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O.III, R.2 & O.XXIII, R.1 Withdrawal of suit by attorney Essential requirements for withdrawal of suit by attorney Until and unless power to compromise or withdraw a suit has been specifically given to an attorney, such power would be deemed to be non existent and could not be inferred from general expressions used in "document viz. power of attorney Such expressions are to be read in context of specific powers given to the attorney and are always subject to specific expressions used in relevant document.
0.111, R.2 Power of attorney Construction of Power of attorney should always be construed strictly= Powers which have not been specifically given to an attorney or do not flow from the contents of document, should not.be deemed to have been conferred on the attorney concerned General terms occurring in such document executed for the purpose of appointing an attorney should be interpreted with reference to the object for which such power of attorney was executed. [Power of attorney].
Muhammad Afsar Khan v. Khadim Hussain and others P L D 1978 SC (AJK) 143, Jiwibai v. Ramkumar Shriniwas Murarka Agarwala A I R 1947 Nag. 17, Bowstead Agency Edn.9 p.59, (1883) AC 170 and (1884) AC 561, Messrs Eagle Star Insurance Co. Ltd. v. Messrs Usman Sons Ltd. and others P L D 1969 Kar. 123, Mst. Nazira Begum v. Mir Hussain Khan and others P L D 1984 Azad J & K 1, Din Muhammad and others v. Farooq Mirza P L D 1955 Sind 62: ijharam Badaldas and others v. Vithaldas Jethanand and others A 1947 Sind 4 and Gul Taj Begum v. Lal Hussain and others P L D 1980 SC (AJ&K) 60 ref.
0.111, R.2 & O.XXIII, R.1 Withdrawal of suit by attorney Competency Attoney is empowered through power of attorney to file and prosecute a suit in respect of certain land but embargo is put on his powers with regard to sale, transfer or mortgage of same Such power of attorney do not empower the attorney to barter away interest of his principal by withdrawing the suit Withdrawal of suit by such attorney is an act in excess of his authority as indicated by the contents of powers of attorney.
Intention of parties is to be collected from the document itself and not by the Court presuming an intention General rules of construction of documents and deeds stated.
Firstly if the words in a document are express and clear, effect must be given to them and any extraneous enquiry into what was intended by the parties is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended by the parties.
Secondly, to find the intention of the parties expressed by the words used in a document, the document must be read as a whole. The words of each clause must be so interpreted as to bring them into harmony with the other provisions of the document; if such interpretation does no violence to the meaning of which they are susceptible. In fact, the best construction of deeds is to make one part of it expound the other, and so to make all the parts agree. Effect must, as far as possible, be given to every word and every clause. The intention is ascertained by reading the terms of the deed as a whole, and giving to them the natural meaning of the language used.
Thirdly; if there be two methods admissible for the constructions of a document, one which will give effect to all the clauses therein shall be preferred and the construction which will render one or more of the clauses nugatory shall invariably be avoided.
On the same principles a Court will lean to an interpretation which will effectuate rather than one which will invalidate an instrument. Fourthly; since an instrument is to be construed to the intention of the parties as appearing from the whole of its contents, it follows that intention must not be defeated by too strict and adherence to the actual words, and any corrections may be necessary. Thus, words which have been left out by mistake may be added or supplied when it is clear from the instrument itself that they have been omitted by inadvertence. Hence comes the rule that when the Court can clearly collect from the language within the four corners of the deed, the real intention of the parties it is bound to give effect to it by supplying anything necessarily to be inferred from the terms used, and by rejecting as superfluous whatever is repugnant to the intention so discovered.
Fifthly; if there are two clauses or parts of a deed repugnant to each other, the first part will be received and the later rejected, unless there is some special reason to the contrary.
This rule is subordinate to the general principle that the intention must be gathered from the entire contents of the deed. Hence, when one clause is in accordance with and the other is opposed to the real intention, the former must be received and the latter rejected whatever their relative position may be.
