Property disputes often begin with trust. A father, brother, relative, or close person is given power of attorney to manage land, look after construction, supervise property, or deal with official matters. But what happens when that attorney uses the document to transfer the property as a gift to someone else? This Supreme Court judgment gives an important warning. A gift deed through power of attorney is not automatically valid merely because a power of attorney exists. The attorney must prove express permission, clear instructions, valid Hiba, and lawful delivery of possession. Otherwise, the gift can fail in court.
| Court Judgment Summary | |||
| Citation | 2024SCMR734 | Gift Deed Through Power of Attorney | |
| Court / Forum | Supreme Court of Pakistan | ||
| Hon’ble Judges | Chief Justice Qazi Faez Isa, Justice Muhammad Ali Mazhar and Justice Musarrat Hilali | ||
| Petitioner | Respondent | ||
| Babar Anwar | Muhammad Ashraf and another | ||
| Judgment Author | Justice Muhammad Ali Mazhar | ||
| Final Decision | Petition dismissed; leave refused; cancellation of gift deed maintained | ||
Table of Contents
Why This Judgment Matters for Pakistani Citizens
Every property owner should understand one thing: giving someone a power of attorney is serious. It may look like a simple document, but it can create major legal problems if it is misused.
This judgment matters because the Supreme Court explained that a gift deed through power of attorney cannot stand unless the attorney proves that the real owner gave express permission and instructions for that gift.
In Pakistan, many people give power of attorney to relatives for convenience. Sometimes the owner is abroad. Sometimes the owner is old or sick. Sometimes the attorney is a trusted family member. But trust alone is not enough. If the attorney gifts the property without clear consent, the courts can cancel the transaction.
This case is especially important for families, overseas Pakistanis, property owners, daughters and sons, and anyone dealing with gift deeds, hiba, or general power of attorney.
Background of the Case
The property originally belonged to the father of Muhammad Ashraf, respondent No. 1. The father gifted the property to Muhammad Ashraf through gift deed No. 100 dated 10 January 1978 and also handed over possession to him.
After receiving the property, Muhammad Ashraf raised construction on the land. Later, on 1 March 2006, he executed a power of attorney in favour of his father for administration and supervision of the property.
The dispute started when the same father, acting as attorney, executed another registered gift deed dated 24 September 2011 in favour of Babar Anwar, the petitioner.
Muhammad Ashraf then filed a suit for declaration and cancellation of the registered gift deed. His plea was that his father, due to old age and cardiac issues, was not in a proper frame of mind and that the later gift deed was the result of connivance and disingenuousness.
This background made the case a strong example of dispute over a gift deed through power of attorney.
What the Trial Court, Appellate Court and High Court Decided
The Trial Court recorded evidence and decreed the suit in favour of Muhammad Ashraf on 20 February 2020.
Babar Anwar filed an appeal before the District Judge, but the appeal was dismissed on 4 February 2021.
After that, he filed a civil revision before the Lahore High Court, Rawalpindi Bench. The High Court also dismissed the revision on 17 September 2021.
Finally, Babar Anwar came before the Supreme Court of Pakistan through a civil petition.
The important point is that three courts below had already decided against the petitioner. The Supreme Court then examined whether there was any serious misreading, non-reading, illegality, or material irregularity in those concurrent findings.
Main Legal Question Before the Supreme Court
The main question was simple but very important:
Can an attorney use a general power of attorney to gift the principal’s property to another person without proving express permission and consent of the principal?
The Supreme Court’s answer was clear.
An attorney or agent may gift property only when there is express permission and instructions from the principal. In this case, there was no cogent evidence that the attorney ever asked for permission or consent from Muhammad Ashraf to gift the property to Babar Anwar.
Therefore, the gift deed through power of attorney was not validated by the courts.
Arguments of the Petitioner’s Lawyer
The petitioner’s lawyer argued that a valid registered gift deed was available on record. He submitted that the courts below misread the evidence.
He also argued that the Sub-Registrar appeared before the Trial Court and verified the contents of the registered document. Another important argument was that a witness had remained tenant on the property and deposited rent in the petitioner’s bank account from 2012 till September 2015.
