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Petitioner: MUHAMMAD TAHIR KHAN VS Respondent: SARDARAN BIBI
P L D 1997 Lahore 122
P L D 1997 Lahore 122 Before Ihsan-ul-Haq Chaudhry and Abdul Hafeez Cheema, JJ.
Rana MUHAMMAD TAHIR KHAN and 19 others---Appellants
versus
Mst. SARDARAN BIBI and others---Respondents
Regular First Appeal No.91 of 1990, heard on 24th May, 1995. ,
(a) 'Registration Act (XVI of 1908)---
----S. 33--- Word "resides" as used in S.33, Registration Act, 1908--- Meaning, scope and import of---Word "resides" being capable of different meanings, Court should try to find out intention of Legislature in framing a particular provision in which such word is used---Meanings which would help to attain the objection in view of Legislature, should be assigned to word "resides" --Object of use of word "resides" was that Legislature wanted to put restraint and exclude element of fraud, forgery, undue influence and duress in alienation of immovable property---Where one claimed to reside at ' L' he must either own immovable property or should have business, or industry or service or job or admission in educational institution at L-=-Mere visit, casual or for recreation or sight seeing or just going to place to visit friend or relative would not be covered by term "resides".--[Words and phrases].
Sarat .Chandra Basu v. BijoyChand Mahatab Maharaja Dhiraj Bahadur of Burdwan AIR 1937 PC 46; Totaram Krishna Patil v. Mt. Rahimat Bi and others AIR 1937 Nag. 227; (Seth) Kanhaya Lal represented by Seth Hanuman Parashad and another v. The National Bank of India Ltd. Delhi AIR 1923 PC 114; Sri Sri Sri Kishore Chandra Singh Deo v. Babui Ganesh Prasad Bhagat and others AIR 1954 SC 316; Prem's Legal Disctionery; El is Bibi v. George Mashih PLD 1978 Lah. 1072; Mst. Balqis Begum v. Manzoor Hussain PLD 1962 (W.P.). Lah. 929; lmdad Ali Malik v. The Settetnent Commissioner (Policy). Lahore and another PLD 1962 (W.P.) Lah. 502; Syed Haider Shan v. Mukhtar Hussain Shah and others PLD 1963 (W.P.).. Lah. 548, Mst. Parveen v. Mst. Jamsheda Begum and another PLD 1983 SC 227; Sikandar Shah and another v . Mst. Bibs Fatima PLD 1964 (W.P.) Pesh. 140; Sardar Khan v. Regional Election Commissioner, Lahore and 2 others PLD 1966 (W.P.) Lah. 390; Ch. Akhtar Hussain and 2 others v. Election Commissioner of Azad Jammu and Kashmir. Muzaffarabad and 4 others PLD 1990 ,Azad J&K 61; Muhammad Qasim v. Bashir Ahmad and 12 others PLD 1991 Azad J&K l; Muhammad Sharif v. Border Area Committee 1988 CLC 2247(2); Qurban Hussain and 2 others, v. Hukam Dad PLD 1984 SC (AJ&K) 157; Atta Muhammad and others v. Mst. Mehtab Bibi and another 1985 SCMR 144; Lal Baz and another v. Gulab 1989 CLC 8; Muhammad Aslam v. Mst. Gulraj Begum 1989 SCMR 1 and Ziauddin Siddiqui v. Mrs. Rana Sultana and another 1990 CLC 645 ref.
(b) Powers of Attorney Act (VII of 1882)---
---S. 4--- Registration Act (XVI of 1908), S.33---Power of Attorney Authentication ---Mode of---Authentication of power of attorney was not merely attestation but would imply that person authenticating must satisfy himself as to identity of executor and factum of execution--- Defect in procedure followed by Registrar and his lack of jurisdiction being two different things, it would be a case of lack of jurisdiction, where person not entitled to do so, had presented document for registration or where there was lack of territorial jurisdictions or presentation was out of time then such case would not be covered by S. 33, Registration Act, 1908---Executant of general power of attorney having not been identified by .any proper person and same having been .registered out of territorial jurisdiction of Sub-Registrar, same was not legally registered document.--[Power of attorney].
Ma Pwa May v. Chettiar Firm AIR 1929 PC 279 rel.
Qurban Hussain and 2 others v. Hukam Dad PLD 1984 SC (AJ&K) 157 and Wali Muhammad Chaudhari and others v. Jamal-Uddin Chaudhari AIR 1950 Cal. 524 ref. ..