The fact that a clause in a deed is not binding cannot ipso facto render the whole deed void, unless it forms such an integral part as to render it impossible to sever the good from the bad.
Sixthly; as the recitals are subordinate to the operative part, consequently, where the operative part is clear, this is treated as expressing the intention of the parties and it prevails over any suggestion of a contrary intention afforded by the recitals. Where, however, the operative part is doubtful, then the recitals can be used to explain its meanings and while for the purpose of construing the operative part, the whole of the instrument may be referred to, yet the recitals leading up to it are more likely to furnish the key to its true construction. Hence, as the recitals are statements introduced to explain or lead up to the operative part of the deed.
(a)where the operative part, is unambiguous, the recitals may not be resorted to control, cut down or qualify the operative part in any way; but
(b) where the operative part is ambiguous, the recitals may then be resorted to for explaining the intention of the parties to the Court.
Seventhly; the words of written instrument must be generally taken in their ordinary sense. Notwithstanding the fact that such construction may appear not to carry out the view which it may be supposed the parties intended to carry out; but if the provisions and expressions are contradictory, and there are grounds appearing on the face of the instrument, affording proof of the real intention of the parties, that intention will prevail against the obvious and ordinary meaning of the words; where the literal construction would lean to an absurd result, and the words are capable of being interpreted so as to avoid this result, the literal construction will be
abandoned. If, however, the intention is clearly and unequivocally expressed then, however capricious it may be, the Court is bound by it, unless it is plainly controlled by other parts of the instrument. Thus the words of a deed must be construed according to their natural meaning, and no amount of acting by parties can alter or qualify, words which are plain and unambiguous. In view of the above, there was no authority in the attorney to effect withdrawal of the pre emption suit.
Eighthly; the Court will assume that a man using legal terms in a document intends them to have the meaning which the law attaches to them and evidence to show the contrary will not be received. In the instant case the phraseology used to the effect that the attorneyholder will not be entitled to sell, dispose of, mortgage etc. the suit land, clearly conveys the sense that it was the least intention of the executor to give him authority to effect withdrawal of the pre emption suit.
It is also settled law that the words of deeds are to be taken most strongly against him who uses them. Where the Court can have two reasonable constructions, one favouring the person responsible for the difficult words or phraseology and the other one otherwise, then the Court will adopt the latter.
Additionally the subsequent conduct of a party is an important consideration interpreting a document.
Subsequent acts of the parties are admissible where the construction of a document is doubtful under the doctrine of contemporanea expositio and this is so whether the document be modern or ancient. However, in construing a document, whether in English or Urdu, the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered but that is only for the purpose of finding out the intended meaning of the words which have actually been employed.
Likewise when the document is in foreign language or in code, extrinsic evidence is admissible to enable the Court to understand the document.
Smith v. Lucas (1881) 18 Ch. D. 531, Cuunchun Jha v. Ebadat Ali A I R 1954 SC 345; Strand Music Hall Co. Ltd. (1865) 35 Beav. 153, Safiuddin Kazi v. Moslem Ali Howaldar P L D 1960 Dacca 555; Radha Sunder Dutta v. Mohd. Jahadur Rahim A I R 1959 SC 24; K.D. Co. v. K.N. Singh A I R 1956 SC 446, Dilafroze v. Raja Gauhar Zamir Khan A I R 1946 PC 165, Saeed Saigol v. Khurshid Hassan P L D 1964 SC 598 and Ram Gopal v. Nand Lal A I 11 1951 S C 139 ref.
O.III, R.2 Stamp Act (I1 of 1899), S.2(21) Terms "power of attorney" Meaning, scope and import of Power of attorney enables the attorney not only to do lawful things on behalf of his principal so as to bind the latter but also to use the latter"s name in the instruments executed by him as attorney Duties and obligations of attorney to his principal with reference to special or general power of attorney stated. [Power of attorney].
