A review of recent case law on Power of Attorney in Pakistan

While a power of attorney is a powerful legal instrument, its execution, nature, and the rights it bestows need to be understood thoroughly. Both the granter and the holder should be clear about its implications to avoid future disputes. The interplay of the Contract Act, 1872, and the Civil Procedure Code, 1908, further accentuates the complexities surrounding power of attorney in legal disputes.

Below is a review of recent case law on Power of Attorney in Pakistan :

In the case of 2017 CLC 48 ISLAMABAD, the court examined the validity of an agreement to sell executed by an attorney. The central issue was the cancellation of the power of attorney by the defendant after six years, without providing a reason. The court’s view was that the defendant could not cancel a registered general power of attorney without valid grounds. The general power of attorney was deemed irrevocable, and the defendant’s testimony was not deemed reliable.

In 2016 YLR 240 KARACHI-HIGH-COURT-SINDH, the court addressed the revocability of a general power of attorney upon the death of a partner. The case revolved around the dissolution of a partnership and the rights of partners based on powers of attorney. The plaintiff’s stance was that the power of attorney he held was irrevocable and protected under Section 202 of the Contract Act, 1872. The court found that the irrevocable general power of attorney, which was never challenged, remained valid.

Several citations from 2015 PLD 212 SUPREME-COURT revolve around a dispute over a general power of attorney’s validity. A significant aspect of these cases was the plaintiff’s delay in challenging the power of attorney, which was viewed critically by the court. In one of the judgments, the court dismissed the suit for being time-barred, as it was deemed primarily for cancellation of documents and not merely possession. In the minority view, however, the suit was seen as one for possession and was deemed valid.

The case of 2015 YLR 2298 KARACHI-HIGH-COURT-SINDH highlighted that a principal executing a general power of attorney does not have the power to revoke it if it’s irrevocable. The case underscores the importance of understanding the legal bindings of a power of attorney and the rights and obligations it bestows upon the attorney.

The case of 2012 MLD 931 LAHORE-HIGH-COURT-LAHORE reinforced the irrevocability of a general power of attorney executed with interest under Section 202 of the Contract Act, 1872. The court emphasised that such a power of attorney remains binding even after the death of the one who executed it.

The Contract Act 1872 provides an intricate framework for understanding the dynamics of agency. It elucidates the procedures and ramifications of the revocation of an agent’s authority, which is critical when considering the General Power of Attorney and Irrevocable Power of Attorney.

Principles Arising Out of the Power of Attorney Act 1882: A Close Look at Recent Cases

When it comes to understanding the intricacies and implications of the Power of Attorney Act 1882, judicial interpretations serve as a guiding light. By delving into recent cases, we can discern the principles that courts have upheld, clarified, or emphasized. Here’s a summary of the principles emerging from the Power of Attorney Act 1882, as referenced in the cited cases.

1. Irrevocability and Binding Nature of Power of Attorney

In the case of IRFAN JAVED vs. ADDITIONAL DISTRICT JUDGE, TOBA TEK SINGH (2023 MLD 483), a special oath was made by the petitioner’s counsel regarding the decision of a matter. It was highlighted that an offer made by a representative under a Power of Attorney can have binding effects, even if the principal later claims no specific direction was given (2023 MLD 483).

2. Interpretation and Scope of Power of Attorney

Mst. SHAHNAZ AKHTAR vs. Syed EHSAN UR REHMAN (2022 SCMR 1398) elucidated that even if a Power of Attorney is irrevocable, its contents and the powers it grants are pivotal. The case stressed the importance of the specific provisions in the document, and how any manipulation or forgery can undermine its validity (2022 SCMR 1398).

3. Attestation and Proof Requirements

The case of BAHADUR KHAN vs. KARIM GUL (2022 CLC 1670) emphasized that a Power of Attorney, especially one creating financial liabilities, needs to be attested by at least two witnesses and proved as required under the Qanun-e-Shahadat, 1984 (2022 CLC 1670).

4. Validity and Limitations of Power of Attorney in Property Transactions

The importance of understanding the limitations of a Power of Attorney in property transactions was highlighted in MUHAMMAD QASEEM vs. Mst. FARIDA KHAN (2022 CLC 1670). The case underscored that a general Power of Attorney doesn’t inherently provide the authority to sell or alienate the principal’s property unless explicitly stated (2022 CLC 1670).

5. Timing and Pendency: The Rule of Lis Pendens

In Mst. FIRDOS NAZIA AJMAL vs. Mst. IQBAL BEGUM (2019 CLCN 4), the court elaborated on the rule of lis pendens, emphasizing that a transaction during the pendency of a suit related to the property in question is subject to the final judgment of the court (2019 CLCN 4).

6. The Onus of Proving the Validity of Power of Attorney

NANKI BAI vs. Haji MUHAMMAD ASHRAF QURESHI (2019 CLC 1599) emphasized the onus on beneficiaries to prove the validity of a Power of Attorney, especially when the execution or contents of the document are disputed. The necessity of attesting witnesses, especially in the context of property sales, was underlined (2019 CLC 1599).

7. Execution and Implications of Power of Attorney

The case of Mrs. SAMINA QASIM vs. Mst. JAMILA NAHEED (2018 PLD 564) revolved around the execution of a sub-lease under a Power of Attorney. It highlighted that a Power of Attorney is essentially an instruction from the principal to the agent and doesn’t necessarily leave room for the agent’s discretion. The nature and scope of the Power of Attorney determine the actions the agent can undertake on the principal’s behalf (2018 PLD 564).

In conclusion, the Power of Attorney Act 1882 provides a robust framework for the delegation of powers from a principal to an agent. However, the nature, scope, and implications of these powers are often subjects of legal contention. The aforementioned cases provide valuable insights into the judicial understanding and interpretation of the Act, ensuring that the rights and responsibilities of both the principal and the agent are upheld.

Relevant Provisions of the Contract Act 1872

Termination of Agency (Section 201)
This section details the various circumstances under which an agency is terminated. It encompasses the voluntary actions of the principal or the agent, like revocation or renunciation, and unavoidable circumstances like death or unsoundness of mind. In the context of a GPA, it’s of paramount importance to understand that the principal can revoke the power given to the agent at any point, unless there’s an agreement stating otherwise. However, an IPA poses complexities. An IPA, by definition, is meant to persist and is not easily revocable. The stipulation in this section about the agency’s termination upon the death or unsoundness of the principal or agent can be pertinent for both GPA and IPA unless expressly stated otherwise in the document.
Agent’s Interest in the Subject Matter (Section 202)
This is a pivotal section when considering the IPA. The section ensures that if the agent has an interest in the property which is the subject of the agency, the agency cannot be terminated to the detriment of that interest. The illustrations provided clearly resonate with situations where an IPA might be in play. The agent’s vested interest, as outlined here, ensures that the principal cannot revoke the authority without due regard to the agent’s interests, making the power ‘irrevocable’ in certain scenarios.
Revocation of Authority (Sections 203 and 204)
Section 203 allows the principal to revoke the agent’s authority unless it has been exercised in a manner that binds the principal. However, Section 204 limits this revocation after the authority has been partially exercised. This interplay is essential for GPAs, where the principal might reconsider the delegation of power. For IPAs, once the agent has acted in a manner that binds the principal, especially in areas where the agent has a vested interest, revocation becomes complicated.
Compensation for Revocation or Renunciation (Section 205)
This section ensures that if there’s an implicit or explicit agreement for the agency to continue for a specific duration, any unwarranted termination would lead to compensation. This could be applicable for both GPA and IPA if there’s a stipulated duration, ensuring that neither party acts against the spirit of the agreement without facing consequences.
Notice and its Effects (Sections 206 to 209)
These sections highlight the importance of communication in the agency relationship. Revocations and renunciations, whether expressed or implied, should be known to all involved parties. Any actions taken by the agent, in ignorance of the revocation, would bind the principal. This applies uniformly to both GPA and IPA.
Sub-agents (Section 210)
The termination of the agent’s authority would also terminate the authority of any sub-agents they might have appointed. This cascading effect is crucial for principals to understand, especially when a chain of delegation is in place through GPAs or IPAs.

The Nature of Power of Attorney:

In the case of SADIA SIDDIQUI vs. ADNAN ANDALAIB SIDDIQUI (2023 CLC 887 KARACHI-HIGH-COURT-SINDH), a dispute arose between a mother and son over the ownership of a house. The son claimed ownership based on an oral gift and a general power of attorney given by the mother. The court emphasised the importance of evidence and the need for a proper trial to ascertain the true nature of the property. It highlighted that the onus was on the mother to show that the power of attorney was properly revoked and the subsequent acts by the son were void from the outset.

Interplay with Other Laws:

The Power-of-Attorney Act (VII of 1882) and Contract Act (IX of 1872) frequently interact with the disputes over power of attorney. For instance, in the case of Mst. SHAHNAZ AKHTAR vs. Syed EHSAN UR REHMAN (2022 SCMR 1398 SUPREME-COURT), the court examined an irrevocable general power of attorney where a plot was transferred by the attorney. The court emphasised the importance of the sequential clauses in the power of attorney and how it conferred specific powers. This case highlighted the significance of the provisions of the Contract Act, 1872, particularly Section 202 which deals with the termination of an agency.

Transfer of Property Through Gift by an Attorney:

In the trio of cases involving IJAZ BASHIR QURESHI vs. SHAMS-UN-NISA QURESHI (2021 SCMR 1298 SUPREME-COURT), the Supreme Court consistently held that an agent cannot transfer the immovable property of the principal through a gift based on any power of attorney. This stands even if the power of attorney contains powers to transfer the property through a gift. The court highlighted that such powers are only for completing formalities of the gift, which must be made by the owner or principal themselves.

Determining Irrevocability:

In one of the IJAZ BASHIR QURESHI vs. SHAMS-UN-NISA QURESHI cases (2021 SCMR 1298 SUPREME-COURT), the court made it clear that merely mentioning “irrevocable” in a power of attorney does not make it so. It must pass a specific test to be deemed irrevocable.

Validity of Transfer Through Power of Attorney:

The case of BATUL HUSSAIN DHARAMSEY vs. HUSSAIN DHARAMASEY (2021 CLC 1121 KARACHI-HIGH-COURT-SINDH) emphasised that a power of attorney is not an instrument of transfer concerning the right, title, or interest in an immovable property. Even an irrevocable general power of attorney doesn’t transfer the title to the agent.

Sanctity of Registered Documents:

In the case of S.K. SHAH vs. JAMALUDDIN (2017 SCMR 626 SUPREME-COURT), the court upheld the sanctity of registered documents. When a tenant denied the relationship of landlord and tenant, the court observed that monthly rent had been collected by the attorney, showing the attorney had possession of the property without any protest from the owner.

Implications for Future Transactions:

From the aforementioned cases, it becomes clear that while the power of attorney is a powerful tool, it is not without its limitations. Those entering into transactions based on powers of attorney, whether general or irrevocable, should exercise caution. They should be aware of their rights, responsibilities, and potential legal implications.

Citation Name: 2005 YLR 2846 LAHORE-HIGH-COURT-LAHORE
The case revolves around the allegation of forgery. The petitioner asserted that his signatures on an alleged agreement to sell were forged using computer scanning techniques. The respondents countered by producing the original agreement to sell, accompanied by an original irrevocable general power of attorney. The Court took specimen signatures and thumb impressions of the petitioner and compared them with the ones on the agreement. The report from the F.I.A. Handwriting Expert confirmed the genuineness of the petitioner’s thumb impressions on the agreement. Given this evidence, the High Court declined to interfere in the matter.

Citation Name: 2005 YLR 2668 LAHORE-HIGH-COURT-LAHORE
This case concerns a suit for declaration and permanent injunction. The plaintiffs’ mother was a bona fide purchaser of a property, based on an agreement to sell and irrevocable general power of attorney executed by the original owner. However, the property was later acquired by the Authority for housing. The Authority cancelled the original owner’s allotment without notifying the plaintiffs. The Courts below dismissed the suit. The key issue highlighted was the principle of natural justice. The judgments and decrees of the lower Courts were deemed void as they violated the principles of natural justice due to the lack of proper notice to the plaintiffs.