(c) Contract Act (IX of 1872)---
---S. 188---Principal and agent--Sale-deed executed on behalf of principal by a person holding power of attorney who was not authorised to execute sale-deed---Effect---Where sale-deed executed by attorney was in excess of alleged authority given to such attorney, same was liable to be struck down on that score alone.
(d) Civil Procedure Code (V of 1908)
---O. XII, R. 6 & S. 96---Alleged sale-deed executed by attorney on behalf of vendor was challenged being in excess of authority---Trial Court set aside such sale-deed---Application moved on behalf of minor plaintiffs that their share in property in question, should remain with defendants--- Such application being derogatory to interest of minors, guardian ad litem of such minors could not bind them and no decree could be passed to the extent of minor's share in terms of O. XII, R.6, C.P.C.
(e) Registration Act (XVI of 1908)--
---S: 33---Authentication of power of attorney--- Illegal authentication of such document by Sub-Registrar---Effect---High Court on coming to conclusion that Trial Court had rightly not relied upon such document which had been illegally authenticated by Sub-Registrar (Naib Tehsildar) found him at least guilty of gross misconduct and ordered sending copy of judgment to Member (Revenue), Board of Revenue for initiating disciplinary proceedings against him---High Court directed that. proceedings against said official be finalised by specified date and report submitted to Registrar of High Court.
Ch. Khurshid Ahmad and Rana Abdul Rahim for Appellants
Sardar Asif Saeed Khan Khosa, Haji Gulzar Hassan and Muhammad Arif Raja for Respondents.
Dates of hearing: 21st 23rd and 24th May, 1995.
JUDGMENT
ISHAN-UL-HAQ CHAUDHRY, J.--The facts relevant for the decision of this R.F.A. are that Sultan Ali owned land measuring 10 Kanals 7 Marlas comprising of Killa Nos.23/2; 24/2 and Suqare No.16 of Chak No.213/RB within Municipal Limits of Faisalabad, which was sold by respondent No.3 as his General Attorney vide sale-deeds Exhs.P4 to P15. The respondent filed a suit for possession and declaration to the effect that General Power of Attorney in favour of Rana Muhammad Tahir defendants Nos.3 and 12 sale deeds Exhs.P4 to P15 executed by him in favour of defendants Nos.4 to 20 are illegal, fraudulent and void for failure of consideration. The appellants resisted the suit on legal as well as factual plane. The learned trial Court accordingly framed following issues:--
"(1) Whether the plaintiffs have no locus standi and cause of action? OPD.
(2) Whether the suit is not maintainable in its present form? OPD.
(3) Whether the suit is bad for misjoinder of causes of action? OPD.
(4) Whether the suit cannot proceed in view of preliminary objection No.5? OPD.
(5) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction, if so, what is the correct valuation? OPD.
(6) Whether the defendants are entitled for special costs, if so,, to what amount? OPD.
(7) Whether the plaintiffs are entitled to the possession of the suit land and the impugned general power of attorney dated 10-11-1982 and the subsequent sales in favour of the defendants are illegal, void and without jurisdiction and based on fraud? OPP.
(8) Relief."
2. The plaintiffs examined Muhammad Akhlaque Anwar as P.W.1, I Ghulam Muhammad as P.W.2, Abdul Razzaq as P.W.3, Muzaffar Ahmed, I Advocate as P.W.4, Muhammad Younas as P.W.5, and Zulfiqar Ali, General' 113 Attorney of the plaintiff appeared as P.W.6, while Muhammad Akram, Special Attorney of Mst. Fazal Bibi as P.W.7. On the other hand, defendants Nos. l to 3 I examined Muhammad Siddique as D.W.1, Muhammad Arshad as D.W.2, Nazir I Ahmad as D.W.3, Irshad Ahmad as D.W.4, Faqir Muhammad as D.W.5, Rana Muhammad Tahir as defendant No.3, as D.W.6, Abdul Habib as D.W.7, Ijaz Hussain as D.W.8, Muhammad Latif as D..W.9 and Tanvir Akhtar, defendant No. l as D.W.10, while defendants Nos.4 to 20 examined Syed Ghulam Abbas as D.W.11, and closed their side. The trial Court after hearing arguments decreed the suit vide judgment and decree dated 3-5-1990. Hence present appeal, which was admitted to hearing and notices were issued to the respondent, who have appeared and contested the appeal.