The petitioner also said that he was a permanent resident of the United Kingdom and that, in his absence, Muhammad Ashraf forcibly took possession of the property. He had already initiated criminal proceedings under the Illegal Dispossession Act, 2005.
Finally, the petitioner argued that the power of attorney itself authorized the attorney to gift the property; therefore, there was no need to ask for fresh consent or permission from the principal.
These arguments were important, but the Supreme Court did not accept them.
Respondents’ Side Before the Supreme Court
The judgment records that the respondents were not represented before the Supreme Court.
Even then, the Supreme Court examined the record, the facts, the gift deed, the power of attorney, possession documents, previous cases, and the concurrent findings of the courts below.
This shows that even where one side is not represented, the Court can still examine whether the lower courts acted legally and whether the record supports their conclusions.
Gift Deed Through Power of Attorney Needs Express Consent
The strongest legal point in this judgment is that a gift deed through power of attorney requires express permission and instructions from the principal.
The Supreme Court noted that nothing on record showed that the general attorney obtained permission or consent from the principal before transferring the property by way of gift to the petitioner.
The Court also noted that it was never pleaded that the earlier gift in favour of Muhammad Ashraf had been revoked for any reason.
This matters because the original owner had already gifted the property to Muhammad Ashraf in 1978 and possession was handed over. Later, Muhammad Ashraf only gave power of attorney to his father for administration and supervision. That did not automatically mean the father could gift the property away to another person.
For ordinary citizens, the lesson is very clear: a power of attorney is not a blank cheque. If an attorney wants to gift property, he must show clear authority, express permission, and real instructions.
Why the Petitioner’s Sale and Gift Pleas Were Contradictory
The Supreme Court also noticed a major contradiction in the petitioner’s defence.
On one side, the petitioner claimed that he had purchased the property for valuable consideration. On the other side, he also claimed that he was a lawful donee under a gift deed.
The Court said these two pleas were mutually destructive.
If it was a gift, then the plea of sale was misleading and erroneous. If it was actually a sale for valuable consideration, then there was no logical reason to execute a gift deed instead of a conveyance deed.
This is a powerful point for property litigation. A person cannot safely say at the same time: “I bought the property” and “I received it as a gift.” Sale and gift are legally different.
A gift deed through power of attorney must be genuine, voluntary, and without consideration. If the transaction was actually based on payment, then it should not be hidden under a gift deed.
Possession Was a Key Factor
Possession is one of the most important elements in gift and hiba cases.
The petitioner’s side claimed that possession was delivered at the time of transfer, but later it was snatched by Muhammad Ashraf.
The Supreme Court found that this assertion was belied by the record. Muhammad Ashraf produced copies of Form P.T.I, electricity bills, and gas bills to prove his possession over the property.
The petitioner had also filed a complaint under Section 3 of the Illegal Dispossession Act, 2005 against Muhammad Ashraf and his special attorney. But the Trial Court acquitted them, and the Lahore High Court upheld that acquittal.
This part of the judgment shows that courts do not decide possession merely on words. Utility bills, tax forms, occupation evidence, construction, and previous criminal proceedings can become important.
For a valid gift deed through power of attorney, proving possession is not a formality. It can decide the fate of the case.
What Is a Valid Hiba Under Muslim Law?
The Supreme Court discussed the meaning and requirements of hiba in detail.
The Court explained that hiba is a voluntary transfer of property without consideration. It must be immediate and without exchange.
The Court referred to legal writers and Islamic law principles and explained that the donor must be of sound mind, of age, and owner of the property intended to be gifted. The property must exist at the time of gift. The donor must be free from coercion, duress, and undue influence.
Most importantly, the donee must receive possession. Under Muslim law, the basic ingredients of a valid gift are:
Tender / declaration
Acceptance
Delivery of possession
The donor must clearly show intention to transfer ownership and must divest himself from dominion over the property. The donee must secure physical control over the property.
This means a gift deed through power of attorney cannot be treated as valid only because a document is registered. The substance of hiba must also be proved.
Why the Donor Must Be the Real Source of Love and Affection
The Supreme Court made a very interesting observation. A gift usually arises out of love, affection, kindness, or sometimes because the donee served the donor.