Citation Name: 2003 SCMR 1555 SUPREME-COURT
The case pertains to the irrevocable power of attorney and the protection of possession. The attorney in question had paid the entire consideration amount for a property, along with government dues, and was granted a registered general power of attorney coupled with interest. This power of attorney was rendered irrevocable by virtue of Section 202 of the Contract Act, 1872. Additionally, the attorney’s possession was protected under Section 53-A of the Transfer of Property Act, 1882. The Supreme Court refused to interfere with the High Court’s decision, prioritising substantial justice over hyper-technical arguments.

Citation Name: 2002 YLR 3496 LAHORE-HIGH-COURT-LAHORE
This case involves a suit for the specific performance of a contract. The defendant, an oustee of Islamabad Capital, entered into an agreement with the plaintiff. The defendant executed a general power of attorney in favour of the plaintiff, who then got land allotted on the defendant’s behalf. Instead of transferring the land to the plaintiff as per the agreement, the defendant transferred it to another person. The Trial Court favoured the plaintiff, but the Appellate Court viewed the agreement as void. The case centred on the agency coupled with interest, making it irrevocable under Section 202 of the Contract Act, 1872. The Appellate Court’s judgment was set aside, and the case was remanded for reconsideration based on the evidence.

Understanding the Nuances of the ‘Irrevocable Power of Attorney’ in Pakistani Jurisprudence

The concept of ‘Power of Attorney’ is a prevalent and sometimes contentious one in legal systems across the world. In the context of Pakistani law, particularly the judgments emanating from the High Courts of Karachi and Lahore, there have been intriguing developments on this front, especially concerning the ‘irrevocable’ nature of certain powers of attorney.

The Territorial Jurisdiction of the Courts
In the case of RAIS AKHTAR vs. MUHAMMAD AZIZUDDIN (1993 MLD 2555 KARACHI-HIGH-COURT-SINDH), the court dealt with the territorial jurisdiction concerning a contract related to land. The pivotal point was where the irrevocable general power of attorney was executed. The court held that the place of execution of the power of attorney, coupled with other related events like payment and receipt issuance, determined the jurisdiction of the court.

Distinguishing between Abandoned and Acquired Property
In QAMAR JEHAN vs. GOVERNMENT OF PAKISTAN (1993 MLD 1104 KARACHI-HIGH-COURT-SINDH), the court grappled with the declaration of a house as ‘abandoned property’. The crux was an irrevocable power of attorney that the petitioner claimed she had secured before a certain date. The court ruled that given the timeline of events, the property couldn’t be classified as abandoned.

The Revocability of the Power of Attorney
A pertinent case, ANIS FATIMA vs. ANWAR HUSSAIN (1992 CLC 2137 LAHORE-HIGH-COURT-LAHORE), delved deep into the irrevocable nature of a general power of attorney under the Contract Act 1872, specifically Section 202. The court held that the principal, after granting an irrevocable power, couldn’t revoke it, especially when certain terms were embedded in the deed.

The Fine Line between Injunctions and Contractual Rights
In the case of MUHAMMAD RIAZ vs. FEDERAL CONSTRUCTION CORPORATION LTD (1987 CLC 345 KARACHI-HIGH-COURT-SINDH), the court had to distinguish between the power of attorney, a contractual agreement, and the implications of a mandatory injunction. The judgement reiterated that the concept of ‘property’ in the Contract Act 1872 wasn’t limited to tangible assets but also intangible ones like contractual interests. The court emphasised the rare circumstances under which mandatory injunctions were granted and stressed the importance of protecting the financial interests of the parties involved. The power of attorney, especially its irrevocable form, has been a focal point of several legal disputes in Pakistan. The interplay with other legal provisions, primarily from the Contract Act 1872 and the Code of Civil Procedure 1908, adds layers of complexity to its interpretation. From the cases analysed, it’s evident that issues often revolve around property rights, contractual obligations, and the balance between the rights of the grantor and grantee. As jurisprudence evolves, so will the interpretations, but the essence remains – the power of attorney is a potent tool, and its irrevocability is not to be taken lightly.

The Complex Dynamics of ‘Irrevocable Power of Attorney’ in Pakistani Courts

The instrument known as the ‘Power of Attorney’ has been a recurrent theme in Pakistani jurisprudence. Particularly, its irrevocable form often finds itself at the heart of legal disputes. To deepen our understanding, we shall explore some cases from the Islamabad, Karachi, and Lahore High Courts that shed light on how the courts approach these matters, intertwined with provisions from the Contract Act 1872 and the Civil Procedure Code.

The Intricacies of Validity and Cancellation
In the case of MUHAMMAD AJAIB vs. ZAHIDA ARSHAD (PLJ 2017 Islamabad High Court 1), the pivotal issue was the validity of the cancellation of an irrevocable general power of attorney. The court underscored the importance of establishing the circumstances surrounding the execution of such a power. Additionally, the court highlighted that documentary evidence typically takes precedence over oral testimony.

Determining the Nature of an Agreement
The case of Messrs SUNLEY DEVELOPERS PRIVATE LIMITED vs. Messrs MUMAIR ASSOCIATES (PLJ 2009 Karachi High Court 205) dealt with a suit for specific performance of an agreement to sell. The core contention was whether the agreement was a mere ‘agreement to sell’ or a complete conveyance of land, accentuated with an irrevocable general power of attorney. The court held that there seemed to be no cause of action for filing of the suit by the plaintiff.

Revisiting Decisions Based on Entire Evidence
In Nawab MASROOR ALI KHAN vs. SAID AKBAR and another (PLJ 2002 Lahore High Court 1231), the court was faced with a situation where an irrevocable power of attorney was executed with specific conditions. The case was remanded to the First Appellate Court, indicating the necessity to assess the entire body of evidence before arriving at a verdict.

Distinguishing Between Power of Attorney and Will
The case of MUHAMMAD SIDDIQ vs. MUSHTAQ ALI and 5 others (PLJ 2008 Karachi High Court 121) delved into the distinction between an irrevocable power of attorney and a will. The court opined that while a power of attorney is strictly construed and confers only expressly given or necessarily implied authority, there’s a marked difference between such a power and a will. The judgement also emphasised the importance of ensuring the validity of the cancellation of a registered general power of attorney.The courts in Pakistan have approached disputes surrounding irrevocable and general power of attorney with a keen eye for detail, often delving into the nuances of the Contract Act 1872 and the Civil Procedure Code. From the selected cases, it’s evident that factors like the nature of agreements, validity of cancellations, and the precedence of documentary evidence play a crucial role in the court’s decisions. As the legal landscape continues to evolve, these interpretations serve as a guiding light for practitioners and stakeholders alike.

Legal Principles Concerning Validity and Revocation of General Power of Attorney

The power of attorney, especially when it is general, serves as a potent instrument in property transactions. Courts often have to discern between genuine transactions and those tainted with fraud or misrepresentation.

Proof and Integrity of Transactions

In the case of PERVAIZ AKHTAR vs. Mst. FARIDA BIBI (2023 PLD 628 SUPREME-COURT), the Court’s majority view emphasized the need for substantial evidence of sale through a GPA, particularly when the sellers are illiterate or vulnerable, like Pardanashin women. The mere existence of a GPA does not, in and of itself, confirm a sale. There must be independent evidence, and any absence thereof, especially when the parties have prior business relationships, can cast a shadow over the transaction’s integrity.

Jurisdiction and Capacity of Revenue Authorities

In Mst. HUSSAN ARA (WIDOW) vs. Mst. SURAYYA BEGUM DECEASED (2023 CLC 663 PESHAWAR-HIGH-COURT), it was held that revenue authorities do not have the jurisdiction to cancel a registered GPA on grounds of fraud or misrepresentation. Such challenges must be presented before a competent civil court.

Locus Standi of Attorney Holders

As per MCB BANK LIMITED vs. TANVEER SPINNING AND WEAVING MILLS (2023 CLD 491 LAHORE-HIGH-COURT-LAHORE), even an attorney holder, if duly empowered through a special power of attorney, can institute a suit, reinforcing the importance of the scope and specificity in the drafting of powers of attorney.

Irrevocability and the Sanctity of a Power of Attorney

The case of SADIA SIDDIQUI vs. ADNAN ANDALAIB SIDDIQUI (2023 CLC 887 KARACHI-HIGH-COURT-SINDH) underlines that an irrevocable general power of attorney can’t be lightly set aside. Close familial relationships, existing living arrangements, and the history of the property play a role in determining the validity of actions under such a power.

Interplay with the Contract Act 1872 and Civil Procedure Code

Contract Act and Irrevocability: Section 202 of the Contract Act 1872, as illustrated in Mst. SHAHNAZ AKHTAR vs. Syed EHSAN UR REHMAN (2022 SCMR 1398 SUPREME-COURT), provides protection to irrevocable powers of attorney. Such powers, when not duly revoked or cancelled by the principal, have significant legal standing, especially when third-party interests are involved.

Limitation Act: It’s imperative to act promptly. In MUHAMMAD DIN vs. The DEPUTY SETTLEMENT COMMISSIONER (2022 SCMR 1481 SUPREME-COURT), the Court held that delays in challenging actions can render claims time-barred under the Limitation Act, even if there are grounds for dispute.

Nature of Disputes Involving Power of Attorney

From the aforementioned cases, it’s evident that disputes often arise due to:

Allegations of Fraud and Misrepresentation: Parties often challenge the validity of transactions conducted through a GPA on grounds of fraud.

Vulnerability of the Principal: When the principal is illiterate, elderly, or otherwise vulnerable, transactions conducted under a GPA come under increased scrutiny.

Familial Relationships: Given that many property transactions occur within families, the intertwining of personal relationships with legal agreements often results in disputes.

Delay in Action: As seen in several cases, delays in challenging or affirming actions taken under a GPA can have legal repercussions, especially in terms of the statute of limitations.

Interplay of Other Provisions and Their Implications

Contractual Nature of Power of Attorney: The essence of a power of attorney lies in the contractual relationship it establishes between the principal and the attorney. The Contract Act 1872, which governs contractual relationships in Pakistan, provides a framework for understanding the rights, obligations, and liabilities of parties to a power of attorney. For instance, the principles of free consent, competence of parties, and lawful consideration apply to the creation of a power of attorney. Any violation of these principles can render the power of attorney void or voidable.

Civil Procedure Code: The Civil Procedure Code (CPC) lays out the procedural aspects of litigating disputes related to powers of attorney. For instance, the CPC provides guidance on how such suits should be instituted, who can be made parties, the kind of evidence that can be produced, and the manner in which such evidence can be evaluated. As seen in the cases, procedural lapses or non-compliance with the CPC can have significant implications on the outcome of disputes related to powers of attorney.

Trends in Disputes Over Powers of Attorney

Based on the presented cases, several trends emerge in the litigation landscape over powers of attorney:

Ambiguity in Execution: A recurring theme in many disputes is the ambiguity surrounding the execution of the power of attorney. Whether it’s the mental state of the principal at the time of execution (as seen in the case of Mst. MUKHTAR BEGUM vs. Mst. MUMTAZ ASGHAR) or the clarity of terms in the power itself, ambiguities often lead to litigation.

Discrepancies in Consideration: Differences in the agreed-upon consideration and the actual amount transacted, especially in sales of property through powers of attorney, frequently become grounds for litigation. This is evident in the case of PERVAIZ AKHTAR vs. Mst. FARIDA BIBI, where a stark difference in sale considerations became a pivotal point of contention.

Fraudulent Activities: Allegations of fraud, especially in the execution or use of powers of attorney, are common. These allegations often revolve around forgery, misrepresentation, and undue influence.

Familial Disputes: As property transactions often involve family members, the intertwining of personal relationships and legal intricacies can lead to disputes. The close familial ties can both be a cause for genuine trust or, unfortunately, a window for potential exploitation.

Recommendations for Avoiding Disputes

Given the complexity of issues surrounding powers of attorney and the frequency of disputes, some recommendations for individuals and legal practitioners include:

Clarity in Drafting: It’s essential to ensure that the power of attorney is drafted with utmost clarity. The rights, obligations, and limitations of the attorney should be clearly laid out.