3. The learned counsel for the appellants argued that the general power of attorney Exh.Dl (also Exh.P3) was Validly registered by the Sub-Registrar, Gojra as Sultan Ali was temporarily residing in Chak No.248/GB at the relevant time. The learned counsel in this behalf has referred to section 33 as well as sections 28, 29, 30 and 32 of the Registration Act, 1908 and in support of his arguments relied on the decisions reported as Sarat Chandra Basu v. Bijoy Chand Mahatab Maharaja Dhiraj Bahadur of Burdwan (AIR 1937 Privy Council 46), Totaram Krishna Patil v. Mt. Rahmat Bi and others (AIR 1937 Nagpur 227), (Seth) Kanhaya Lal since deceased (now represented by Seth Hanumen Parashad and another) v. The National Bank of India, Limited Delhi (AIR 1923 Privy Council 114) and Sri Sri Sri Kishore Chandra Singh Deo v. Babu Ganesh Prasad Bhagat and others (AIR 1954 SC 316).
It is added that temporary residence of Sultan Ali was fully proved by the statement of D.W.2. It is argued that the trial, Court Totally ignored the cross-examination of both P.Ws and D.Ws while recording its findings. The third submission is that the plaintiffs have failed to make specific allegations as is clear from paras. 5, 6 and 7 of the plaint and no evidence was led to prove the same. The fourth submission is that there was no evidence whatsoever of collusion and misrepresentation. The fifth submission is that defendants Nos.4 to 20 were bona fide purchasers, for consideration. It is added that sale price was .paid by them to defendant No.3, who deposited the same in the account of the Sultan Ali, the owner. The sixth submission is that the power of attorney and sale-deeds were registered documents and presumption of truth is attached to the same. The plaintiffs miserably failed to rebut this presumption.
4. On the other hand. the learned counsel for the respondents argued that mere visit or going to a place would not make one resident of that place. It is explained with reference to Prem's Legal Dictionary that the word 'reside' implies something more than stay or visit while 'residence' does not mean where one spends only a day or two when he has got place of residence elsewhere. The learned counsel argued that he could not lay his hands on a precedent interpreting .word 'resides' used in section 33 of the Registration Act, 1908 but he has cases pertaining to law of pre-emption, Election Laws, Family Laws, Settlement and Border Area Committee. In this, behalf, the learned counsel relied on Elis Bibi v. George Mashih (PLD 1978 Lahore 1072), Mst. Balqis Begum v. Manzoor Hussain (PLD 1962 (W.P.) Lahore 929), Imdad Ali Malik v. The Settement Commissioner (Policy). Lahore and another (PLD 1962 (W.P.) Lahore 502), Syed Haider Shah v. Mukhtar Hussain Shah and others (PLD 1963 (W.P.) Lahore 548), Mst. Parveen v. Mst. Jamsheda Begum and another (PLD 1983 SC 227), Sikandar Shah and another v. Mst. Bibi Fatima (PLD 1964 (W.P.). Peshawar 140), Sardar Khan v, Regional Election Commissioner, Lahore and 2 others (PLD 1966 (W.P.). Lahore 390), Ch. Akhtar Hussain and 2 others v. Election Commissioner of Azad Jammu and Kashmir. Muzafarabad and 4 others (PLD 1990 Azad J&K 61), and Muhammad Qasim v. Bashir Ahmad and 12 others (PLD 1991 Azad J&K 1) and Muhammad Sharif v. Border Area Committee (1988 CLC 2247(2). The learned counsel argued that while interpreting or assigning meanings to the word 'reside' the main consideration should be that the purpose of law is not defeated. He submitted that the purpose of use of word 'reside' was to defeat fraud and in this behalf the learned counsel has referred to- Qurban Hussain and 2 others, v. Hukam Dad (PLD 1984 SC (AJ&K) 157). The next submission is that no presumption is attached to a document, which has not been registered in accordance with legal requirements. In this behalf, the learned counsel has referred to Atta Muhammad and others v. Mst. Mehtab Bibi and another (1985 SCMR 144), Qurban Hussain and 2 others (supra), Lal Baz and another v. Gulab represented by,Legal Heirs (1989 CLC 8), Muhammad Aslam v. Mst. Gulraj Begum (1989 SCMR 1) and Ziauddin Siddiqui v. Mrs. Rana Sultana and another (1990 CLC 645). It is argued with reference to sections 32(c) and 33 of the Registration Act that the general power of attorney EXh.DI in favour of defendant No.3 was not a legal and valid document, therefore, the sale-deeds executed on the force of it were void, ab initio and illegal. It is added that inference is legal evidence and Courts are well within their right to draw its inference from the facts on record. There is nothing wrong with the inference drawn by the learned trial Court until it is shown that there was nothing on record: to support . It is submitted that the land was to be sold with the. prior approval of Sultan Ali. It is added that the appellants were fully conscious of this face and for that reason D.W.6 deposed that the deals were struck by Sultan Ali himself but this plea is falsified by the statement of Sultan Ali under section 164, Cr.P.C. recorded on 12-12-1982, wherein he stated that he was still owner of the land, whereas according to the sale-deeds the entire