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Initializing Secure Chambers
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Initializing Secure Chambers
Petitioner: MITHA KHAN VS Respondent: NAFEES BEGUM
1998 S C M R 2342
1998 S C M R 2342
[Supreme Court of Pakistan]
Present: Saiduzzaman Siddiqui and Fazal Ilahi Khan, JJ
Haji MITHA KHAN---Petitioner
versus
Mst. NAFEES BEGUM and 2 others---Respondents
Civil Petition No. 175 of 1995, decided on 5th September, 1995.
(On appeal from the judgment of Peshawar High Court dated 8-12-1994 passed in Civil Revision No. 186 of 1994).
Contract Act (IX of 1872)---
----S. 188---Constitution of Pakistan (1973), Art. 185(3)---Transfer of property on basis of general power of attorney---Attorney's power to transfer principal's property---Extent---Defendant's contention was that power of attorney executed by principal, authorized the attorney to transfer property in question, through sale, mortgage or exchange, therefore, transfer by attorney was valid; that Courts below bad wrongly drawn conclusion that attorney was not entitled to act under provisions of general power of attorney to effect transfer in respect of land which was acquired by principal subsequent to the date of execution of power of attorney and that such findings of Courts below were not sustainable-- Contentions raised by defendant would require examination---Leave to appeal to Supreme Court was granted to consider the same.
Bashir Ahmad Ansari, Advocate Supreme Court, Tanvir Bashir Ansari, Advocate Supreme Court (absent) and Ch Akhtar Ali, Advocate-on-Record for Petitioner.
Muhammad Munir Peracha, Advocate Supreme Court and Zahoor. Ahmed Qureshi, Advocate-on-Record (absent) for Respondents.
Date of hearing: 5th September, 1995.
ORDER
SAIDUZZAMAN SIDDIQUI, J.---The petitioner is seeking leave to appeal against the judgment of a learned Judge in Chambers of Peshawar High Court dated 8-12-1994 whereby Civil Revision Appeal filed by the petitioner against two concurrent judgments of the Courts below was dismissed.
The relevant facts of the case are that one Mst. Nafees Begum instituted Suit No.250/1 claiming ownership of Plot No.C/3502 situated in Dera Ismail Khan (hereinafter to be called the 'suit property' only). This plot was transferred by Sardar Muhammad Akbar Khan on the basis of registered power of attorney in favour of Qutubdin Khan son of Haq Nawaz. The said Qutubdin Khan son of Haq Nawaz sold this property to Haji Mitha Khan son of Haji Azam Khan (petitioner). The admitted position in the case is that registered power of attorney was executed in favour of Sardar Akbar Khan by Mst. Nafees Begum on 26-,7-1969 whereas suit property was acquired by Mst. Nafees Begum on 19-3-1975 through registered deed. The learned Judge in Chambers although came to the conclusion that the contention of plaintiff/respondent that the power of attorney executed by her in favour of Sardar Muhammad Akbar on 26-7-1969 was a forged, fictitious and fraudulent document, was not substantiated and that the said power of attorney was validly executed in his favour yet the learned Judge came to the conclusion that under the said power of attorney, the attorney could not transfer the property which was acquired by Mst. Nafees Begum about 6 years after the execution of the power of attorney. The learned counsel for the petitioner has invited our attention to the following provision in the power of attorney executed by Mst. Nafees Begum in favour of the attorney:--
On basis of the above stipulation in the power of attorney it is contended by the learned counsel for the petitioner that the conclusion reached by the learned Judge in Chambers that the attorney was not entitled to act under the provisions of the above general power of attorney to effect the transfer in respect of the suit property acquired by Mst. Nafees Begum (respondent No. 1) subsequent to the date of execution of power of attorney is contrary to the terms of power of attorney and is, therefore, not sustainable in law.
The contention raised by the learned counsel for the petitioner requires examination and we, accordingly, grant leave to appeal to consider the same. Parties are directed to maintain status quo till decision of the appeal.
A.A./M-139/S Leave granted.