Regular Review: Periodically review the power of attorney, especially if it’s a general one. This helps in ensuring that it remains relevant and aligned with the principal’s current intentions.

Verification of Principal’s State: At the time of execution, ensure that the principal is in a sound state of mind and is not under any undue influence. If possible, this should be attested by independent witnesses.

Open Communication: Especially in transactions involving family members, open communication can prevent misunderstandings and disputes. It’s crucial for all involved parties to be on the same page regarding the terms and execution of the power of attorney.

Lis Pendens and Transfer During Pendency of Litigation: As highlighted in 2022 CLC 1670 ISLAMABAD, the rule of lis pendens (pendency of litigation) is a critical principle in property law. Any transfer of property subject to an ongoing litigation is deemed to have notice of the pendency of that suit. A bona fide purchaser of the property during the pendency of a suit will be affected by the final judgment, irrespective of their lack of knowledge of the ongoing litigation.

Validity of Transfer by an Attorney: The case 2021 SCMR 1298 SUPREME-COURT underscores that an attorney, even with a power of attorney, cannot transfer the principal’s immovable property through a gift. The powers granted by a general power of attorney can only be exercised for completing codal formalities of actions initiated by the principal.

Forgery and Fraudulent Transfers: A recurring theme in the cases presented, notably in 2022 PCrLJN 70 KARACHI-HIGH-COURT-SINDH, is the forgery of general power of attorney documents and the fraudulent transfer of properties based on such forged documents. The courts tend to view these acts seriously, and such fraudulent transfers can be nullified, especially when the forgery is proven. However, the onus of proof often lies on the party alleging the forgery, and evidence such as expert opinions on handwriting can become crucial.

Notice and Knowledge of Litigation: As highlighted in 2022 CLC 735 KARACHI-HIGH-COURT-SINDH and other cases, a significant point of contention is whether a party had knowledge of ongoing litigation or disputes concerning a property. The principle of lis pendens operates on the presumption that any party dealing with a property under litigation is deemed to have knowledge of the litigation. This presumption can significantly affect subsequent transactions involving the said property.

Lack of Specific Authority in General Power of Attorney: From the cases, it’s evident that a general power of attorney should clearly stipulate the powers granted to the attorney. Ambiguities can lead to disputes, as seen in 2021 SCMR 1298 SUPREME-COURT. Without a clear mandate in the power of attorney, actions like transferring property through gifts can be deemed invalid.

Time Limitations and Delays: The time factor plays a crucial role in many legal disputes, including those involving powers of attorney. In some cases, such as 2021 SCMR 1401 SUPREME-COURT, challenges to property transfers must be made within a reasonable time after the aggrieved party comes of age or gains knowledge of the transaction. Delays can jeopardise the validity of legal claims.

The Essence of an Irrevocable Power of Attorney: In the case of IJAZ BASHIR QURESHI vs. SHAMS-UN-NISA QURESHI (2021 SCMR 1298 SUPREME-COURT), the court laid down a crucial test for determining the irrevocability of a power of attorney. It was held that merely mentioning “irrevocable” in a power of attorney does not make it so unless it passes specific tests. Notably, when an agent has an interest in the property which is the subject matter of the agency, it cannot be terminated to the prejudice of such interest, absent any express contract.

Validity of the Power of Attorney in Banking: In BAHAWALPUR COTTON COMPANY vs. UNITED BANK LIMITED (2021 CLD 434 LAHORE-HIGH-COURT-LAHORE), the court dealt with the validity of power of attorneys in favour of persons filing suits for recovery. It was held that the power of attorneys in question, which authorized persons to file recovery suits on behalf of the bank, were competently executed.

Forgery and Fraudulent Transfers Reiterated: The case of Syed ARIF HUSSAIN SHAH vs. SAKINA BIBI (2021 YLR 677 LAHORE-HIGH-COURT-LAHORE) reaffirms the courts’ stance on fraudulent transfers based on forged powers of attorney. The court underscored that fraudulent alienation cannot be protected, and bona fide purchasers from a forged attorney cannot claim rightful ownership.

Registration and Valid Execution are Crucial: The case of KHURSHEED BEGUM vs. FATEH MUHAMMAD KHAN BAJARANI (2021 YLR 578 KARACHI-HIGH-COURT-SINDH) highlights the importance of proper registration and execution. An unregistered power of attorney, especially one missing signatures of witnesses and with unpaid stamp duty, lacks legal sanctity. Furthermore, the court emphasised that a document proposing to create a financial obligation should be witnessed by at least two male witnesses.

Evidence and Verification: In MUHAMMAD NAZIR AWAN vs. IMTIAZ FATIMA RIZVI (2021 CLC 2051 KARACHI-HIGH-COURT-SINDH), the court reiterated the importance of evidence and verification. The plaintiff’s possession based on an unregistered and dubious power of attorney was deemed illegal.

Estoppel and Compromise Decrees: The case of Syed KHALILUDDIN vs. RAFIQ AHMED QANDHARI (2021 CLC 877 KARACHI-HIGH-COURT-SINDH) underscores the principle of estoppel. A party, having accepted the terms of a compromise decree, cannot later challenge the same.

The Role of Registration in Transfer of Title: In BATUL HUSSAIN DHARAMSEY vs. HUSSAIN DHARAMASEY (2021 CLC 1121 KARACHI-HIGH-COURT-SINDH), the court reaffirmed that a power of attorney is not an instrument of transfer regarding the right, title, or interest in an immovable property. Even an irrevocable general power of attorney does not transfer title to the agent.

Proof of Possession and Title: Syed ABDUL WAHAB vs. VIIIth ADDITIONAL DISTRICT AND SESSION JUDGE, KARACHI (2021 MLD 395 KARACHI-HIGH-COURT-SINDH) emphasises the need for tangible evidence to prove possession. A mere claim based on a general power of attorney without evidence of possession was deemed insufficient.

Sanctity of Registered Documents: In the case of Mst. HASSAN JAN vs. Mst. BUSHRA ZUBAIR (2021 MLD 1689 ISLAMABAD), the court reasserted the sanctity attached to registered documents. The plaintiffs failed to produce credible evidence to support their claims, leading to the dismissal of their appeal.

Validity and Proof: Lastly, SHER ZAMAN vs. KARIMULLAH BAIG (2021 MLD 447 Gilgit-Baltistan Chief Court) highlights the importance of proof, especially in cases where the validity of a power of attorney is in question. The appellants failed to produce adequate evidence, resulting in the dismissal of their claims.

Irrevocability is Not Merely a Label: It’s crucial to understand that merely labeling a power of attorney as ‘irrevocable’ doesn’t make it so. There’s a stringent test which it must pass, especially when the agent himself has an interest in the property concerned.

Banking and Power of Attorney: The banking sector’s reliance on powers of attorney, especially in recovery suits, underscores its importance. However, the validity of such documents, especially when they precede certain financial transactions, can be a ground of contention.

The Danger of Forgeries: A significant legal issue arises from the forgery of powers of attorney. The courts have consistently held that fraudulent transfers, even to bona fide purchasers, cannot stand.

Significance of Proper Execution: The proper execution, registration, and payment of necessary duties on a power of attorney are paramount. Any lapses in these areas can invalidate the document.

Evidence is Key: As with many legal disputes, the evidence is critical. In disputes involving powers of attorney, the onus often falls on the party asserting rights based on the document to prove its authenticity and the claims arising from it.

Estoppel and Compromise: Once a party has accepted the terms of a compromise, especially one that involves acceptance of a power of attorney’s genuineness, they may be estopped from challenging it later.

Title Transfers and Power of Attorney: A recurring theme in the judgements is that a power of attorney, even if termed ‘irrevocable’, does not in itself transfer title or ownership. The actual transfer requires a separate deed of conveyance.

Civil Disputes and Proof: Some disputes, while based on a power of attorney, are essentially civil in nature. Here, the evidence of possession and title becomes crucial, and a mere claim based on a power of attorney may not suffice.

Registered Documents Hold Weight: The courts have consistently given weightage to registered documents. In disputes, the sanctity of a registered power of attorney or related document can be pivotal.

Beware of Dubious Claims: The courts are vigilant against dubious claims based on powers of attorney. Parties must be cautious and ensure that their claims, especially when based on such documents, are backed by solid evidence.

The Danger of Forgeries: A significant legal issue arises from the forgery of powers of attorney. The courts, like in the 2021 YLR 677 LAHORE-HIGH-COURT-LAHORE case, have consistently held that fraudulent transfers, even to bona fide purchasers, cannot stand.

Significance of Proper Execution: The proper execution, registration, and payment of necessary duties on a power of attorney are paramount. Any lapses in these areas can invalidate the document, as shown in the 2021 YLR 578 KARACHI-HIGH-COURT-SINDH case.

In Al-Haj Sheikh ABDUL HAFEEZ v. SUHAIL ZAMAN (2020 CLD 505 KARACHI-HIGH-COURT-SINDH), the court dealt with a suit property transferred via a registered gift. The defence and a bank claimed that the property was mortgaged via a general power of attorney. The court underscored that when a document is repudiated by its signatory, the party claiming under such a document bears the burden to prove its authenticity. This case also highlighted the responsibility of banks in conducting due diligence before sanctioning financial facilities based on such powers of attorney.

The case of Haji MUHAMMAD ASHRAF QURESHI v. NANKI BAI (2020 CLC 1599 KARACHI-HIGH-COURT-SINDH) revolved around eviction proceedings. The court emphasized that the validity of a Power of Attorney rests between the principal and the attorney. As long as the Power of Attorney complies with the Powers-of-Attorney Act, 1882, third parties, such as tenants in this case, cannot claim any rights based on it.

Another significant case is GHULAM NABI QURESHI v. GOVERNMENT OF PAKISTAN (2020 CLCN 45 KARACHI-HIGH-COURT-SINDH). Here, a constitutional petition was filed on behalf of a deceased person through her attorney. The court highlighted the applicability of the Civil Procedure Code to constitutional petitions and emphasized that any orders obtained through fraud or misrepresentation are void ab initio. Importantly, the general power of attorney did not confer any right on the attorney to transfer the principal’s property in his name.

The MOIZ ABBAS v. Mrs. LATIFA (2019 SCMR 74 SUPREME-COURT) case revolved around the authority of an attorney. In this case, a property owner executed a special power of attorney for renting out his property. However, later it was contended that the attorney had sold the property based on an oral sale agreement. The court concluded that the power of attorney did not grant the attorney any right to sell the property, and any such transaction without express authority was invalid.

In the Mst. KHALIDA BIBI v. MUHAMMAD NAEEM (2019 CLC 1204 PESHAWAR-HIGH-COURT) judgment, the court dealt with the validity of a mutation based on a general power of attorney. The plaintiff argued that he neither executed the power of attorney nor consented to the attestation of mutation. The court ruled that the burden of proof lies with the person challenging the validity of a document on the grounds of fraud and misrepresentation. In this instance, the court observed that the plaintiff had not provided enough evidence to challenge the mutation.

The Mst. FIRDOS NAZIA AJMAL v. Mst. IQBAL BEGUM (2019 CLCN 4 PESHAWAR-HIGH-COURT) case brought to light the strict requirements for proving a power of attorney, especially when transferring immovable property. The court emphasized that a general power of attorney creating interest in any immovable property must be registered and attested by two witnesses. Furthermore, if the execution of the power of attorney is disputed, the beneficiaries must establish its validity.

Another noteworthy case is NIAMAT ALI v. GULAM JILIANI (2019 PLD 717 LAHORE-HIGH-COURT-LAHORE). Here, the court discussed the principle of estoppel and its applicability in cases concerning the power of attorney. The plaintiff’s predecessor did not challenge the mutation of the suit property based on a general power of attorney during his lifetime. The court inferred that such conduct could be deemed as an acknowledgment, invoking the principle of estoppel.

The case of MUHAMMAD ARSHAD v. HAQ NAWAZ (2019 YLR 958 LAHORE-HIGH-COURT-LAHORE) case highlighted that an attorney cannot transfer property on behalf of the principal to his kith and kin without specific permission. The court stressed that an agent’s powers are strictly derived from the authorization granted by the principal.