Power of attorney or letter of attorney is an authority whereby one "is set in the name, stead or place of another" to act for him. The authority in writing is the power of attorney. The person authorised to do any lawful act in the stead of another is called the attorney or the donee of the power of attorney. The person who gives the power is called the donor. The definition of power of attorney does not seek to include cases of contracts creating the relationship of principal and agent. A power of attorney enables the attorney not only to do lawful things on behalf of the principal so as to bind the latter but also to use latter"s name in the instruments executed by him as the attorney. In the instrument thus executed the principal himself figures as a party to the transaction though his name is written on seal used by the attorney as his attorney. In the case of agency the agent himself executes the instrument through the transaction is binding on the principal. The power of attorney, on the other hand, enables the person authorised not only to act on behalf of his principal but also to use the latter"s name in all the transactions effected by him in the capacity of an attorney. Where one is authorised in writing, on behalf of another, and in his name, to do a lawful act, that is an appointment of an attorney within the meanineT of the Stamp Act.
A power of attorney may be executed jointly by a number of persons as the principals. It may also be executed in favour of one person or a number of persons as the attorney or attorneys. A power of attorney is either general or special. A power of attorney with regard to a single transaction is known as a special power of attorney. Where the power authorises the attorney to act generally or in more than one transaction it is known as a general power of attorney. But a general power of attorney can also be for specific purposes.
S.44 Azad Jammu and Kashmir Right of Prior Purchase Act (1993 B.K.), S.14 Civil Procedure Code (V of 1908), 0.111, R.2 & O.XXIII, R.1 Withdrawal of suit by attorney Power of attorney did not authorise the attorney to withdraw the suit but authorised him to prosecute pre emption suit on behalf of his principal Findings of all the Courts below, wherein withdrawal of suit by attorney was stated to be within his authority, were set aside, holding that such attorney had no power to withdraw the pre emption suit Case was remanded to Trial Court for hearing under law
Raja Muhammad Siddique for Appellant.
Ch. Muhammad Taj for Respondents.
This appeal has been directed against the judgment of the High Court dated 27 11 1986, whereby the appeal filed by the appellant, herein, was dismissed.
2. The brief facts giving rise to the present appeal are: that Ghazanfar Hussain, appellant, instituted a pre emption suit in the Court of Sub Judge, Mirpur, in respect of land comprising survey Nos.838/619, measuring 3 Kanals 1 Marla, situated in village Abdoopur, Tehsil and District Mirpur. The said land was sold by one Muhammad Afzal to Noor Din (deceased), whose legal representatives are on the record. The plaintiff /appellant, who was residing in England at the relevant time, appointed one Muhammad Ashraf as his attorney to safeguard his interest in the suit. During the pendency of the suit in the trial Court the said attorney submitted an application seeking the withdrawal of the case on the basis of alleged compromise effected between the parties. The trial Court after recording the statement of the attorney dismissed the suit of the appellant as having been withdrawn. The appellant feeling aggrieved by the judgment and decree of the Sub Judge, Mirpur, preferred an appeal to the District Judge, Mirpur; he also moved an application seeking condonation of delay in filing appeal on the ground that as he was away from the country and had no knowledge of compromise, he could not prefer the same within time. However, the District Judge did not condone the delay and dismissed the appeal as being time barred vide judgment and decree dated 4 8 1976. The appellant then filed an appeal against the above judgment and decree of the District Judge in the High Court, which was accepted and the delay in filing the appeal before the District Judge was condoned and remanded the case back to the District Judge to decide the same on merits. Respondents Nos.l to 6 preferred an appeal to this Court against the order of remand passed by the High Court, which was also dismissed on 26 10 1982. In pursuance of the order of remand, the District Judge heard the arguments afresh in the case and dismissed the appeal. The second appeal before the High Court filed by the appellant was also dismissed.
I have heard the arguments and gone through the record. The Court"s below have opined that in view of the contents of the power of attorney, Muhammad Ashraf was competent to effect withdrawal of the suit. It would be expedient to reproduce the relevant clauses of the said power of attorney below:
"xxxx xxxx xxxx xxxx
(1) That at present I am residing in the United Kingdom and am
unable to deal with my affairs personally in Pakistan.