But where an attorney makes the gift, the real question is: whose love and affection is being used?
The Court explained that love or affection must proceed from the original and real owner of the property. A delegate or agent cannot supply it.
In simple words, if the real owner did not personally intend to gift the property, the attorney cannot create that intention on his own.
This is a very important principle for any gift deed through power of attorney. The attorney’s personal feelings or personal relationship with the donee cannot replace the principal’s intention.
Why Depriving Children Looked Unnatural
The Supreme Court also noted that Muhammad Ashraf had two sons and four daughters.
The Court observed that there was no reason on record to explain why Muhammad Ashraf would deprive his own children and instruct his attorney to gift the property to Babar Anwar.
This was not the only reason for dismissing the petition, but it strengthened the Court’s view that the alleged gift was suspicious.
In family property matters, courts often look at natural conduct. If a person allegedly gives away valuable property to someone else while depriving his own children, the court may ask for strong proof of intention, consent, and possession.
That is why a gift deed through power of attorney must be supported by convincing evidence.
Previous Supreme Court Judgments Discussed
The Supreme Court relied on earlier important judgments about attorney powers and property transfers.
1. Jamil Akhtar v. Las Baba — PLD 2003 Supreme Court 494
In this case, the Supreme Court held that whenever a general attorney transfers the property of his principal in his own name or in favour of close fiduciary relations, he must take special permission from the principal.
This principle supports the idea that a general power of attorney is not enough for suspicious or self-benefiting transfers.
2. Muhammad Ashraf v. Muhammad Malik — PLD 2008 Supreme Court 389
The Court referred to the rule that if an attorney wants to sell or gift property in his own favour or in favour of his close relative, he must consult the principal and obtain consent and approval after disclosing all material circumstances.
This case is directly relevant to gift deed through power of attorney disputes because consent of the real owner is central.
3. Mst. Naila Kausar v. Sardar Muhammad Bakhsh — 2016 SCMR 1781
The Court reiterated that an attorney cannot use powers conferred upon him to transfer property to himself or to his kith and kin without special and specific consent and permission of the principal.
The Court also said power of attorney cannot be used for a gift without the intention and direction of the principal being proved on record.
4. Allah Ditta v. Manak — 2017 SCMR 402
The Court referred to the principle that it may appear unnatural when a person deprives his own children and gives property to others, unless strong proof supports the alleged gift.
The Court also noted that mutation is only a manifestation of an oral transaction and does not automatically carry presumption of correctness in such circumstances.
These authorities make the Supreme Court’s message very clear: property transfer through attorney requires special caution.
Why Registration Alone Was Not Enough
A registered gift deed can be strong evidence, but registration alone does not cure every legal defect.
In this case, the petitioner argued that the Sub-Registrar had verified the registered document. But the Court looked deeper.
The Court considered whether the attorney had authority to gift. It examined whether the principal’s permission was proved. It considered whether possession was delivered. It looked at contradictory pleas of sale and gift. It also considered the earlier gift in favour of Muhammad Ashraf and the fact that it was never shown to have been revoked.
Therefore, a gift deed through power of attorney needs more than registration. The party relying on it must prove authority, intention, consent, possession, and consistency.
Role of Concurrent Findings
The Trial Court, Appellate Court, and Lahore High Court had all decided against the petitioner.
The Supreme Court explained that the High Court’s revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908 is limited. The High Court has to see whether the lower courts acted within jurisdiction, committed illegality, violated law, or made material procedural errors.
The Supreme Court observed that the concurrent findings of the courts below were not based on misreading or non-reading of evidence and did not suffer from illegality or material irregularity.
This is why the Supreme Court did not interfere.
For litigants, the lesson is important: once three courts record concurrent findings on facts, it becomes difficult to overturn them before the Supreme Court unless a serious legal defect is shown.
For further reading, citizens may study the Specific Relief Act, 1877, which deals with declaration and cancellation of legal instruments.
Readers may also study the Code of Civil Procedure, 1908, to understand revisional jurisdiction and civil court procedure.
Final Decision of the Supreme Court
The Supreme Court held that the High Court judgment did not suffer from misreading, non-reading of evidence, illegality, or irregularity.