From the NAWAB v. PEHLWAN KHAN (DECEASED) (2019 CLC 811 LAHORE-HIGH-COURT-LAHORE) case, it’s clear that there is a distinction between a power to sell and the power to enter into an agreement to sell. While the act of selling completes the transaction, an agreement to sell binds parties to future obligations. An attorney, unless explicitly authorized, cannot bind the principal to such future commitments. In this case, the attorney did not have the express authority to enter into an agreement to sell the property. The court further observed that if an attorney is transferring property to close relatives, it could be a ground for suspicion and would require special consent from the principal.

When examining these cases in totality, several legal principles emerge:

Validity of Power of Attorney: The courts consistently uphold the sanctity of the power of attorney. Any deviation or action beyond the expressed powers granted in the document is deemed invalid.
Burden of Proof: The onus often lies on the person who either challenges the validity of a document based on allegations of fraud and misrepresentation or the person who benefits from it.
Limitation: Several cases emphasize the importance of timely legal actions. Any delay in challenging an action or transaction can lead to complications and may even result in the loss of the right to legal recourse.
Specific Authorization: A general power of attorney doesn’t grant carte blanche authority. Every significant action, especially those related to immovable property, requires specific authorization.
Principle of Estoppel: This principle plays a crucial role in several cases. If a person, by their conduct, acknowledges or accepts a certain position, they may later be prevented (or “estopped”) from denying it.

Intertwining with these principles are provisions from the Contract Act 1872, which deals with the general principles of contracts and agency. The Civil Procedure Code provides the procedural framework, and the Qanun E Shahadat (Law of Evidence) is pivotal in determining the burden of proof and the authenticity of documents.

In many of the disputes, there’s a recurring theme of property rights and financial transactions. These cases underscore the importance of due diligence and caution when dealing with powers of attorney. Given the significant legal implications, it’s essential to be clear and explicit when drafting such documents and to be vigilant when dealing with attorneys, especially in transactions involving valuable assets.

In conclusion, while a power of attorney is a powerful legal tool, it comes with significant responsibilities and potential pitfalls. It’s essential for parties to understand its scope and limitations and for courts to ensure that its misuse is curtailed. This not only protects the interests of individuals but also upholds the integrity of legal transactions in the broader societal context.

In MOHSIN ALI vs. SAFDAR HUSSAIN BIRLAS (2019 CLC 1951 KARACHI-HIGH-COURT-SINDH), the court dealt with the validity of a power of attorney in light of its subsequent rectification. Under Art.89 of Qanun-e-Shahadat, 1984, a power of attorney, when attested by the Pakistan Mission at London, carries validity. This case demonstrates that any lacuna in the power of attorney can be subsequently cured, provided its authenticity remains undisputed.

However, the courts have also highlighted the limitations of a general power of attorney. In SHAMIM BEGUM vs. AZIZUL HASAN KHAN (2019 CLC 1557 KARACHI-HIGH-COURT-SINDH), the court touched upon the distinction between an agreement of sale and a power of attorney. While the landlord had an irrevocable general power of attorney coupled with a sale agreement showing consideration, the tenant only had an agreement of sale. This case exemplifies that a mere agreement of sale, without being fortified by a power of attorney, may not suffice in establishing a stronger claim over property.

The MAZHAR SAYEED vs. ATIF MAZHAR (2019 MLD 2016 KARACHI-HIGH-COURT-SINDH) case sheds light on the complexities of an oral gift. Here, the plaintiff’s continued control over the property through a general power of attorney and a “No Objection Certificate” nullified the gift deed, suggesting that a mere gift deed without an actual transfer of possession might not stand legal scrutiny.

A crucial aspect of the power of attorney is its genuineness. In Haji Raja MUBARAK HUSSAIN vs. MASOOD ALAM (2019 MLD 61 ISLAMABAD), the court asserted that the mere production of a photocopy of a document doesn’t suffice its evidentiary value. In essence, the original document’s presence is paramount to ascertain the authenticity of signatures or thumb impressions.

In the case of MUMTAZ-UL-HAQ vs. NATIONAL ACCOUNTABILITY BUREAU (2018 SCMR 510 SUPREME-COURT), the court emphasized the need for evidence in proving allegations. Here, the accused allegedly issued illegal allotment orders based on unregistered general powers of attorney. The court held that such allegations need substantive proof through evidence.

Property disputes involving power of attorney are common. In Mst. KHADIJA KAUSAR vs. NAZIR AHMED (2018 MLD 1503 LAHORE-HIGH-COURT-LAHORE), the court held that a gift by an attorney to his close fiduciary relations without the principal’s explicit permission is contrary to Section 215 of the Contract Act 1872. This principle was further echoed in SHAHZAD ADIL vs. QAMAR-UN-NISA (2018 MLD 959 LAHORE-HIGH-COURT-LAHORE), where the court highlighted that beneficiaries bear the burden of proving the execution of their documents, especially when the authenticity is challenged.

In the case of S.K. SHAH vs. JAMALUDDIN (2017 SCMR 626 SUPREME-COURT), the court upheld the validity of a registered sale deed executed by an attorney on the strength of an irrevocable power of attorney. The crux here was that the attorney had de facto control and possession of the property without any resistance from the owner. This case illustrates the legal principle that once a power of attorney, especially an irrevocable one, is executed and vested with certain rights, the courts may uphold actions taken under it, especially when there is acquiescence from the principal.

Conversely, MUHAMMAD RASHID vs. AKHTER ALI KHAN (2017 MLD 2030 PESHAWAR-HIGH-COURT) tackled the issue of a gift by an attorney. The court highlighted that a valid gift requires offer, acceptance, and delivery of possession. In this case, the gift was found invalid due to the absence of these elements. This underpins the principle that while a POA can grant wide-ranging powers, it can’t override foundational legal requirements, such as those for a valid gift.

The maxim “Delegatus non potest delegare” – a delegate cannot further delegate – was central to Haji NEK AMAL vs. Dr. SUHAIL BALUCH (2017 MLD 711 PESHAWAR-HIGH-COURT). This principle was invoked to invalidate actions taken beyond the scope of the original POA, reiterating that a power of attorney must be strictly construed, and the attorney must act within its explicitly defined bounds.

The case of BANK OF PUNJAB vs. POLY PACK PVT. LIMITED (2017 CLD 1285 LAHORE-HIGH-COURT-LAHORE) serves as a reminder that a registered document, like a power of attorney, is per se admissible in evidence, reinforcing its legal weight.

However, GHULAM MUHAMMAD vs. MEMBER (JUDICIAL-III) BOARD OF REVENUE PUNJAB, LAHORE (2017 YLR 495 LAHORE-HIGH-COURT-LAHORE), underscores the principle that a POA, even if registered, cannot be utilised for personal gains or in a manner disadvantageous to the principal.

The case of MUKHTAR AHMAD vs. MUHAMMAD AMEEN (2017 MLD 845 LAHORE-HIGH-COURT-LAHORE) sheds light on the sanctity of the personal act of gifting. It emphasises that sentiments of love and affection, crucial for a valid gift, cannot be conveyed or expressed through an attorney.

In the case of Syed ABBAS ALI SHAH vs Ch. MOHAMMAD ZAHEER (2017 CLCN 55, LAHORE-HIGH-COURT-LAHORE), the court dealt with the contentious issue of a consent decree based on a general power of attorney. The defendant conceded to the plaintiff’s claims, leading the Trial Court to pass a decree. However, the defendant later claimed deception and sought to challenge the judgement. The court clarified that an appeal under S. 96, C.P.C. does not lie against a consent decree. This case underscores the significance of S. 12 of the Civil Procedure Code and the importance of clarity and genuineness in transactions involving power of attorney.

Moving to the dual cases involving Mst. ASIYA BIBI and MUHAMMAD YOUSAF (2017 CLCN 41, LAHORE-HIGH-COURT-LAHORE), the court tackled the burden of proof regarding the execution of a general power of attorney. The cases highlight the rigour required in establishing the authenticity of oral gifts and the criticality of the Doctrine of Marz-ul-Maut. The court emphasised that beneficiaries of disputed power of attorney bear the onus to provide robust evidence of its genuine execution.

In SOHAIL ADEEB BACHANI vs State (2017 PLD 415, KARACHI-HIGH-COURT-SINDH), the misuse of power was evident when an accused signed a general power of attorney when he no longer held the office, pointing towards a land scam. This case showcases the vigilant approach the courts take in identifying and penalising corrupt practices related to power of attorney.

The case of MANZOOR ALI BHATTI vs Mrs. FARZANA BEGUM (2017 YLRN 201, KARACHI-HIGH-COURT-SINDH) touched upon the issue of illegal dispossession from property. The court observed that the mere possession of a registered general power of attorney does not conclusively establish ownership, especially in the face of competing claims.

A significant case from Islamabad, DILSHAD AHMED KHAN vs NIAZ AHMAD ZAHID (2017 CLC 712), highlighted the court’s flexibility. It allowed for an amendment in the plaint to include the relief of specific performance of an agreement based on a general power of attorney, emphasising that such an amendment does not change the nature or cause of the suit.

The cases of MUHAMMAD AJAIB vs ZAHIDA ARSHAD (2017 CLC 48, ISLAMABAD) and MASIH-UD-DIN KHAN vs IFTIKHAR-UD-DIN (2016 CLCN 144, PESHAWAR-HIGH-COURT) reiterate the principle that a power of attorney can be revoked at any time, either orally or in writing. The courts also stressed the need for clear communication between the principal and the attorney and the importance of acting within the specified limits of the power of attorney.

Mst. AKHTAR FATIMA vs. BAKHAT RAFEE SHAH (2016 CLC 887 LAHORE-HIGH-COURT-LAHORE): This case establishes the principle that a general power of attorney should be explicit in its terms. Ambiguity or vagueness isn’t permissible. The attorney cannot alienate property to close relatives like mother, father, brother, or wife without special permission from the principal. Furthermore, any agreement creating future obligations needs proper attestation in accordance with the Qanun-e-Shahadat (10 of 1984).

ABDUL MAJEED vs. Mst. IRSHAD BEGUM (2016 CLC 248 LAHORE-HIGH-COURT-LAHORE): This case reiterated that a general or special attorney cannot go beyond the terms of the power of attorney. Fraud, especially if evident in the proceedings, can vitiate even solemn proceedings or orders.

See also Upgradation of Civil Servants

NASEER AHMAD vs. YOUSAF MURTAZA MIRZA (2016 CLC 160 LAHORE-HIGH-COURT-LAHORE): A significant point highlighted here is the burden of proof. A subsequent purchaser claiming to be a bona fide purchaser must first prove that their transaction was legal. The case also emphasises the importance of a power of attorney being in effect and not revoked.

Haji JAMIL AHMAD vs. Mst. SHAHNAZ PARVEEN (2016 PCrLJN 40 LAHORE-HIGH-COURT-LAHORE): This case emphasises that for charges like cheating and using a forged document, substantial evidence against the accused is imperative. The mere creation of a forged general power of attorney without its use to deceive doesn’t constitute an offence under sections like 420 & 471 of P.P.C.

MUHAMMAD NAWAZ vs. MUHAMMAD KHAN (2016 CLCN 62 LAHORE-HIGH-COURT-LAHORE): A pivotal principle stated here is that a general power of attorney stands automatically terminated upon the death of the principal. Furthermore, any decree against a deceased individual is null in the eyes of the law.

MEHFOOZ AKHTER vs. ASKARI LEASING LIMITED (2016 CLD 102 KARACHI-HIGH-COURT-SINDH): This case reinforces the power an attorney has, provided it’s registered. However, any act beyond the scope of the power of attorney, without permission from the principal, is invalid.

MUHAMMAD MUQEEM SOHAIL BUILDERS AND DEVELOPERS vs. SHAMSHER ALI (2016 YLR 240 KARACHI-HIGH-COURT-SINDH): An irrevocable power of attorney, especially one that’s coupled with an interest, remains valid unless specifically revoked. It also emphasises the importance of adhering to the proper procedure in cases of disputes.