(2) That I have filed a case of Haq e Shifa against Mr. Noor Din
of Gilan Jatlan, Tehsil and District, Mirpur (AK), Pakistan.
(3) xxxx xxxx xxxx xxxx
(4) That my abovementioned Attorney can represent me into any office, Courts of jurisdiction, appoint counsel can do any kind of transaction of money and carry out whatsoever work is necessary in the said matter.
(5) That whatsoever my said Attorney will do will be binding in my name except for the sale, transfer or mortgage of the said land.
xxxx xxxx xxxx xxxx."
4. It is evident from the contents of the power of attorney that the same was executed by the appellant for prosecuting the pre emption case which was filed by him. Although in clause 3 of the power of attorney it is mentioned by the appellant" that he is executing a "general power of attorney", yet considering the contents of the said document as a whole it becomes crystal clear that the power of attorney was given to Muhammad Ashraf for the purpose of prosecuting the pre emption case and none else. The powers recorded in clauses 4 and 5 of the aforesaid document would be deemed only to the matters pertaining to the prosecution of the pre emption case filed by the appellant. The powers of withdrawal or compromise have not been specifically given to attorney nor those can be said to have been given by necessary implications. The contents of clauses 4 and 5 of the power of attorney clearly pertain to the matters which have been enumerated therein and mean only the acts which were necessary to be done for the prosecution of the suit. It has been specifically mentioned in clause 5 of the power of attorney that the attorney shall not be competent to sell, transfer or mortgage the said land. The expression the "said land" clearly refers to the land which is the subject matter of the pre emption suit. Evidently, the question of sale, transfer or mortgage of the suit land would arise only after a decree on the basis of right of prior purchase has been passed in favour of the appellant. In other words the aforesaid expression clearly implies that the appellant did not empower the attorney to do any act which may deprive him from obtaining the suit land. Thus, in my .view, it cannot be said that the powers enumerated in clauses 4 and 5 of the said document can be interpreted to mean that the attorney was competent to withdraw the suit by necessary implications. Prohibition to sell, transfer or mortgage the suit land curtail the powers of attorney and not enlarge the same. It is settled principle of law that until and unless the power to compromise or withdraw a suit is specifically given to an attorney, such power would be deemed to be non existent and cannot be inferred from the general expressions A used in the document; such expressions are to be read in context of specific powers given to the attorney and are always subject to the specific expressions used in the relevant document. A reference may be made to some of the authorities which may elucidate the matter in controversy in the instant case:
In Muhammad Afsar Khan v. Khadim Hussain and others PLD 1978 SC (AJK) 143, it was observed as under:
"A power of attorney under Order III, rule 2, Civil Procedure Code should be construed strictly. It gives only such authority as it confers expressly or by necessary implication and it cannot empower beyond what it really conveys. One of the most important rules for the construction of power of attorney is that regard must be had to the recitals which, as showing the scope and object of the power, will control all general terms in the operative part of the instrument. Where authority is given to do a particular act, followed or produced by the general words, general words are. restricted to what is necessary for the proper performance of the particular act and general words in no way confer general powers but are limited to the purpose for which the authority is given and are construed as enlarging the specific powers only when necessary for the purpose. It, therefore, follows that where special powers are followed by general words and vice versa, the general words are to be construed as limited to what is necessary for the proper exercise, of the special powers."
In Jiwibai v. Ramkumar Shriniwas Murarka Agarwala A I R 1947 Nag. 17 (Full Bench case), it was observed:
"The ordinary rule is that powers of attorney must be strictly construed as giving only such authority as they confer expressly or by necessary implication; (Bowstead on Agency, Edn. 9, p.59, (1883) AC 170 and (1884) AC 561). The learned author stresses that general words do not confer general powers, but are limited to the purpose for which the authority is given, and are construed as enlarging the special powers when necessary, and only when necessary, for that purpose. A power of attorney is subjected to strict interpretation because it delegates powers which are to be interpreted in strict terms and, in such a way, as would be necessary to carry into effect the authority that is expressly given. The power of attorney is not open to that liberal interpretation which is given to less formal instruments such as ordinary letters or instruments in commercial transaction."