The civil petition was dismissed and leave was refused.
This means the cancellation of the registered gift deed remained intact, and the plaintiff’s suit remained rightly decreed.
The final result protects the rule that an attorney cannot casually transfer property as a gift without the principal’s express permission and instructions.
This judgment is therefore a strong authority on gift deed through power of attorney in Pakistan.
Practical Lessons for Pakistani Citizens
Before relying on any gift deed through power of attorney, citizens should carefully check the authority, consent, possession, and purpose of the transaction.
A property owner should never sign a power of attorney without understanding its scope.
A person receiving property through an attorney should verify whether the principal gave express permission for the gift.
A registered document may still be challenged if the underlying authority is doubtful.
A person cannot safely claim that the same property was both purchased and received as a gift.
Possession should be supported by real documents such as utility bills, tax records, construction evidence, and occupation history.
If an attorney gifts property to himself, relatives, or outsiders in suspicious circumstances, courts may demand strong proof.
This judgment teaches that a gift deed through power of attorney can fail if it is not supported by lawful authority and genuine hiba requirements.
You may also read our guide on gift deed in Pakistan to understand valid hiba, possession, and property transfer disputes.
Key Takeaways
- Gift deed through power of attorney is not automatically valid.
- An attorney must prove express permission and instructions from the principal.
- A general power of attorney is not a blank authority to gift property.
- Valid hiba requires declaration, acceptance, and delivery of possession.
- Registration alone does not prove a valid gift.
- Conflicting pleas of sale and gift can damage a party’s case.
- Possession must be proved through reliable evidence.
- An attorney’s personal love or affection cannot replace the principal’s intention.
- Courts view suspicious property transfers with caution.
- Supreme Court dismissed the petition and maintained cancellation of the gift deed.
Conclusion
This Supreme Court judgment is an important guide for anyone dealing with gift deed through power of attorney.
The Court made it clear that property cannot be taken away from the real owner through vague authority, doubtful intention, or suspicious use of power of attorney. A valid gift requires clear intention, real authority, acceptance, possession, and honest conduct.
For ordinary citizens, the message is simple: be careful before signing a power of attorney. For buyers and donees, the message is equally clear: do not rely only on a registered gift deed. Check whether the attorney had express permission to gift the property.
For lawyers and students, this judgment is a useful precedent on hiba, power of attorney, possession, conflicting pleas, and cancellation of gift deeds.
In simple words, a gift deed through power of attorney must be backed by clear consent, lawful authority, and genuine delivery of possession. Otherwise, it may not survive in court.
Disclaimer
The content on Qanooni Dastak is for legal awareness and educational purposes only. It is not professional legal advice. For any personal legal matter, readers should consult a qualified lawyer.
FAQs
What was the main issue in 2024 SCMR 734?
The main issue was whether a registered gift deed executed through a general power of attorney was valid when express permission and consent of the principal were not proved.
What is gift deed through power of attorney?
A gift deed through power of attorney means a property gift made by an attorney on behalf of the real owner or principal.
Can an attorney gift property in Pakistan?
Yes, but only if the attorney has express permission and clear instructions from the principal to gift that property.
Is general power of attorney enough to gift property?
Not always. The Supreme Court has held that special permission and specific consent may be required, especially where the transfer is suspicious or benefits the attorney or connected persons.
What are the ingredients of valid hiba?
Valid hiba requires declaration/tender, acceptance, and delivery of possession.
Does registration prove a valid gift deed?
Registration is important, but it is not enough if authority, consent, possession, or intention is not proved.
Why did the Supreme Court reject the petitioner’s case?
The petitioner failed to prove express permission from the principal, relied on contradictory pleas of sale and gift, and could not defeat the respondent’s evidence of possession.
What evidence helped prove possession?
Form P.T.I, electricity bills, gas bills, construction, and previous litigation helped support the respondent’s possession.
Can a person claim property as both sale and gift?
Such contradictory pleas can seriously weaken the case because sale and gift are legally different transactions.
What is the final lesson of this judgment?
The final lesson is that a gift deed through power of attorney must be supported by clear authority, express consent, valid Hiba, and delivery of possession.