GHULAM MUSTAFA vs. NATIONAL INDUSTRIAL RELATIONS COMMISSION, FULL BENCH (2016 PLC 532 KARACHI-HIGH-COURT-SINDH): This case underscores the importance of the judicial process. While the court won’t micromanage organisational affairs, it will intervene if unfair labour practices are suspected, especially if rooted in the misuse of a power of attorney.

In the case of Syed Hussain Naqvi vs. Mst. Begum Zakara Chatha (2015 SCMR 1081), the court upheld the validity of a general power of attorney and an agreement to sell. The court emphasized the importance of witness testimony and found that the vendor had failed to challenge the authenticity of the documents effectively. This case demonstrates that when a party has acted in accordance with the power of attorney and has witnesses to support their claims, the courts are likely to uphold the validity of the actions taken under the power of attorney.

The case of Amjad Ikram vs. Mst. Asiya Kausar (2015 SCMR 1) highlights the importance of clear and consistent evidence. The court dismissed the plaintiff’s claim due to contradictions in the evidence and a lack of clear proof of payment of the sale consideration. This case underscores the need for parties to ensure that their evidence is consistent and reliable, especially when challenging the validity of a power of attorney or the actions taken under it.

In Dr. Muhammad Javaid Shafi vs. Syed Rashid Arshad (2015 PLD 212), the court dealt with a suit for cancellation of a general power of attorney, sale agreement, and sale deed. The court highlighted the principle of estoppel, noting that the plaintiff’s silence and inaction over an extended period amounted to a waiver of his right to object. This case illustrates the importance of acting promptly to challenge the validity of a power of attorney or the actions taken under it.

Validity and Revocation of General Power of Attorney

From the cases presented, it’s evident that the courts take a meticulous approach when dealing with the validity and revocation of a general power of attorney:

In ABDUL SHAKOOR v. MUHAMMAD HANIF (2015 YLR 2202), the court underlined the implications of the death of a vendor in the context of a power of attorney. If a general power of attorney is automatically revoked upon the death of the principal, any actions taken under that power after the principal’s death can be declared null and void.
The case of HIDAYAT SHAH v. AMEER KHAN (2015 YLR 2298) reiterates the principle that a general power of attorney, unless expressly made irrevocable, is revocable by the principal. The authority granted to an agent can be withdrawn at any time unless specified otherwise.

Interplay of Contract Act 1872, Civil Procedure Code, and Qanun E Shahadat

The Contract Act 1872 plays a pivotal role in determining the validity of agreements. The principles of free consent, fraud, and misrepresentation, as outlined in the Act, are crucial in cases involving power of attorney.

The Civil Procedure Code (CPC) comes into play in procedural aspects, particularly Order I Rule 10 and Order XXII Rule 10, dealing with the addition or substitution of parties in a suit. As seen in the ABDUL SHAKOOR case, if an assignee doesn’t file an application for impleadment in proceedings, decisions against the assignor can bind the assignee.

The Qanun-e-Shahadat (Law of Evidence) governs the admissibility of documents and evidence. In the ZAFAR IQBAL v. MOULA DAD (2014 MLD 911) case, the court emphasized the need for the original document to be produced, highlighting the importance of Articles 75 and 76 which dictate conditions for secondary evidence.

Cases Involving Disputes over Power of Attorney

Several cases predominantly involve disputes over the authenticity, validity, and misuse of powers of attorney:

MUHAMMAD AMIR v. State (2015 YLR 1582) presents a scenario where the authenticity of a power of attorney becomes a pivotal aspect in criminal proceedings.

In HOUT KHAN v. SHMAN ALI alias SHAMSUDDIN (2015 MLD 1669), the power of attorney’s scope was questioned, emphasizing the importance of clear and specific authority in such documents.

HUMMA EJAZ v. Ms. FOZIA JABEEN (2015 CLC 1071) serves as a cautionary tale about the use of non-registered powers of attorney in property transactions, especially when dealing with vulnerable individuals.

Mst. ZAITOON BEGUM v. NAZAR HUSSAIN (2014 SCMR 1469) highlights the importance of consent and the necessity to ensure that the power of attorney was not obtained through deceit.

Validity of Gifts through Attorney (2014 CLC 513 PESHAWAR-HIGH-COURT):

A gift made through an attorney requires specific authorisation, and the donee should be a named and nominated individual. An attorney, even if granted a general power of attorney, cannot bestow property as a gift to any individual not designated by the principal. This case underscores the importance of specific authorisation in the realm of gifts through an attorney.

Admissibility of Finance Agreements (2014 CLD 1228 LAHORE-HIGH-COURT-LAHORE):

Even if a finance agreement does not comply with the requirements of Art. 17 of Qanun-e-Shahadat, 1984, it may still be considered in evidence by the Banking Court if corroborated by other supplementary documentation. This case highlights the significance of documentary corroboration in legal proceedings.

Power of Attorney and Compromise (2014 YLR 1986 LAHORE-HIGH-COURT-LAHORE):

A general power of attorney is valid if it was in effect when a compromising statement was made by the attorney. However, discrepancies between pleadings and proof are impermissible under the law. Also, any plea not raised in the initial pleadings cannot be entertained later.

Specific Performance of Contract (2014 MLD 1607 KARACHI-HIGH-COURT-SINDH):

A general power of attorney cannot be unilaterally revoked if it was granted for a consideration. The revocation is inoperative unless the other party is intimated about such revocation.

Validity of a Contract (2014 MLD 1216 KARACHI-HIGH-COURT-SINDH):

In terms of the Contract Act, 1872, an agreement that involves harm to another person’s property is not lawful. If no privity of contract exists between the parties, any agreement made without the consent of the true owner is void.

Specific Performance of Agreement to Sell (2014 MLD 342 KARACHI-HIGH-COURT-SINDH):

An irrevocable general power of attorney must be proven to enforce a specific performance. The party seeking performance should prove their readiness and willingness to uphold their end of the contract.

Protection for Illiterate Ladies (2013 SCMR 868 SUPREME-COURT):

An illiterate lady is accorded the same protection as a pardanashin lady. If she has been deceived or misrepresented, the burden of proof lies with the party asserting the validity of the documents.

Effect of Unsound Mind on Agreements (2013 SCMR 59 SUPREME-COURT):

Under the Contract Act, 1872, a person of unsound mind is not competent to execute a power of attorney. If such a person’s unsoundness is proven, any contract or agreement entered into on their behalf is void.

Freezing of Property (2013 PCrLJ 1797 PESHAWAR-HIGH-COURT):

For a property transaction to be deemed Benami, it needs substantial proof. Payment methods and original documents are crucial pieces of evidence.

Staying Criminal Proceedings Pending Civil Litigation (2013 PCrLJ 301 PESHAWAR-HIGH-COURT):

Normally, criminal proceedings should not be delayed due to pending civil litigation. However, if the criminal liability is evidently connected to the civil litigation, the criminal proceedings might be stayed.

Knowledge of Principal Essential: In the case of SHAHZADA AKHTAR vs. BANK ALFLAH LTD. (2013 CLD 416), the court highlighted the importance of involving and informing the principal (in this case, the owner of the mortgaged property). A mortgage deed executed by a GPA does not mean the attorney can act without the knowledge of the principal. The plaintiff bank’s failure to implead the appellant, the actual owner, was seen as a gross oversight.

Technicalities and Procedural Aspects: SHOAIB MUSHTAQ vs. MUHAMMAD QASIM (2013 CLC 487) underscores the need for precision in legal procedures. However, the court also opined that procedural rules in the Civil Procedure Code should not defeat the ends of justice. The mere absence of a concise statement in the plaint did not render the attorney incompetent.

Irrevocability of Power of Attorney: SARFARAZ AHMED vs. State (2013 MLD 183) sheds light on the irrevocability of a GPA. The court concluded that once a GPA is deemed irrevocable, any sub-power of attorney executed under it also inherits that irrevocability.

Competence and Deceptive Marketing: DHL PAKISTAN vs. [Not Mentioned] (2013 CLD 1014) elucidates that a complaint can be signed by anyone authorised by a company’s board or through a GPA. This reinforces the legitimacy and scope of GPAs in corporate complaints.

Pre-emption and Proper Execution of Talbs: In FARRUKH ALTAF vs. MUHAMMAD AFZAL (2012 YLR 1744), the court emphasised that certain rights, especially those personal in nature, must be expressly mentioned in a GPA for an attorney to exercise them. The mere holding of a GPA does not grant carte blanche authority.

Impact of Land Reforms and Specific Performance: Mst. NASEEM AKHTAR vs. ABDUL TAWAB (2012 SCMR 1526) delves into the intersection of land reforms and GPAs. Even if an attorney is authorised through a GPA, it does not override regulations that make certain transactions void, such as those in violation of Land Reforms Regulation, 1972.

Fraud and Misrepresentation: MUHAMMAD IBRAHIM vs. RASOOLAN BEGUM (2012 CLC 303) emphasises the onus on beneficiaries to prove the existence and authenticity of a GPA. The court also dealt with the credibility of an attesting witness and the importance of Article 79 of the Qanun-e-Shahadat.

Connotation of “General Power of Attorney”: Mian ASMAT SHAH vs. Mian FAIQ SHAH (2012 PLD 181) specifically focuses on the definition and scope of the term “general power of attorney”. The interpretation of this term is crucial as it often forms the crux of many legal arguments.

Validity and Revocation of General Power of Attorney

Fraudulent Transactions: In the case of DEFENCE HOUSING AUTHORITY, LAHORE CANTT. vs ASIF RIAZ (2012 MLD 1802), the court noted the possibility of a general power of attorney and registered sale deed being illegal, void, and a result of fraud. This highlights the importance of ensuring authenticity and legality when executing or dealing with such documents.

Irrevocability: The case of MUHAMMAD TAHIR NADEEM vs Syed QASIM ALI ZAIDI ZAFAR (2012 MLD 931) reinforces the concept of irrevocability in the context of power of attorney. If the owner willingly sells a property and simultaneously executes a general power of attorney, under Section 202 of the Contract Act 1872, it becomes irrevocable upon the death of the owner.

Position of the Attorney: As seen in the case of MUHAMMAD SARWAR KHAN vs SALAMAT ALI (2012 CLC 94), an attorney, once authorised, steps into the shoes of the executant. The executant cannot challenge the acts of his attorney, especially if the power of attorney provides explicit permissions.

Protection of Minors: YAR MUHAMMAD KHAN vs SAJJAD ABBAS (2012 PLD 115) highlights the importance of the protection of minors. A transaction executed during a person’s minority without proper permissions is void.

Duty of Verification: The case of MUHAMMAD SARWAR KHAN vs SALAMAT ALI (2012 CLC 94) underlines the duty of a buyer to verify the existence or validity of a general power of attorney before entering into an agreement.

Interplay of Contract Act 1872, Civil Procedure Code, and Qanun E Shahadat

Specific Relief Act: Several cases invoke the Specific Relief Act, illustrating its interplay with general power of attorney issues. This act provides remedies for specific situations, such as ensuring the execution of a specific act or preventing a specific act from taking place.

Civil Procedure Code: The Civil Procedure Code is frequently cited, especially when discussing the procedures for filing and hearing cases, framing issues, recording evidence, and the roles of trial and appellate courts.

Qanun E Shahadat: While not explicitly mentioned in the provided cases, the Qanun E Shahadat (Law of Evidence) plays a crucial role in determining the validity of evidence presented in cases involving general power of attorney.

Predominant Cases Involving Disputes over Power of Attorney

Most of the cases provided predominantly revolve around disputes related to property transactions done under a general or irrevocable power of attorney. These include:

Transactions done fraudulently or without proper verification.

Transactions involving minors or those not competent to make them.

Disputes arising from the death of the original owner after executing a power of attorney.

Disputes over whether a power of attorney is truly irrevocable.