In Messrs. Eagle Star Insurance Co. Ltd. v. Messrs Usman Sons Ltd. and others P L D 1969 Kar. 123, the following observations were made:
" .... Such an instrument is a written authorisation by which the principal appoints another person as his agent and confers upon him the authority to perform specified acts on behalf of the principal. The primary purpose of an instrument of this nature is to evidence the authority of the agent to third parties with whom the agents deal. The rule is now well established that the power of attorney must be strictly construed and strictly pursued. A power of attorney is held to confer only those powers which are specified therein, and the agent may neittrer go beyond nor deviate from the terms of this instrument, that is, the act done should be legally identical with what is authorised to be done by the instrument."
In Mst. Nazira Begum v. Mir Hussain Khan and others P L D 1984 Azad J & K 1, it has been observed that the power of attorney is to be construed strictly and the powers not specifically conferred on attorney in document cannot be implied to have been given to him.
Ln,Din Muhammad and others v. Farooq Mirza P L D 1955 Sind 62, it was held that the compromise by the counsel was not valid, because the Vakalatnama did not confer specifically the power of compromise on the counsel. In the aforesaid case the reliance was placed on Rijharam Badaldas and others v. Vithaldas Jethanand and others A I R 1947 Sind 4, wherein it was held that power to compromise can be given to the attorney only in clear and unequivocal terms.
In Gul Taj Begum v. Lal Hussain and others P L D 1980 SC (AJ&K) 60, relying on cases reported as Muhammad Afsar Khan v. Khadim Hussain and others P L D 1978 SC (AJ&K) 143 and Messrs Eagle Star Insurance Co. Ltd. v. Messrs Usman Sons Ltd. and others P L D 1969 Kar. 123, it was observed that power of attorney should be strictly construed and its contents must be taken into consideration as a whole. It has also" been observed in the aforesaid cases that the important rule for construction of such a document is that the regard must be had to recitals keeping in view the object of the document which was executed for the .purpose. The general term occurring in a document executed for the purpose of appointing an attorney should be interpreted in view of the object for which such power of attorney was executed.
5. It is evident from the survey of case law cited above that it E is a settled principle of law that power of attorney should always be construed strictly and the powers which have not been specifically given to an attorney or do not flow from the contents of the document by necessary implications; those should not be deemed to have been conferred on the attorney concerned. In the instant case Muhammad Ashraf was appointed as attorney not to barter away the interest of the appellant by withdrawing the suit but to safeguard the interest of the appellant in proceedings taken in the suit. The appellant was careful enough to specifically state in clause 5 of the power of attorney, as pointed out earlier, that the attorney shall not be competent to alienate the suit land by sale, transfer or mortgage. Thus, it cannot be said by any stretch of imagination that although principal puts an embargo on the powers of the attorney so far as the sale, transfer or mortgage of the suit land was concerned, yet he empowers him to barter away the interest of the appellant by withdrawing the suit. Therefore, it is not correct to say that the attorney had the power to withdraw the suit by necessary implication.
In the light of what has been stated above, I accept the appeal, set aside the judgments and decrees of the Courts" below and restore the original suit of pre emption filed by the plaintiff/ appellant on its original number with the direction to the trial Court that it shall proceed with the trial of the same according to law. No order as to the costs.
I have had the advantage of perusing the order passed by my learned brother Mr. Justice Sardar Said Muhammad Khan and am in total agreement with the conclusion arrived at. However, I would like to state briefly my own humble approach to the controversial issue. The facts of the case need not be set out in extenso as they have been fairly dealt with in the order passed by my learned brother.
The principal point involved in the case is as to whether the attorney, by virtue of the document referred to in the judgment of my learned brother, had the authority to withdraw from the prosecution of the pre emption suit filed by the appellant
On the controversial point, it would be profitable to state general rules of construction of documents and deeds which the Court can call in aid to discover the intention of the author.
