There is difference between Power of Attorney and Will

PLJ 2008 Karachi 121

Present: Muhammad Afzal Soomro, C.J.

MUHAMMAD SIDDIQ--Applicant

versus

MUSHTAQ ALI and 5 others--Respondents

C.R. No. 71 of 2006, decided on 19.2.2008.

Specific Relief Act, 1877 (I of 1877)--

----Ss. 8, 39 & 42--Contract Act, (IX of 1872), S. 188--Suit for declaration, cancellation of power of attorney and possession--Registered irrevocable power of attorney executed by him in favour of his son was not liable to be exercised during the lifetime, as there was difference between power of attorney and will--Validity--Section 188 of Contract Act, described the extent of agents authority; Agent having an authority to do an act had authority to do every lawful act and thing for the execution of the same--Power of attorney was an instrument by which authority was conferred on an agent--Such an instrument was construed strictly and conferred only such authority as was given expressly or by necessary implication--Irrevocable general power of attorney in the suit indicated that same was to be operated during lifetime of the plaintiff and after his death same would operate as will--Alleged cancellation of said registered general power of attorney did not bear the signature of attorney nor it was registered--Attorney was son and attorney of the plaintiff having power to do so sold the disputed property--Appellate Court below had not considered all said facts and passed impugned order hastily--Impugned judgment and decree, were set aside and resultantly the possession of the property in question was restored to the buyer of the property.   [P. 123] A & B

Mirza Sarfraz Ahmed, Advocate for Applicant.

Respondent No. 1 (in person).

Date of hearing: 19.2.2008.

Judgment

This revision application is directed against the order/judgment dated 21-4-2005 and decree dated 13-5-2005 passed by the learned District and Sessions Judge, Karachi East in Civil Appeal No. 51 of 2005, whereby the appeal was allowed.

The brief facts of the case are that the applicant purchased Plot No. 317. Old No. C-5/6, Sheet No. 3, Block-C, Qayyumabad, Korangi Road, Karachi, by way of sale-deed for a sum of Rs.36,000 from the Respondent No. 2 on the basis of General Power of Attorney given to him by his father Respondent No. 1. After purchase the applicant obtained loan from NBP. The applicant made construction and spent huge amount. The Respondent No. 1 filed Suit No. 531 of 2004 in the Court of VII Senior Civil Judge Karachi East for declaration, cancellation and possession alleging that he has cancelled the power of attorney in favour of his son Respondent No. 2. Notice/summon was issued but the same were not received by the applicant. There was publication in newspaper at Karachi, Lahore. The applicant in fact had no knowledge of filing the suit as he is uneducated. The suit was dismissed on 26-1-2005.

The learned counsel for the applicant has contended that the order of the learned District Judge is illegal, void as no summon was served upon the applicant; that the learned VII Senior Civil Judge Karachi East did not serve any notice or summon upon the applicant. In fact the applicant had no knowledge of the pendency of the case till 28th March, 2006 and he was dispossessed with the help of police; that Respondent No. 1 has falsely alleged that he had revoked the General Power of Attorney and Deed of will; that whole proceedings have taken place at the back of the applicant and the judgment is ex parte and lastly it is contended that the impugned order may be set aside.

Respondent No. 1 appearing in person contended that he had executed a will in favour of his son Respondent No. 2 to facilitate him to deal with the property in question, who malafidely misused the same converted  it into General Power of Attorney which was cancelled by him and that Respondent No. 2 had stolen away the lease and got the sale-deed executed in favour of the applicant.

 Kar.      Rana Muneer Ahmed v. KASB Bank Limited    PLJ
      ( )

2008  Rana Muneer Ahmed v. KASB Bank Limited    Kar.
     

I have heard the learned counsel for the applicant and the Respondent No. 1 and gone through the record and proceedings.

Perusal of the record shows that the Respondent No. 1 had prayed for declaration to the effect that registered irrevocable power of attorney executed by him in favour of his son is a will and same is not liable to be exercised during the lifetime although there is very much difference between power of attorney and will. Section 188 of Contract Act describes to the extent of agents authority. An agent having an authority to do an act has authority to do every lawful act and thing for the execution of it. A power of attorney is an instrument by which authority is conferred on an agent. Such an instrument is construed strictly and confers only such authority as is given expressly or by necessary implication. The Irrevocable General Power of Attorney in suit indicates that same is to be operatable during life time of plaintiff and after death of plaintiff same would operate as Will. The alleged cancellation of registered General Power of Attorney does not bear the signature of the attorney of the Respondent No. 1 nor it was got registered. Respondent No. 2 being son of attorney of Respondent No. 1 sold the property in question to applicant who had power to do so. It appears that the learned Appellate Court has not considered all the above facts and passed the impugned order hastily.

      A

In view of the above discussion this revision stands allowed the impugned judgment and decree dated 21-4-2005 and 13-5-2005 respectively are set aside, suit stands dismissed and resultantly the possession of the property in question is restored to the applicant.

      B

(R.A.)      Application allowed.