Onus of Proof: One of the recurring principles is the onus of proof. In the case of NAHEED SIKANDER v. NAEEM IJAZ (2011 CLC 1479), the defendants failed to discharge the onus of proving the execution of a valid general power of attorney after the plaintiff denied its execution. This theme is also evident in SARDAR ALI v. Mst. SARDAR BIBI alias SARDARAN (2010 SCMR 1066) where the beneficiary of the power of attorney has the duty to prove its execution. Similarly, in ABDUL REHMAN v. GHULAM MUHAMMAD (2010 SCMR 978), the onus shifted to the defendant to prove the execution of the power of attorney after its denial by the plaintiff.

Fraud and Misrepresentation: The courts take a stern view against fraud and misrepresentation associated with the execution of a power of attorney. In the case of MUHAMMAD SHAFI v. MUHAMMAD IQBAL (2011 MLD 857), the court set aside the decision of the lower court due to fraud and misrepresentation, especially given that the plaintiff was blind.

Scope of Power of Attorney: The cases also highlight that the scope and purpose of the power of attorney are crucial. In JAMEEL AHMAD PARACHA v. Mst. SHIREEN GUL (2010 SCMR 470), the court noted that the power of attorney was related to the plot and not the house, which was significant in the decision-making.

Revocation and its Implications: Once a general power of attorney is revoked, any acts done by the attorney thereafter are rendered invalid. In LIAQUAT ALI v. ADDITIONAL SESSIONS JUDGE, ISLAMABAD (2011 PLD 14), the court held that after the revocation of the general power of attorney, the attorney had no authority to lease out the premises.

Interplay with Other Laws: The Contract Act 1872 and the Civil Procedure Code also come into play, especially when determining the validity of actions taken under a power of attorney. For instance, in UNILEVER PAKISTAN FOODS LIMITED v. CHAIRMAN, ENVIRONMENTAL TRIBUNAL (2010 CLD 254), the court referred to the Civil Procedure Code to determine the validity of an appeal by a company through its Secretary holding a registered power of attorney.

Predominant Disputes: Predominantly, the disputes revolve around the execution, scope, and validity of the general power of attorney and its subsequent use in property transactions, whether sales, gifts, or leases.

Nature of Power of Attorney: There’s a clear distinction between a general power of attorney and an irrevocable power of attorney. The former can be revoked under certain conditions, while the latter remains binding unless it’s proven to have been executed under duress, fraud or undue influence.

Timeliness: Delay in challenging or asserting rights based on a power of attorney can have significant legal consequences. Courts seem to look unfavourably upon parties that sleep on their rights.

Interplay with Other Laws: The Contract Act, 1872, especially Section 202, plays a pivotal role in determining the irrevocability of powers of attorney. The Civil Procedure Code, 1908, particularly in terms of time limitations, also plays a crucial role in disputes related to power of attorney.

Types of Disputes: Most disputes revolve around property sales, transfers, and possession claims. The authenticity, validity, and irrevocability of the power of attorney often become central issues in such disputes.

Revocation of Power of Attorney: The act of revoking a power of attorney is not straightforward, especially when it’s deemed irrevocable. A principal can’t just unilaterally revoke it without valid grounds. It’s essential to understand the terms under which a power of attorney was granted to understand the rights of revocation.

Duties and Liabilities of the Attorney: The individual or entity acting on the power of attorney has a fiduciary duty towards the principal. Any misuse or act beyond the scope of the authority granted can lead to legal repercussions. In many of the cases you cited, disputes arose because the attorney acted in ways that were not expressly permitted or were against the interests of the principal.

Fraud and Misrepresentation: The courts appear to have a consistent stance against acts of fraud, forgery, and misrepresentation concerning power of attorney. Even when a power of attorney is deemed irrevocable, it can be challenged if it’s proven that it was obtained through deceitful means. However, the onus of proof often rests on the challenging party.

Interactions with Other Legal Instruments: The power of attorney doesn’t exist in isolation. Its implications and enforceability often intertwine with other legal instruments like sale agreements, partnership deeds, and more. For instance, in the case of 2016 YLR 240 KARACHI-HIGH-COURT-SINDH, the interplay between the power of attorney and a partnership agreement became pivotal to the dispute.

Limitations and Barriers: A recurring theme in these cases is the concept of time limitations. Whether it’s challenging the validity of a power of attorney or seeking redress based on its misuse, timely action is of the essence. Courts have often dismissed cases or pleas based on their being time-barred.

Estoppel and Inaction: The principle of estoppel, where a person is prevented from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination, has been invoked in several cases. Silence, inaction, or delay in safeguarding one’s rights based on a power of attorney can lead to the application of estoppel, preventing them from challenging the validity or actions under the power of attorney at a later stage.

In the case of MUHAMMAD SALIM vs ADDITIONAL DISTRICT AND SESSIONS JUDGE, SHEIKHUPURA (2010 YLR 1098 LAHORE-HIGH-COURT-LAHORE), the court highlighted the significance of the proper execution of the special power of attorney. If not properly executed and unregistered, it can be rendered worthless, thus invalidating any authority given to the holder. This case also touched upon the importance of a registered general power of attorney, which remains valid until revoked by the principal.
MUHAMMAD HANIF vs RAMZAN BIBI (2010 CLC 1196 LAHORE-HIGH-COURT-LAHORE) brought into focus the interplay with the Contract Act (IX of 1872). The court stressed that damages for non-performance of a contract can only be sought if a monetary loss equivalent to the amount claimed can be proven. This judgment sheds light on the intricate balance between seeking specific performance and enforcing a penalty clause.
The matter of Mian ALLAH DITTA vs Mst. SAKINA BIBI (2010 CLC 966 LAHORE-HIGH-COURT-LAHORE), gives precedence to the importance of independent legal advice, especially when the executant is illiterate or vulnerable.
One notable case, RIAZ-UL-HAQ SHEIKH vs ZULFIQAR HUSSAIN (2010 CLC 770 LAHORE-HIGH-COURT-LAHORE), emphasises the importance of original documents. Even if a power of attorney is registered, it cannot be validated without the original document.
The case of WAZEER AHMAD vs ABDUL GHANI (2010 MLD 1167 LAHORE-HIGH-COURT-LAHORE) provides an insightful perspective on the revocation of a general power of attorney. It accentuates that once a document is acknowledged and accepted, any subsequent denial can be challenged, especially if the document was never officially revoked.
From Raja KARIM ELAHI vs MUHAMMAD ARIF (2010 MLD 58 LAHORE-HIGH-COURT-LAHORE), a key takeaway is that the court will not allow a party to benefit from a document or transaction selectively. A document must be accepted or rejected in its entirety.
In the realm of criminal law, AZIZUR REHMAN vs State (2010 YLR 3267 KARACHI-HIGH-COURT-SINDH), it was observed that the role of the Registrar is primarily to confirm the identity of the persons appearing for registration, not necessarily to verify the title of the property.

Forgery and Fraudulent Practices:

In the case of Mrs. SURRIYA AFZAL vs. ALIM SHEIKH (2010 CLC 572), the court emphasized the importance of authenticity in documents. Here, the court found the defendants guilty of forgery with the intent to fraudulently deprive the plaintiff of her property. Such forgeries, especially concerning powers of attorney, can lead to significant mental and financial distress for the rightful owner. The court’s decision reaffirms the principle that any fraudulent or fabricated document related to power of attorney is liable to be cancelled and revoked.

Examination of Original Documents:

The case of KHAN MAALIK vs. KHALID BASHIR (2010 PLD 162) underscores the necessity to produce original title documents when disputes arise. The defendant’s failure to produce the original title documents and the court’s subsequent inspection of the original documents held by the bank invalidated the defendant’s claim to the property.

Handwriting Expertise:

In both the cases, Mst. AKHTAR BEGUM vs. MUSLIM COMMERCIAL BANK LTD. (2009 SCMR 264 & 2009 CLD 189), the Supreme Court emphasized the importance of verifying signatures on disputed documents. The court’s insistence on comparing the petitioner’s signatures with her admitted signatures and further directing a handwriting expert to conclusively decide showcases the legal system’s rigorous approach to ensure that justice is not compromised due to forged signatures.

Relationship of Principal and Agent:

The case of Mst. SHABANA IRFAN vs. MUHAMMAD SHAM KHAN (2009 SCMR 40) addresses the dynamics between the principal and agent. The court established that if any alleged fraud was committed by the attorney, the dispute remains between the agent and the principal and should not impact a third party, especially when the third party was not privy to the alleged fraud.

Strict Interpretation of Powers Granted:

The case of NAWAB ALI vs. JAVAID IQBAL NABI (2009 PLD 49) highlights that powers granted to an agent through a power of attorney should be interpreted strictly. The court held that unless explicitly mentioned, additional powers or responsibilities should not be inferred.

Validity of Gift and Transfer:

In MUHAMMAD AKBAR KHAN vs. ATTA ULLAH KHAN (2009 YLR 1640), the court ruled that valid gifts could only be made with the explicit consent of the donor and the specific mention of the donee’s name. This case sets a precedent that transfers or gifts made without the necessary details and consents are considered void and illegal.

Broad Authority in General Power of Attorney:

The case of Mian ZAMEER TUFAIL vs. AYESHA BIBI (2009 CLC 717) exemplifies that a general power of attorney can grant wide-ranging authority, including the ability to file cases in various courts, unless specifically limited.

Furthermore, the Contract Act 1872 plays a pivotal role when assessing the validity of agreements and powers of attorney. Specifically, sections 214 and 215 of the Contract Act 1872 detail the obligations and responsibilities of agents, ensuring they act within the bounds of the authority granted to them. Meanwhile, the Civil Procedure Code outlines the procedural aspects of how these disputes should be approached in court, and the Qanun-e-Shahadat (Law of Evidence) lays down the rules for evidence, such as the importance of original documents and the admissibility of expert testimony.

In the case of MUHAMMAD YOUSAF vs IRFAN (2009 YLR 1688 KARACHI-HIGH-COURT-SINDH), the court deliberated on the irrevocability of a general power of attorney. The court held that once an agent acquires an interest in a property that is a part of the agency as per Section 202 of the Contract Act 1872, the principal cannot revoke the authority solely by his own act. The plaintiff had invested in the irrevocability of the general power of attorney, making it legally binding. Consequently, the cancellation of such a power of attorney had no legal effect.

Similarly, in Syed IMTIAZ H. RIZVI vs ABDUL WAHAB (2009 YLR 1199 KARACHI-HIGH-COURT-SINDH), the court dealt with the implications of not performing the duties assigned through a general power of attorney. The plaintiff, an Engineer/Architect, failed to produce any documentation to show he performed his responsibilities. The court dismissed his claim for recovery on the basis that he failed to uphold his end of the agreement.

On the topic of agreements that may not reflect their true nature, the court, in SUNLEY DEVELOPERS PRIVATE LIMITED vs MUMAIR ASSOCIATES (2009 PLD 235 KARACHI-HIGH-COURT-SINDH), observed that although the document was titled “agreement to sell”, its contents reflected a complete conveyance of land, making it more than just a mere agreement. The court’s keen eye for detail emphasised the importance of the contents over the title.

Forgery and fraudulent activities surrounding powers of attorney were central in MUSHTAQ AHMED SOLANGI vs State (2009 PCrLJ 732 KARACHI-HIGH-COURT-SINDH). The Mukhtiarkar (a revenue officer) was accused of issuing a sale certificate based on a fraudulent entry in the Revenue Record. The court found that he had not played any role in creating the fraudulent entry, leading to his release on bail.

Another interesting case, MUHAMMAD DANISH RAFIQ vs Mst. NAFISA SIDDIQUI (2009 MLD 144 KARACHI-HIGH-COURT-SINDH), highlighted the issues surrounding the relationship of landlord and tenant. The court stated that unless the relationship of landlord and tenant is established, no tentative order under S.16(1) of the Sindh Rented Premises Ordinance, 1979 can be passed.

The Supreme Court in AMNA RANI vs ASHFAQ AHMAD (2008 SCMR 805 SUPREME-COURT) reiterated the importance of a clear and unambiguous power of attorney. The court held that without specific authorisation, a general attorney cannot execute certain actions.

Nature of Power of Attorney: A general power of attorney (GPA) is an instrument by which authority is conferred on an agent. It is construed strictly and confers only such authority as is given expressly or by necessary implication (2008 YLR 122, Lahore-High-Court-Lahore).