In the first instance the intention of the parties is to be collected from the document itself and not by the Court presuming an intention. This view prevailed as long as in the year 1881 in Smith v. Lucas (1881) 18 Ch. D. 531. Besides, .if the words in a document are express and clear, effect must be given to them and any extraneous enquiry into what was intended by the parties is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended by the parties. I am supported in my view in Cuunchun Jha v.
Ebadat Ali A I R 1954 SC 345. Mr. Justice Bose, speaking for the Court, observed:
"Where a document has to be construed the intention must be gathered in the first place, from the document itself. If the words are express and clear, effect must be given to them and any extraneous enquiry into what was thought or intended is ruled out. The real question in such a case is not what the parties intended or meant but what is the legal effect of the words which they used. If, however, there is ambiguity in the language employed, then it is permissible to look to the surrounding circumstances to determine what was intended."
Secondly; to find the intention of the parties expressed by the words used in a document, the document must be read as a whole. The words of each clause must be so interpreted as to bring them into harmony with the other provisions of the document; if that interpretation does no violence to the meaning" of which they are susceptible. This view prevailed as long as in the year 1865 in j Strand Music Hall Co. Ltd. [ (1865) 35 Beav. 153]. In fact, the best construction of deeds is to make one part of it expound the other, and so to make all the parts agree. Effect must, as far as possible, be given to every word and every clause.
The intention is ascertained by reading the terms of the deed as a whole, and giving to them the natural meaning of the language used. We have this view in Safiuddin Kazi v. Moslem Ali Howaldar PLD 1960 Dacca 555. In that case it was observed by Mr. Justice Hamoodur Rahman, J:
"The purpose of the interpretation of a document is to ascertain the true intent and purpose of the parties creating the document. For this purpose the entire document must be taken into account. No particular importance or weight to any particular portion or words in a document, is to be given unless and until it appears from the context of the words used in the other parts of the document as well that that particular words or that particular phrase was intended to be of such vital importance."
Thirdly; if there be two methods admissible for the constructions of a document, one which will give effect to all the clauses therein shall be preferred and the construction which will render one or more of the clauses nugatory shall invariably be avoided. Dealing with the point in Radha Sunder Dutta v. Mohd. Jahadur Rahim A I R 1959 SC 24, it has been observed:
"If there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim "ut res magis valeat quam pereat"." On the same principles a Court will lean to an interpretation which will effectuate rather than one which will invalidate an instrument.
Fourthly; since an instrument is to be construed to the intention of the parties as appearing from the whole of its contents, it follows that intention must not be defeated by too strict an adherence to the actual words, and any corrections may be necessary. Thus, any words which have been left out by mistake or may be added or supplied when it is clear from the instrument itself that they have been omitted by inadvertence. Hence comes the rule that when the Court can clearly collect from the language within the four corners of a deed, the real intention of the parties, it is bound to give effect to it by supplying anything necessarily to be inferred from the terms used, and by rejecting as superfluous whatever is repugnant to the intention so dismissed. Halsbury"s 3rd edition, Vol. II, page 413 may be referred.
Fifthly; if there are two clauses or parts of deed repugnant to each other, the first part will be received and the later rejected, unless there is some special reason to the contrary. Radha Sunder Dutta v. Mohd. Jahadur Rahim A I R 1959 SC 24 owns this view. In that case it has been observed by Venkatarama Aiyar, J:
"If, in fact, there is a conflict between the earlier clause and the later clauses and it is not possible to give effect to all of them, then the rule of construction is well established that it is the earlier clause that must override the later clauses and not "vice versa"."
This rule is subordinate to the general principle that the intention must be gathered from the entire contents of the deed. Hence, when one clause is in accordance with and the other is opposed h to the real intention, the former must be received and the latter
rejected whatever their relative position may be.
