On the basis of this power of attorney Ghulam Mustafa, the attorney transferred whole of the land owned by Choghatta, the propositus in favour of his father through gift deed registered on 04.12.1975 on the basis of said power of attorney.
11.The basic question in this lis is that whether a person in whose favour there is a power of attorney and there is power to gift the property, can transfer the suit property through gift on his own behalf or the powers can be used just to confirm the direction of principal to transfer the property through gift and original gift is to be made by the principal himself and these powers can be used in order to complete the formalities. The second question is whether a person in whose favour there is a power of attorney to transfer the suit property through sale or gift can transfer the suit property in favour of his near relative without the specific or special permission of principal. These are the legal questions, therefore, I would like to dilate upon these questions first.
12.To gift any property to any person mainly without any consideration in shape of tangible material, is due to love and affection of donor with the donee. For dilating upon this question it is necessary that the relevant paras of Mohammedan Law by D.F. Mulla i.e. paras Nos.138 and 149 are necessary to be quoted, which are as follows:
"138. Hiba or gift: A hiba or gift is "a transfer of property, made immediately, and without any exchange," by one person to another, and accepted by or on behalf of the latter.
"Hiba" means transfer of right of property in substance by one person to another without consideration which is a condition to be fulfilled in order to make a gift valid."
149. The Three essentials of a gift: It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in section 150. If these conditions are complied with the gift is complete."
It is clear that gift is a personal action which can be performed by the owner only. Through an attorney in whose favour there are general powers of gift whether the same can be used for completion of formalities if gift is made by the owner, or the attorney can transfer the property through gift, as it is pre-condition for a valid gift, declaration of gift be by the donor. In my view, the attorney in whose favour there is a power of attorney to transfer the suit property through gift has no right to gift the property to any person on his own behalf. These powers can only be used in case the principal transfers the property through gift and only in order to complete the formalities of transfer in shape of registration of gift deed or entry of attestation of gift mutation, the powers can be used and the agent i.e. the attorney cannot gift the suit property on his own behalf. Furthermore, the only sentence which is referring to the Principal is that:
does not show that the principal gifted. the suit property to the father of attorney and power of attorney has been used just for completion of formalities getting, this gift deed registered. The language of this gift deed shows that the attorney on his own behalf is transferring the property through gift in favour of his father which is not permissible under the law and no gift of property prior to the registration of gift deed has been claimed or proved by the donee from the original owner, i.e. the principal. The sentence noted supra taken from gift deed which has been produced as Ex.P.2. does not show that any permission was granted to the attorney to transfer the property in favour of near relative of the agent. In this view of the matter, gift deed is nullity in the eye of law on legal premises.
13.The second question is that whether an attorney can transfer the property of principal in favour of his own near relative without the specific and special permission of principal. In this case, admittedly the property has been transferred in favour of his father by the agent/attorney. It was incumbent upon the agent/attorney to get specific permission from the principal for transfer of principal's property in favour of his own near relative i.e. father of attorney. No such permission has been pleaded or proved by the attorney and even there is no such specific permission mentioned in the impugned document, therefore, that transfer is nullity in the eye of law. In this context, I am fortified by the dictum laid down by the august Supreme Court of Pakistan in the judgments reported as "2008 SCMR 805 (Amna Rani and others v. Ashfaq Ahmad and others), 1997 SCMR 1811 (Haji Faqir Muhammad and others v. Pir Muhammad and another), 1994 SCMR 818 (Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others) and PLD 1985 Supreme Court 341 (Fida Muhammad v. Pir Muhammad Khan (deceased) through-Legal Heirs and others)".
14.So far as question of death of Choghatta is concerned, death certificate of said Choghatta has been produced as Ex.P-6, which shows that he died on 25.11.1975 and this fact has been confirmed through a thorough inquiry conducted by the Deputy Commissioner, Okara. The findings recorded by the learned trial court on this point are very comprehensive. Admittedly, the original entry with regard to death of Choghatta was recorded as 25.11.1975 and the same was got entered on 24.12.1975 by Muhammad Akram, Chowkidar of the village and the entry relied by the donee was got entered on 26.01.1984 as date of death on 13.12.1975, which has been produced in their suit as Ex.P-1, the subject matter of civil revision. It shows that comprehensive inquiry has been conducted and after inquiry the Deputy Commissioner, Okara has passed the order, which has been impugned in the suit subject matter of civil revision. I have noticed that the inquiry proceedings and the evidence clearly show that suit was rightly dismissed by the learned trial court and the findings of learned first appellate court ignoring the valuable evidence available on the file are not sustainable under the law.
15.In the light of what has been discussed above, the appeal as well as civil revision are accepted and the judgments and decrees dated 21.06.1997 passed by the learned Additional District Judge, Okara impugned in the appeal as well as civil revision are set aside. The result would be, suit for declaration and possession filed by the appellant-plaintiff Mst. Budhai shall stand decreed with costs throughout, whereas the suit for declaration and permanent injunction filed by the respondents Ghulam Mustafa etc. shall stand dismissed with costs throughout.
ZC/B-21/LOrder accordingly.