Irrevocability: The irrevocability of a GPA, especially when specified within the deed, is binding. As seen in the case of Muhammad Yousaf vs Irfan (2009 YLR 1688, Karachi-High-Court-Sindh), the agent acquired an interest in the suit property, and the plaintiff could not revoke the authority by his own act by investing fact of irrevocability in the deed.

Validity of Acts under GPA: Acts done by an agent, based on the authority granted by the GPA, are legally binding unless they exceed the authority given in the GPA. In a few cases, transfers of property by the attorney without the express permission of the principal were deemed invalid (2008 YLR 122, Lahore-High-Court-Lahore; 2008 PLD 332, Karachi-High-Court-Sindh).

Fraud and Misrepresentation: Any evidence of fraud or misrepresentation can nullify the acts done under the GPA. In the case of Ghulam Murtaza vs Abdul Salam Shah (2007 SCMR 1062, Supreme-Court), the attorney’s actions were deemed unlawful due to lack of evidence supporting the attorney’s authority to sell.

Interplay with the Contract Act 1872: Sections 202 and 203 of the Contract Act, 1872, come into play, especially when discussing the revocation of a GPA. Section 202 specifically deals with the termination of agency, and section 203 talks about the principal’s power to revoke the agency.

Interplay with the Civil Procedure Code: Order XXIX Rule 1 of the Civil Procedure Code pertains to suits by or against corporations, and it has been invoked in cases where the GPA is in question (2008 PLD 332, Karachi-High-Court-Sindh).

Interplay with Qanun-e-Shahadat: Articles 117 and 120 of the Qanun-e-Shahadat deal with the burden of proof and its implications. The onus of proving the contents and the authority granted by a GPA often falls on the beneficiary (2007 SCMR 1062, Supreme-Court).

Interplay with the Registration Act 1908: The registration of the GPA plays a crucial role in its enforceability. Sections 33, 34, and 60 of the Registration Act 1908 have been invoked in cases where the registration of the GPA or acts done under it were in contention (PLD 433, Supreme-Court).

Predominant Disputes: Many disputes surrounding GPA revolve around property transfers, especially when the attorney exceeds the authority given or when there is an allegation of fraud. Additionally, the relationship between the principal and the agent, the nature of their agreement, and the specific powers conferred are often central to these disputes.

Questioning the Validity of the Power of Attorney: As seen in the cases of MUHAMMAD BASHIR alias BAKOLA (2007 YLR 2071 LAHORE-HIGH-COURT-LAHORE) and NOOR MUHAMMAD (2007 PCRLJ 1669 KARACHI-HIGH-COURT-SINDH), the validity of the power of attorney was a central issue.

Transactions by the Attorney: Disputes often arise when the attorney enters into transactions on behalf of the principal, especially if such transactions appear to be self-serving or detrimental to the principal’s interests. In MUHAMMAD YOUSUF (2007 YLR 2735 LAHORE-HIGH-COURT-LAHORE), the court highlighted the importance of ascertaining correct title and conducting due diligence.

Role of Attorney in Legal Proceedings: In some cases, the role of the attorney in legal proceedings becomes a matter of contention. In the case of Rana MUHAMMAD ALI SHAKIR (2007 YLR 501 LAHORE-HIGH-COURT-LAHORE), the petitioner’s attempt to register a criminal case based on an alleged ante-dated agreement to sell was central to the dispute.

Sale by Attorney to Close Relatives: In the case of MUSHTAQ AHMED (2007 MLD 1568 LAHORE-HIGH-COURT-LAHORE), the sale of property by an attorney to his real brother raised questions about the validity of the transaction, especially given the close relationship between the parties.

Validity of Actions Undertaken by the Attorney: A recurring theme in these cases is the extent to which actions taken by an attorney under a general power of attorney are valid. For instance, in the case cited as 2006 SCMR 1053, the sale of land by the general attorney in favour of the plaintiff through mutation was deemed to have been validly made.

Understanding and Consent of the Principal: The courts have placed emphasis on ensuring that the principal, especially if they are illiterate or Pardanashin, fully understands the implications of the power of attorney they are granting. In the case of 2006 SCMR 930, the fact that the principal was an illiterate Pardanashin lady meant that there was an onus on the attorney to prove that she truly understood the powers she was granting.

Fraud and Misrepresentation: The courts have shown a willingness to set aside powers of attorney where there is evidence of fraud or misrepresentation. For example, in 2006 YLR 1489, the plaintiff’s allegation that the power of attorney was obtained with fraud led to concurrent findings in her favour.

Specific Limitations on the Power of Attorney: In certain situations, there are inherent limitations on what can be done through a power of attorney. As seen in 2006 CLC 1893, a gift cannot be made through an attorney; the donor has to make the gift personally.

Provisions from Other Laws: The cases often reference various provisions from other pieces of legislation. For instance:

Contract Act 1872: Sections like Ss.4, 18, 25, and 214 are invoked in relation to the validity of contracts entered into through a power of attorney.

Civil Procedure Code: Provisions like O.VII, R.11 & O.XXXII, R.15 are relevant for procedural aspects of the cases.

Qanun-e-Shahadat: Art.129(g) was referenced in 2006 CLC 375, emphasising the importance of evidentiary rules.

Registration Act 1908: Several cases, including 2006 PLD 630, touch upon the registration requirements for powers of attorney.

Disputes Over Irrevocable vs General Power of Attorney: Many disputes arise when there is ambiguity over whether the power of attorney is irrevocable or general. Generally, irrevocable powers of attorney cannot be unilaterally revoked by the principal, usually because it is coupled with an interest.

Title and Authority: A significant aspect that emerges is the importance of the title and authority derived from the original owner or grantor of the power. In the case of 2006 CLC 482 KARACHI-HIGH-COURT-SINDH, it was held that no buyer would derive a better title than what their seller possessed. This underscores the paramountcy of the original title in determining the validity of subsequent transfers.

Registered Documents and Oral Sales: The 2005 PLD 418 SUPREME-COURT citation highlights the importance of registered documents in validating sales. While the general power of attorney may grant the attorney the power to sell, it must be strictly construed. If the power of attorney specifies that the sale should be through a registered deed, any deviation, such as an oral sale, would render the transaction invalid.

Proof of Authority and Genuineness: In transactions involving a general power of attorney, the burden often rests on the attorney to prove they acted within the scope of their authority and with the genuine consent of the principal. This is evident from the 2005 YLR 2761 LAHORE-HIGH-COURT-LAHORE citation, where it was emphasised that the attorney had to prove the realness, genuineness, and honesty of the sale, especially when the sale was to close blood relations.

Role of Natural Justice: The principles of natural justice play a pivotal role in determining the validity of transactions. In the 2005 YLR 2668 LAHORE-HIGH-COURT-LAHORE case, the court held that principles of natural justice must be inherent in every statute, and decisions made without giving affected parties proper notice or hearing violate these principles.

Forgery and Fraud: There are instances, as seen in the 2005 YLR 2846 LAHORE-HIGH-COURT-LAHORE case, where allegations of forgery come into play. In such cases, the authenticity of signatures and the overall genuineness of the documents are crucial elements that courts consider.

Role of Estoppel: Estoppel can be invoked to prevent a party from denying or alleging a certain fact owing to that party’s previous conduct, allegation, or denial. However, as seen in the 2005 YLR 2645 LAHORE-HIGH-COURT-LAHORE case, the plaintiffs were not estopped from filing the suit when the defendants failed to provide evidence establishing estoppel.

Strict Interpretation of Power of Attorney: A power of attorney must be construed strictly. It gives only such authority as is conferred expressly or by necessary implication. The individual granted the power can only carry out acts specifically mentioned and cannot act beyond the scope of the authority vested in them. This is evident in the cases of 2005 CLC 269 LAHORE-HIGH-COURT-LAHORE and 2005 MLD 1351 LAHORE-HIGH-COURT-LAHORE where the actions of the attorney were deemed invalid due to acting beyond the specific scope of their authority.

Challenge on the Basis of Fraud: The execution of a power of attorney can be challenged on the grounds of fraud or misrepresentation. In the case of 2005 CLC 1774 LAHORE-HIGH-COURT-LAHORE, the sale by the attorney was deemed fraudulent and was set aside. The court highlighted the need for primary evidence and strict adherence to the mandates of the Qanun-e-Shahadat.

Validity of Delegation of Power: A general attorney cannot delegate his powers to a special attorney unless expressly authorised to do so. This principle is underscored in the case of 2005 CLC 269 LAHORE-HIGH-COURT-LAHORE where the petition filed by a special attorney was dismissed on the grounds that the general attorney did not have the authority to appoint a special attorney.

Contract Act 1872 Interplay: The Contract Act, particularly Section 215, which speaks about an agent’s duty to communicate with the principal, comes into play when examining the validity of actions taken under a power of attorney. If an agent acts beyond his scope without the principal’s consent, such actions can be deemed invalid, as observed in the case 2005 CLC 356 LAHORE-HIGH-COURT-LAHORE.

Requirement for Primary Evidence: The onus is often on the defendant or the beneficiary of the power of attorney to prove its execution by primary evidence. This was seen in the case 2005 MLD 1940 LAHORE-HIGH-COURT-LAHORE, where the original document was not produced, making the actions based on it questionable.

Qanun-e-Shahadat and Registration Act 1908: These laws are often invoked when examining the veracity of documents and the procedures followed in their execution. For instance, in the case of 2005 YLR 2108 LAHORE-HIGH-COURT-LAHORE, the Qanun-e-Shahadat was cited to determine the validity of a power of attorney and whether it still qualified as a public document.

Irrevocable Power of Attorney: Disputes surrounding irrevocable power of attorney often arise when there is a question of fraud, misrepresentation, or overstepping of the authority granted. For instance, in 2005 YLR 2846 LAHORE-HIGH-COURT-LAHORE, there was a dispute over the legitimacy of signatures on an agreement, bringing into question the validity of the irrevocable power of attorney.

Strict Interpretation and Proof of Power of Attorney: Courts have emphasised the need for strict interpretation of the power of attorney. Only acts that are expressly mentioned or are a necessary implication of the granted powers can be performed under it. This was evident in the case of SAID MUHAMMAD vs. MUHAMMAD HANIF, 2004 SCMR 1533 SUPREME-COURT. Moreover, the onus often falls on the beneficiary or the person acting under the power of attorney to prove its authenticity and validity, as demonstrated in the case of Mst. NAJMA BEGUM vs. REHMAT ALI, 2004 MLD 620 LAHORE-HIGH-COURT-LAHORE.

Interplay with Other Laws: Provisions from the Contract Act 1872, the Civil Procedure Code, the Qanun-e-Shahadat 1984, the Registration Act 1908, and the West Pakistan Land Revenue Act come into play in disputes involving powers of attorney. For instance, in the case of MAHMOOD HUSSAIN BAJWA vs. Messrs GULF COMMERCIAL BANK LIMITED, 2004 CLD 743 LAHORE-HIGH-COURT-LAHORE, the provisions of the Civil Procedure Code regarding service were invoked to determine the validity of the actions taken under a power of attorney.

Challenges on the Basis of Fraud and Misrepresentation: The execution and actions under a power of attorney can be disputed on grounds of fraud, misrepresentation, or acting beyond the conferred authority. The courts have been particularly vigilant in ensuring that the powers granted under such documents are not abused or misused.

Duration and Revocation: A notable aspect is the duration of the power of attorney and the circumstances under which it can be revoked. It’s imperative to ascertain whether a power of attorney is still in effect and hasn’t been revoked at the time of any action taken under it.

Irrevocable Power of Attorney: Disputes surrounding irrevocable powers of attorney often revolve around questions of fraud, misrepresentation, or exceeding the granted authority. The courts have been cautious in ensuring that the rights of the principal are safeguarded, and any transgressions by the agent or attorney are rectified.

Burden of Proof and Authenticity of Power of Attorney: Courts have underscored the need for the party relying on the power of attorney to affirmatively establish its authenticity. For instance, in Mst. NAJMA BEGUM vs. REHMAT ALI, 2004 MLD 620 LAHORE-HIGH-COURT-LAHORE, the burden was on the beneficiary of the POA to prove its legitimacy.