The fact that a clause in a deed is not binding cannot ipso facto render the whole deed void, unless it forms such an integral part as to render it impossible to sever the good from the bad. In K.D. Co. v. K.N. Singh A I R 1956 SC 446 it was held:
"The fact that a clause in a deed is not binding on the ground that it is unauthorised cannot ipso facto render the whole deed void, unless it forms such an integral part of the transaction as to render it impossible to sever the good from the bad.
Sixthly; as the,recitals are subordinate to the operative part, consequently, where the operative part, is clear, this is treated as expressing the intention of the parties, it prevails over any suggestion of a contrary intention afforded by the recitals. Where, however, the operative part is doubtful, then the recitals can be used to explain its meanings and while for the purpose of construing the operative part the whole of the instrument may be referred to, yet the recitals leading up to it are more likely to furnish the key to its true construction. Hence, as the recitals are statements introduced to explain or lead uD to the operative part of the dead.
(a) where the operative part is unambiguous, the recitals may not be resorted to control, cut down or qualify the operative part in any way; but
(b) where the operative part is ambiguous the recitals may then be resorted to for explaining the intention of the parties to the Court.
In a Privy Council case of Dilafroze v. Raja Gauhar Zamir Khan A I R 1946 PC 165 a Robkar of the British Government restored an estate to the proprietors J & P which had been escheated by the Sikh Government. The grant was subject to conditions which were prefaced by the recital "whereas it is desirable to provide against disputes concerning pre emption and inheritance in respect of the properties restored". Condition (ii) provided that the proprietary rights in the lands resorted to any proprietor shall, on the death of such proprietor are equally divisible among all his sons. Conditions (vi) Provided that if there was no male issue of J or P the grants which were restored to them would be given to such person or persons from amongst the descendants of D as were appointed by the Government under their orders. The provision in clause (iii) was that the Chiefship of the tribe alongwith the special properties attached to it which had been awarded by the Robkar to J shall devolve upon the death of the Chief upon such heir as was appointed by him as his successor with the concurrence of the Government, the Government would have the right to appoint as successor from amongst the descendants.
It was argued that the Robkar restored proprietary rights which would include a power of alienation as a normal incident of ownership, and that the purpose of Robkar was to settle the mode of inheritance and not to restrict alienation. Strong reliance was placed on the recital in the Robkar that it was desirable to provide against dispute concerning pre emption and inheritance, etc., no reference having been made to restricting alienation, and it was maintained that pre emption necessarily involve sale. The Privy Council held that: (1) the Robkar did not confer right of alienation on the grantees; (2) pre emption no doubt involved sale but the sale need not be of the lands comprised in the Robkar; the right of pre emption might be exercised by the owners of those lands on the sale of other lands and in this sense the use of the word might be explained; and (3) conditions (ii), (vi) and (iii) were quite inconsistent with the view that the lands comprised in the Robkar could be alienated at will by the proprietors. Thus, my view is that the recital as a whole is. to be read to have the intention of the document.
Seventhly; the words of written instrument must be generally taken in their ordinary sense. Notwithstanding the fact that such construction may appear not to carry out the view which it may be supposed the parties intended to carry out; but if the provisions and expressions are contradictory, and there are grounds appearing on the face of the instrument, affording proof of the real intention of the parties, that intention will prevail against the obvious and ordinary meaning of the words; where the literal construction would lean to an absurd result, and the words are capable of being interpreted so as to avoid this result, the literal construction will be abandoned. if, however, the intention is clearly and unequivocally expressed, then, however, capricious it may be, the Court is bound by it, unless it is plainly controlled by other parts of the instrument. i, Thus the words of a deed must be construed according to their natural meaning, and no amount of acting by parties can alter or; qualify, words which are plain and unambiguous. In view of the; above, I am of the view that there was no authority in Muhammad" Ashraf to effect withdrawal of the pre emption suit.