land had been sold within two days on 20/22-11-1982. It is argued that the plea that the plaintiffs pestaced Sultan Ali, who was compelled to go to Gojra is falsified by Abtalnama Exh. P2 (cancellation of power of attorney) in favour of respondent No. 1, wherein it was written that respondent No. l is working against his interest and he apprehends mischief at his hands. The learned counsel added that there is chain of circumstances starting with cancellation deed dated 30-3-1978, the abduction of Sultan Ali resulted in filing of W.P. No.3273/83 for registration of case, the failure of the police to proceed with the matter due to influence of Zahid Sarfraz, the then Federal Minister, moving of Crl. Org.155-W/82; then registration of a criminal case on 12-12-1982, the filing of civil suit for injunction against the defendants Nos.l to 3 restraining them from depriving Sultan Ali of his property, production of Sultan Ali and recording of his statement under section. 164 of Cr.P.C., refusal of the Magistrate to get him medically examined and ultimately an application for the post-mortem of dead body because the plaintiffs alleged that Sultan Ali has been murdered and had not died natural death. It is added that right from beginning to the end Mr. Zahid Sarfraz, a local political leader, who at the relevant time was also a Federal Minister held a pivotal position and who also shared in the gains made by respondents Nos. l and 2 as is clear from the fact that he secured land in the name of his four children defendants No. 12 to 15 (minors. It is argued that the defendants Nos.4 to 20 are close associates of defendants Nos.', to 3 gild they are not bona fide purchasers for consideration and in any case they have failed to prove this plea.
5. The learned counsel for the appellants while summing up the arguments referred to C.M.1-C/94, according to which; the respondents Nos.3, 4, 6 to 8 conceded, the claim of the appellants and submitted that they have no objection to the appeal being accepted to' the extent of one-half share of Mst. Batool, their predecessor-in-interest.' It is submitted that this is an admission in terms of Order XII, Rule 6, C.P.C., therefore, the appeal is liable to be accepted at least partially.
6 On the other hand, the learned counsel for the respondents vehemently denied having made this application. Manzoor Ahmad-respondent No.3 is present in Court. He .also denied having moved this application. The learned counsel for the respondents submitted that this application was manoeuvred by the appellants to boost up their claims and respondents in their reply, which is supported by their affidavits, have categorically denied the same.
7. The applicants have also moved an application being C.M.560/90 for production of additional evidence. It is maintained that three documents mentioned in para. 7 of the application are certified, copies. It is added that presumption of truth is attached to the same and it would help this Court to come to a just conclusion. The learned counsel for the respondents submitted that the application is without justification because the appellants were provided with fullest opportunity to produce evidence whatsoever they wanted to adduce and in any case it is for this Court to determine whether these documents are required for complete and factual adjudication of the matter.
8. We have given our anxious consideration to the arguments of the learned counsel for the parties, gone through the record, relevant provisions of Registration Act, Civil Procedure Code and precedent cases. Issue No.7 is the main issue and it can conveniently be split up into two parts. The first pertains to legality of the General Power of Attorney dated 10-11-1982 available on the record as Exh.D.l and the other to the execution, registration of sale-deeds Exhs.PA to P.15 and payment of consideration. Before proceeding any further it is worthwhile to refer to section 33 of the Registration Act, 1908 (hereinafter to be referred as Act of 1908). The same reads as under:--
"33.--(1) For the purpose of section 32, the following Power-of-Attorney shall alone be recognized. namely:--
(a) If the principal at the time of executing the power-of-attorney resides in any part of Pakistan in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose District or Sub-District the principal resides:
(b) If the principal at the time aforesaid resides in any other part of Pakistan, a power-of-attorney executed before and authenticated by any Magistrate:
(c) If the Principal at the time aforesaid does not reside in Pakistan a power-of-attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Pakistan Consul of Vice Consul or representative of the Federal Government:
Provided that the following persons shall not be required to attend at any registration office or Court for the purpose of executing any such power-of-attorney, as is mentioned in clauses (a) and (b) of this section, namely:- (i) Persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend;
(ii) Persons who are in jail under civil or criminal process; and
(iii) Persons exempt by law from personal appearance in Court.