Confluence of Relevant Statutes: Disputes involving power of attorney don’t operate in isolation. They intertwine with provisions from the Contract Act 1872, the Civil Procedure Code, Qanun-e-Shahadat 1984, the Registration Act 1908, the West Pakistan Land Revenue Act, and the Transfer of Property Act.

In the case of NATIONAL BANK OF PAKISTAN vs. Messrs SHOAIB CORPORATION and others, 2004 CLD 631 KARACHI-HIGH-COURT-SINDH, the Contract Act 1872, particularly sections concerning discharge of party to contract, was invoked, reflecting the contract’s underlying significance in POA disputes. Meanwhile, the SIRAJ DIN vs. GHULAM NABI, 2003 PLD 159 SUPREME-COURT case highlighted the mandate of the Registration Act 1908, emphasising the need for compulsory registration of documents that affect immovable property.

Irrevocable Power of Attorney: An irrevocable power of attorney, especially one coupled with an interest, stands robust against unilateral revocations. This was aptly demonstrated in Mst. HAJRAN BIBI vs. SULEMAN, 2003 SCMR 1555 SUPREME-COURT, where the POA was rendered irrevocable by virtue of the Contract Act, 1872.

Allegations of Fraud and Misrepresentation: The courts display a heightened vigilance against fraudulent activities and misrepresentation in power of attorney disputes. For instance, in the Mst. QURESHIA BEGUM vs. MUHAMMAD SUALEHEEN and others, 2004 YLR 1606 KARACHI-HIGH-COURT-SINDH case, the plaintiff’s claim was based on the assertion that she had executed a general power of attorney for the defendant only for property management purposes, which the defendant vehemently denied.

Importance of Due Diligence: A recurring theme in the cases is the importance of due diligence, especially when parties claim to be bona fide purchasers or transferees. The case JAMIL AKHTAR vs. LAS BABA, 2003 PLD 494 SUPREME-COURT epitomises this, where the subsequent vendees, despite due diligence, couldn’t have known about an existing agreement to sell.

Natural Guardianship and Minors: The role of natural guardians, particularly in the context of minors, is crucial. In the ALLAH DITTA vs. Mian MUHAMMAD AKRAM, 2003 SCMR 1199 SUPREME-COURT case, the father, being the natural guardian of the minor, had the authority to act on his behalf, further underscoring the importance of guardian appointments in lawsuits involving minors.

Validity and Challenges to General Power of Attorney:

In the case of Mst. QURESHIA BEGUM vs. MUHAMMAD SUALEHEEN and others (2004 YLR 1606 KARACHI-HIGH-COURT-SINDH), the dispute revolved around the execution of a general power of attorney for managing property affairs. The validity of such instruments often gets challenged, especially when there are allegations of fraud or misrepresentation as seen in the case of ALLAH BAKHSH vs. BAKHSHA (2003 SCMR 1011 SUPREME-COURT), where a sale based on a general power of attorney was contended to be a result of deceit.

Interplay with the Contract Act, 1872:

The Contract Act provides the bedrock for understanding the obligations of parties to a contract. In NATIONAL BANK OF PAKISTAN vs. Messrs SHOAIB CORPORATION and others (2004 CLD 631 KARACHI-HIGH-COURT-SINDH), Section 133 came to the fore, highlighting how the alteration in terms of an original contract can discharge a guarantor. Additionally, the case of Mst. HAJRAN BIBI vs. SULEMAN (2003 SCMR 1555 SUPREME-COURT) underlined how a general power of attorney, when coupled with interest, becomes irrevocable under Section 202 of the Contract Act, 1872.

Qanun-e-Shahadat and Proving Power of Attorney:

The Qanun-e-Shahadat Order, 1984, concerns the proof of documents. In JEHANZAIB SHINWARI and others vs. THE STATE and others (2002 PLD 87 PESHAWAR-HIGH-COURT), it was accentuated that the onus lies on the party claiming under a disputed document, to prove its genuineness.

Registration Act, 1908 and Necessity of Registration:

The Registration Act mandates the registration of certain documents to confer them with legal validity. In the case of JAMIL AKHTAR vs. LAS BABA (2003 PLD 494 SUPREME-COURT), it was observed that a general power of attorney, if not registered, may not offer protection against subsequent bona fide purchasers.

Transfer of Property Act and Irrevocable Power of Attorney:

The case of DR. MUHAMMAD EHTESHAM vs. SAJID LATEEF SETHI (2002 MLD 131 LAHORE-HIGH-COURT-LAHORE) showcased how an agency, when coupled with interest as per the Transfer of Property Act, becomes irrevocable, thus protecting the rights of the agent.

Predominant Disputes involving Power of Attorney:

Disputes predominantly arise when there’s a transfer of property based on a general power of attorney, especially when such power of attorney is alleged to be obtained fraudulently or without the genuine consent of the grantor. The cases like ALAM BIBI vs. PLATINUM COMMERCIAL BANK LIMITED (2002 CLD 1692 LAHORE-HIGH-COURT-LAHORE) and Mst. NAWAB BIBI vs. GHULAM HUSSAIN (2003 YLR 2554 LAHORE-HIGH-COURT-LAHORE) reflect the challenges surrounding the execution and validity of such documents.

Validity and Revocation of General Power of Attorney

Age and Undue Influence: In 2002 MLD 1651 LAHORE-HIGH-COURT-LAHORE, a general power of attorney executed by a minor was challenged. The court observed that even if a person attains majority after the execution of the power, they should seek its cancellation if they do not wish their attorney to deal with their property. The lack of action in such cases indicates acceptance by the principal.

Institution by an Incompetent Person: A case titled 2002 CLD 1665 KARACHI-HIGH-COURT-SINDH highlighted that the burden of proving the institution of a suit by an authorised person lies upon the plaintiff. The absence of such proof renders the institution of the suit incurable, making it not maintainable.

Fraud and Forgery: In 2001 PLD 126 PESHAWAR-HIGH-COURT, the power of attorney was contested on the grounds of fraud and forgery. The court, however, based its decision on the evidence presented during the trial.

Validity and Interpretation of GPAs:

In the case of 2002 MLD 1651 LAHORE-HIGH-COURT-LAHORE, the court highlighted the significance of the timely cancellation of a GPA. If the principal does not revoke a GPA, they may bear the responsibility for the actions taken under it, particularly if such actions align with the principal’s conduct. The case further suggests that third parties who deal with the attorney in good faith are protected under the law, even if the principal alleges fraud or undue influence. This was a sentiment echoed in 2000 YLR 527 LAHORE-HIGH-COURT-LAHORE, where the court held that a GPA coupled with an interest (such as payment of consideration) cannot be revoked unilaterally.

In 2000 CLC 1168 KARACHI-HIGH-COURT-SINDH, the distinction between a general power of attorney and a special power of attorney was underlined. While the former can grant broad powers encompassing multiple actions, the latter is restrictive, granting authority for only a specific act.

Revocation of GPAs:

Revoking a GPA is not always straightforward. As seen in 2000 YLR 527 LAHORE-HIGH-COURT-LAHORE, even if the principal desires to revoke a GPA, it cannot be done if it is “coupled with interest”. The case of 2000 MLD 1893 LAHORE-HIGH-COURT-LAHORE underscores the importance of ensuring the GPA is executed genuinely. If a GPA’s authenticity is in question, the burden of proof shifts to the beneficiary to prove its legitimacy.

Validity of the General Power of Attorney
In the case of Saifullah Khan vs. Javed Iqbal (1997 SCMR 1210, SUPREME-COURT), the court highlighted the importance of the authenticity of the power of attorney. It underscored that the person authenticating must satisfy himself regarding the identity of the executor and the factum of execution. This principle was further echoed in Muhammad Tahir Khan vs. Sardaran Bibi (1997 PLD 122, LAHORE-HIGH-COURT-LAHORE), where the court stressed the importance of proper attestation, especially when the power of attorney contains the power to sell.

Revocation and Alienation
The case of Faqir Muhammad vs. Pir Muhammad (1997 SCMR 1811, SUPREME-COURT) touched upon the responsibilities of the holder of a general power of attorney, especially when alienating the property of the principal. The court held that the attorney should obtain the principal’s consent, especially when the beneficiary is closely related to the agent. Failure to do so gives the principal the right to repudiate the transaction.

Interpreting the General Power of Attorney
Courts have maintained that a general power of attorney should be strictly construed. In the case of Murid Hussain vs. Muhammad Sharif (1996 CLC 161, LAHORE-HIGH-COURT-LAHORE), it was emphasised that the attorney must act strictly within the confines of the powers bestowed upon them. If the power of attorney doesn’t expressly grant a specific authority, the attorney cannot assume it. This principle is reinforced in Zawar Hussain vs. Abid Hussain Qureshi (1994 MLD 2251, KARACHI-HIGH-COURT-SINDH), where an attorney, despite holding a general power of attorney, wasn’t permitted to give evidence as the specific power was not granted.

Validity and Revocation
The validity of the general power of attorney often comes under scrutiny, especially when there’s an alleged misuse. In the case of Siraj Din vs. Muhammad Ali (1995 PLD 313, LAHORE-HIGH-COURT-LAHORE), it was highlighted that a transaction undertaken after the revocation of a general power of attorney is void. The crux is that once a power of attorney is revoked, any actions taken under its guise post-revocation are invalid.

Validity of the General Power of Attorney
The courts often find themselves determining the validity of a general power of attorney. In Anwary Begum vs. Muhammad Ramzan (1993 MLD 1955, BOARD-OF-REVENUE-PUNJAB), the court emphasised the importance of evidence in establishing the validity. Even if allegations of fraud are levied, clear evidence, like a previously executed power of attorney, can validate transactions made under its ambit.

Revocation: A Critical Aspect
The revocation of a power of attorney is a recurring theme in legal disputes. For instance, Anis Fatima vs. Anwar Hussain (1992 CLC 2137, LAHORE-HIGH-COURT-LAHORE) showcases that if a general power of attorney is deemed irrevocable, attempts by the principal to revoke it can be rendered ineffective, especially if the irrevocability clause is embedded in the deed itself.

Interplay with Other Legal Provisions
The dynamics of the power of attorney doesn’t operate in isolation. For example, in Muhammad Bashir vs. State (1989 MLD 2865, LAHORE-HIGH-COURT-LAHORE), the Civil Procedure Code comes into play. The case accentuates that even if the initial agreement acknowledges the power of attorney, the court can suspend criminal proceedings awaiting the outcome of related civil proceedings. Moreover, the Contract Act 1872 is also invoked in many cases, particularly when discerning the responsibilities and liabilities of the attorney.

Irrevocable Power of Attorney: A Strong Stance
The irrevocable power of attorney, once granted, assumes a formidable legal position. As seen in the National Bank of Pakistan vs. Muhammad Moiz (1991 CLC 1260, KARACHI-HIGH-COURT-SINDH) case, even if a party tries to distance itself from an agreement made under an irrevocable power of attorney, they can still be held liable for the obligations set under it.

Pleading and Procedural Nuances
It’s also crucial to consider the procedural aspects. For instance, in the Wadho Akhara Trust vs. Rukan Din (1989 PLC(CS) 959, LABOUR-APPELLANT-TRIBUNAL-PUNJAB), it was established that if an attorney is duly authorised under a general power of attorney, they can validly sign appeals. Such nuances highlight the broader implications of the power of attorney in various legal procedures.

Concluding Thoughts
The power of attorney, especially its general and irrevocable forms, remains a focal point in many Pakistani legal battles. As these cases demonstrate, the courts consistently underline the importance of clear evidence, the strict interpretation of powers, and the interplay with other legal provisions. It’s a testament to the instrument’s power and the need for careful navigation in its usage.The myriad cases surrounding the general and irrevocable power of attorney in Pakistan underscore the instrument’s complexity. Courts have consistently reinforced the importance of clear evidence, precise interpretation, and the interconnectedness of various legal provisions. .

A review of recent case law on Power of Attorney in Pakistan

By The Josh and Mak Team

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