Suit property was sold by general attorney through oral sale mutation, therefore, in order to establish valid execution of the transaction, respondents have to prove................ ~ Case Laws

2023 LHC 1158

Suit property was sold by general attorney through oral sale mutation, therefore, in order to establish valid execution of the transaction, respondents have to prove not only the general power of attorney, the ingredients of sale but also the execution of the mutation through cogent and reliable evidence. In order to enforce a sale of immoveable property it was imperative for the vendees to establish that the transaction was undertaken with a title holder; there was an offer made which was accepted; the parties had no incapability; there was consensus at idem; that it was settled against valid consideration and that it was accompanied by the delivery of possession.

Transaction involving property of illiterate women was to be treated at par with Pardanasheen lady and where a transaction involved anything against her apparent interest, it must be established that independent, impartial and objective advice was available to her and the nature, scope, implication and ramifications of the transaction entering into was fully explained to her and she understood the same. Attestation of mutation by itself does not furnish proof of sale and whenever any such transaction was questioned, the onus laid on the beneficiary to prove the transaction and every ingredient thereof as well as the document if executed for its acknowledgment. Mutation was always sanctioned through summary proceedings and to keep the record updated and for collection of revenue, such entries were made in the relevant register under Section 42 of the Land Revenue Act, 1967 and it had no presumption of correctness prior to its incorporation in the record of rights. However, entries in the mutation were admissible in evidence but the same were required to be proved independently by the persons relying upon it through affirmative evidence. Oral transaction reflecting therein did not necessarily establish title in favour of the beneficiary. Mutation could not by itself be considered a document of title and may have been attested as an acknowledgment of past transaction.  

It is settled principal of law that there must not be any uncertainty or vagueness in the power of attorney. Power of attorney should be construed strictly and only such powers qua the explicit object which were expressly and specifically mentioned in the power of attorney should be exercised by the agent as conceded to have been dedicated to him. 

The execution of power of attorney neither amounts to be divesting the principal of the authority over the subject matter nor does it amount to absolute right of the attorney over the propert its owner. The attorney has to act as an agent of the principal y as . There is a restriction that the attorney has to take the principal in confidence before converting the property of the principal on the force of the power of attorney into personal use o r for the benefit of his near relatives. Admittedly, suit property was transferred by the general attorney to his son namely Ghulam Mustafa i.e. respondent No.1. If an attorney intends to exercise right of sale in his favour or in favour of next of his kin , he has to consult the principal before exercising that right and he should firstly obtain the consent and approval of the principal after acquainting her with all the material circumstances.

It is well settled principle of law that fraud vitiates even the most solemn transaction. Any transaction based on fraud would be void. Limitation does not run against void transaction. Mere efflux of time did not extinguish the right of any party. Notwithstanding the bar of limitation, the matter can be considered on merit so as not to allow fraud to perpetuate. 

Section 18 of the Limitation Act, 1908 is the most pivotal provision providing relief in computing the limitation period, applicable to a person who claims to be deprived of the knowledge of his right to sue based on the fraud of the other party.

Where a person is by means of fraud kept from the knowledge of his right to institute a suit. In such circumstances, the period of limitation commences from the date when the fraud first became known to the "person injuriously affected". Such injuriously affected person can, therefore, institute a suit within the limitation period specified for such suit in the First Schedule ("Schedule") to the Limitation Act, but computing it from the date when he first had knowledge of the fraud, whereby he was kept from knowledge of his right to institute the suit. Thus, section 18 of Limitation Act is an umbrella provision that makes the limitation period mentioned in the Articles of the Schedule, begin to run from the time different from that specified therein.  

Therefore, it is the date of knowledge of the "person injuriously affected" of the fraud mentioned in section 18, and of his right to sue that is relevant for computing the limitation period.  

 Thus, the limitation period of six years provided in Article 120 of the Limitation Act is to be computed from the time mentioned in the said Article, that is, when the right to sue accrued. 

The provision clearly declares that for computing the limitation, the period of six years would commence from the date of accrual of right to sue. To ascertain, when does the right to sue accrue, to seek a declaration of her ownership right over the suit property shown to have been transferred to see another provision of law, that is, section 42 of the Specific Relief Act. A suit for declaration of any right, as to any property is filed under section 42 of the Specific Relief Act.
It becomes evident by reading the above provisions that the right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right. 