(2) In the case of very such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of-attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.
(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf."
The fate of this point depends on the interpretation of the word 'resides". The learned counsel for the appellants maintained that even temporary -evidence is sufficient for the purpose of registration of power of attorney. While he learned counsel for the respondents maintained that mere visit to a place or in somewhere would not bring such a place within the term "resides".
9 Now before proceeding any further with the discussion we may refer to he cases relied by the learned counsel for the parties on this point:
(1) Sarat Chandra Basu: It was held that the word 'resides' does not exclude temporary residence and the Courts below including High Court Calcutta concluded that at the relevant time the appellant was residing at Hazaribagh;
(2) Totaram Krishna Patil: It was a case where words ' at the time aforesaid' used in section 33(1)(c) of Registration Act, came for interpretation. The same is not relevant to the present controversy;
(3) (Seth) Kanhava Lal: Again this case is not relevant because in the case it was only question of presumption of correctness;
(4) Sri Sri Sri Kishore Chandra Singh Deo: In this case it was held that whether the stay of the executant was of casual nature or whether it amounted to residence must depend on all the circumstances proved and is essentially a question of fact;
(5) Mst. Parveen: The word "residence" as used in N.-W.F.P. Pre emption Act came for interpretation. In this case, Imdad Ali Malik, Syed Haider Shah (supra) on, the Settlement side and Mst. Balqis Begum as well as Elis Bibi (supra) under the Family Laws while Sikandar Shah and another (supra) again a case under Pre-emption Laws, were considered and following rules for resolving controversy over meanings of words and phrases were formulated:--
(a) That no general rule can be laid down either on legal or jurisprudential basis which may be applicable in each and every case of such a controversy;
(b) The context in which the relevant word or phrase is used is highly important. If it is in regard to procedural aspect, the meaning might have a shade different from its meaning in a provision dealing with a substantive right;
(c) The words themselves as also the phraseology selected by the Legislature has been given considerable importance but ,he underlying intention was also given, if not more, at least equal importance;
(d) It may normally be not possible to apply the meaning of residence given in a particular case to another, case under a different statute;
(e) In each case of this type it would be necessary for the Court to determine the correct connotation subject to the aforenoted aspects and then to give a finding of fact whether residence so interpreted of an individual has been established on the material available in the case:"
(6) Muhammad Oasim: It, was a case under Election Laws. The words/expression "ordinarily resides" came for interpretation. It was held that it signifies more than casual dwelling at a certain place;
(7) Ch. Akhtar Hussain and 2 others: Similarly, in this case the words 'resident' and 'ordinary resident' came for interpretation and it was held that the resident means, who ordinarily resides in a particular area or was owner or in possession of a_ dwelling house or other immovable property in an electoral area;
(8) Sardar Khan: This was again a case under Election Laws and the word 'resident' was interpreted; arid
(9) Muhammad Sharif: This was a case under West Pakistan Border Area Registration, 1959 and the word 'reside' came for interpretation and it . was held that it would not be sufficient to bring allottee's case within purview of exception whereunder personal residence of allottee could be dispensed with as permission given to the allottee to reside and settle down abroad cannot be termed as exemption.
10. It is clear from the above cases that word 'reside' is capable of different meanings. It is also clear that the Court should try to find out the intention of the Legislature in framing a particular provision in which the word is used. The meanings which help to attain the object in view of the Legislature are to be assigned. The object of use of word resides is very obvious. The Legislature wanted to put a restraint and exclude the element of fraud and forgery, undue influence and duress in the alienation of immovable property. The moral fibre has gone so low that now a citizen, who is backed by a politician can make a bureaucrat to do whatever he likes. Therefore, if the interpretation put by the learned counsel for the appellants is accepted the same will defeat the object of the Legislature and facilitate fraudulent transactions because then it would not be difficult for anybody to find out a Faqir Muhammad in nook and corner of the country for illegal registration of a power of attorney. The purpose has been clearly discussed in the case reported as Qurban Hussain v. Hukam Dad PLD 1984 . SC (AJ&K) 157). The relevant portion of the judgment reads as under:--
"8 ... ... ...We are in respectful agreement with the majority view on the aforesaid point and venture to add further that object of provisions contained in sections 32(c) and 33 of the Registration Act is to exclude the element of fraud and forgery in transactions regarding alienation of the immovable property. Thus, in our view, there is hardly any logic that although an agent must possess power-of-attorney duly executed and authenticated and as envisaged…
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