KNOWLEDGE FOR ALL: November 2015

Thursday, November 26, 2015

Custody of minor girl to father

Mother's claim for guardinship of minor daughter, second marriage by mother with a person not related to minor within prohibited degree, father haveing three children from second marriage– validity– mere second marriage by father would not disentitle him from getting custody of his minor daughter– mother, according to Islamic Law, despite being entitled to custody of her minor daughter would become disentitled, if she took second husband not related to minor within prohibited degree, thus custody of minor in such case would belong to her real father. Custody of minor daughter was directed to be handed over to her father in cicumstances (2014 SCMR 343)

Defamation suit

under section 3 of the defamation Ordinance 2002— scopoe…. When no publication was made in any newspaper or at any open or public place, defamation is not alleged and case does not fall under the defamation Ordinance 2002

PLD 2015 Sindh 83

Compulsory Registration

Section 17 and 49 of Registration Act (XVI of 1908)…. document registration of….. scope… every document purporting to create any right. title or interest of the value of Rs.100 and upward would require compulsory Registration

2015 CLC 385 Baluchistan

Divorce through SMS

Divorce through SMS

Article 73 of Qanun-e-Shahadat Information conveyed over modern devices such as SMS – such information is means to communication validly accepted all over the world, however the witness in whose presence such information is conveyed or received is always important to prove a fact through its verification — Although under article 73 of Qanoon e Shahadat 1984 modern devices are legally acceptable yet in order to prove a fact, the required procedure has to be followed.

PLD 2015 Lahore 231

specific performance on un-registered power of attorney sale agreement

Order V rule 15 CPC 1908, Registration Act 1908, Section 17 of Specific Relief Act 1877, Section 12 Suit for specific Performance of contract… Owner of Property an illiterate lady.. Agreement to sell through attorney.. Power of attorney, nonregistration of … effect… summons of services of … Scope. Service of summons on maid of defendant in a suit was not a proper service.. Plaintiff had failed to place on record any registered power of attorney.. Seller (owner) title document should be registered for the purpose of alienation of immoveable property… if immoveable property was sold though power of attorney then same should have been registered and without the same attorney could not be deemed to have been duly authorized to sell the property… General power of attorney in the present case was not a register documents therefore agreement of sale through attorney of actual owner on the basis of said power of attorney was no enforceable in law… court had to be even more careful in a case of an immoveable property of an illiterate woman.. Suit was dismissed in circumstances.

2015 CLC 1071 Sindh

Claim on Breach of Contract

Section 55 of the Contact Act 1872, Breach of Contract… claim for damages—- Scope—party could maintain his right to claim damages with reference to a breach of contract but such right would not be available for the party with reference to natural local or international changes causing effect upon value of the subject of contract particularly when this was not so mentioned in the agreement.

PLD 2015 Sindh 481

Lien/Right of Banker to set off

Lien/Right of Banker to set off

section 171 contact Act, lien / right of banker to set off — principle—Banker and customer – even under the law which provided for recovery through coercive process csuch as land revenue, determination of amount due is an essential pre-requisite—bank cannot be conferred with judicial powers for determination of amount due against its customer/borrower – right/power to sell off is available only where amount claimed is due and is certain and determined by competent judicial forum.

2015 SCMR 1341

Un-Registered Document to sell

Under section 9 of the transfer of the property Act 1908, documents of agreement to sell does not create any legal title but creates a right to obtain another documents for example registered sale deed. Agreement to sell by itself cannot confer any title on the vendee because the same is not a title Deed. Agreement to sell does not require compulsory registration as held by Hon’able Supreme Court in case of Muhammad yousuf versus Munawar HUSSAIN and five others reported in 2000 SCMR 204 which is as under:

“In this view of the matter the right course for the petitioner would have been to institute a suit for specific performance if at all such agreement was executed. The agreement to sell by itself cannot confer any title on the vendee because the same is not a title deed and such agreement does not confer any propriety right and thus it is obvious that the declaratory decree as envisaged by section 42 of the specific Relief Act cannot be awarded because declaration can only be given in respect of legal right or character. The only right arising out of any agreement to sell is to seek its specific performance and in case the vendee has been put in possession the same is protected under section 53-A of the Act.”

Sub-Power after the death of Principle Party

Section 201 contract Act 1872, constitution of Pakistan article 185(3), sub power of attorney— issued by attorney after death of principal…effect… claim of petitioner/purported purchaser over suit property was based on the conveyance deed executed by the sub attorney of the respondent seller.. validity.. alleged power of attorney issued by respondent in favor of attorney was terminated on the death of respondent principal, therefore the attorney was not authorized to execute a sub power of attorney after death of the principal. In such circumstances the sub power of attorney was invalid and of no legal effect and sub attorney was not authorized to sell the property to the petitioner vide conveyance deed,. Further the purported purchase was the real mother of the sub attorney and as the time of alleged sale of property to her vide conveyance deed sub attorney made no efforts to obtain consent of attorney or principle seller, who has died by that time… petition for leave to appeal was dismissed accordingly and leave was refused (PLD 2014 Supreme Court 794)

Compulsory Registration

2015 CLC 385 Baluchistan