Eighthly; the Court will assume that a man using legal terms in a document intends them to have the meaning which the law attaches to them and evidence to show the contrary will not be received. In the instant case the phraseology used to the effect that the attorney holder will not be entitled to sell, dispose of, mortgage etc. the suit land, clearly conveys the sense that it was the least intention of the executor to give him authority to effect withdrawal of the pre emption suit.
It is also settled law that the words of deeds are to be taken most strongly against him who uses them. Where the Court can have two reasonable constructions, one favouring the person responsiblel for the difficult words or phraseology and the other one otherwise,
then the Court will adopt the latter.
Additionally the subsequent conduct of a party is an important consideration in interpreting a document. In Saeed Saigol v. Khurshid Hassan P L D 1964 SC 598 it was observed:
"The subsequent conduct of the appellant himself, to which reference has not been made in either of the judgments of the Courts below, seems also to be inconsistent with the postition now taken up by him."
Subsequent acts of the parties are admissible where the construction of a document is doubtful under the doctrine of contemporanea expositio and this is so whether the document be modern or ancient. However, in construing a document, whether in English or Urdu, the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. Ram Gopal v. Nand Lal A I R 1951 SC 139 owns this view. It has been observed in that case:
"In construing a document, whether in English or in vernacular, the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered but that is only for the purpose of finding out the intended meaning of the words which have actually been employed."
Likewise when the document is in foreign language or in code, extrinsic evidence is admissible to enable the Court to understand the document. I am, therefore, of the view that omission of the, power to withdraw the suit in the document clearly discards the intention of the executor to allow the attorney to effect withdrawal of the pre emption suit.
Let me see what do we mean by "power of attorney" The power of attorney is defined by section 2(21) of the Stamp Act 1899, as under:
" "Power of attorney" includes any instrument (not chargeable with a fee under) the law relating to court fees for the time being in force) empowering a specified person to act for and in the name of the person executing it."
Power of attorney or letter of attorney is an authority whereby one "is sect in the name, stead or place of another" to act for him. The authority in writing is the power of attorney. The person authorised to do any lawful act in the stead of another is called the attorney or the donee of the power of attorney. The person who gives the power is called the donor. The definition of power of attorney does not seek to include cases of contracts creating the relationship of principal and agent. A power of attorney enables the attorney not only to do lawful things on behalf of the principal so as to bind the latter but also to use latter"s name in the instruments executed by him as the attorney. In the instrument thus executed the principal himself figures as a party to the transaction though his name is written on seal used by the attorney as his attorney. In the case of agency the agent himself executes the instrument though the transaction is binding on the principal. The power of attorney, on the other hand, enables the person authorised not only to act on behalf of his principal but also to use the latter"s name in all the transactions effected by him in the capacity of an attorney. Where one is authorised in writing, on behalf of another, and in his name to do a lawful act, that is an appointment of an attorney within the meaning of the Stamp Act.
A power of attorney may be executed jointly by a number of persons as the principals. It may also be executed in favour of one person or a number of persons as the attorney or attorneys. A" power of attorney is either general or special. A power of attorney with regard to a single transaction is known as a special power of attorney. Where the power authorises the attorney to act generally or in more than one transaction it is known as a general power of attorney. But a general power of attorney can also be for specific purposes.
In view of the analysis made above I agree with my learned brother Mr. Justice Sardar Said Muhammad Khan that Muhammad Ashraf had no authority to withdraw from the prosecution of the pre emption suit and the power of attorney was only meant to prosecute the pre emption suit to his best and in the event the decree is passed, he was estopped by virtue of the provisions contained in the document to alienate/ transfer the land in dispute.
For the above stated reasons, accepting the appeal, I would set aside the judgment ibf all the Courts below in holding that Muhammad Ashraf, it 16se name the power of attorney was executed by the appellant, has no authority to withdraw the pre emption suit. The file shall go back to the original Court of civil jurisdiction for hearing under law.
For the above stated reasons we accept this appeal and set aside all the judgments of the subordinate Courts. The file shall go back to the original Court of civil jurisdiction for hearing under law.
A.A./238/S.C. (AJ&K)
Appeal accepted.
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