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Petitioner: SHER BAZ KHAN and 73 others VS Respondent: Mst. Malkani SAHIBZADI TIWANA and 2 JUDGMENT
Court Name: Lahore High Court Judge(s): Ch. Mushtaq Ahmad Khan, Muhammad Aqil Mirza Title:SHER BAZ KHAN and 73 others vs Mst. Malkani SAHIBZADI TIWANA and 2
JUDGMENT
Reported As: PLD 1996 Lahore 483 Result: Appeals dismissed Judgment JUDGMENT ' CH. MUSHTAQ AHMAD KHAN, J.--This judgment shall dispose of R.F.A. No,6 of 1990 (Sher Baz Khan and others v. Mst. Malkani Sahibzadi Tiwana and 2 others and R.F.A. No,7 of 1990 (Batti Khan and others v. Mst. Malkani Sahibzadi Tiwana and 5 others) as the same arise out of two identical suits, filed by respondent No,1 which have been decreed by the learned trial Court vide consolidated judgment and decree dated 14-12-1989 and involve indentical factual and legal questions. 2. Briefly stated the facts, out of which these appeals have arisen are that Mst. Malkani Sahibzadi Tiwana, respondent No,1 in both, the appeals, is owner of agricultural land in village Kalra, Tehsil Shahpur, District Sargodha. Land measuring 1983 Kanals out of the aforementioned agricultural land was transferred in the names of Malik Shahbaz Khan, deceased predecessor-in interest of appellants Nos.1 to 3, Muhammad Nazir, respondent No,2, Ghulam Muhammad, appellant No,4, Shah Jehan, deceased predecessor of appellants No,5 to 8 (in R.F.A. No,6/1990) and Sultan Mahmood, defendant No,5 (in Civil Suit No,1/1 of 1988), vide Mutation of oral sale No,46 Exh.P.A., sanctioned on 19-6-1970 by the Assistant Collector II, Shahpur, District Sargodha for a consideration of Rs,3,71,953. At that time respondent No,1 was minor. The mutation is shown to have been entered on the basis of an oral transaction of sale by Messrs Sh. Zahoor Ahamd and Malik Shahbaz Khan, alleged general attorneys of the father of minor respondent No,1, as per report in Roznamcha Waqiati No,337 (not produced in evidence). ' At the time of attestation of the mutation Messrs Ahmad Ali, a member of Union Council Kalra and one Muhammad Yar are recorded to have appeared as identifiers, whereas Malik Khizar Hayat Khan Tiwana father of respondent No,1 has also been marked present. No part of the amount of
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consideration has been paid before the Assistant Collector II, payment whereof and delivery of possession had been recorded to be admitted before the Assistant Collector concerned. This sale/mutation is the subject-matter of Civil Suit No,1/1 of 1988 and, hence, R.F.A. No,6 of 1990, which arises out of the said suit. 3. Land measuring 992 Kanals, situated in the same village, has been sold in favour of Muhammad Aslam, Ahmad Khan and Col. Shabbir Hussain Shah, respondents Nos.2 to 4 (predecessor-in- interest of the appellants (R.F.A. No,7 of 1990), vide Mutation of sale No,80 Exh.P.C., sanctioned on 12- 12-1974 by the Assistant Collector H, Shahpur, District Sargodha for a consideration of Rs,4,04,240. This mutation has been entered on the basis of an alleged transaction of sale entered into between the aforementioned vendees and Sh. Zahoor Ahmad and Muhammad Nazir, respondents Nos.5 and 6, who alleged themselves to be the General Attorneys of respondent No,1 vide registered deed of power of attorney dated 27-1-1971 (original or copy thereof is not produced in evidence). ' At the time of sanctioning of the mutation, Messrs Sahib Khan, Sarbrah Lambardar, Muhammad Sher and Malik Shahbaz Khan appeared as identifiers, whereas Sh.Zahoor Ahmed and Muhammad Nazir respondents Nos.5 and 6 appeared as General Attorneys of respondent No,1 and admitted the receipt of consideration as well as change of possession, on the basis whereof mutation was sanctioned by the Assistant Collector H concerned. This transaction is the subject-matter of Civi' Suit No,2/1 of 1988, and, hence, R.F.A. No,7 of 1990 which arises out of the said suit. 4. On coming to know of both the transactions of sale, respondent No,1, on obtaining of copies of the two mutations, who was born on 13-12-1957 as established from the original certificate issued by Board of Intermediate and Secondary Education, Sargodha, Exh. P.W.2/1, challenged both the sale/alienations/mutations in Civil Suits Nos.1/1 and 2/1 of 1988/Civil Suits Nos.1124 and 1123 of 1978 filed on 9-12-1978 as being illegal, unauthorised and inoperative against her ownership and possessory rights, inter alia, on the grounds that the disputed transactions have taken place during the time when she was a minor, that the sales are unauthorised and based on fraud, and that no sale is for her welfare. Both the suits have been contested on the grounds that the mutations of sale are valid in law and the vendees have purchased the suit land for consideration, from authorised persons i,e, father of the respondent No,1, who was her natural guardian and from her duly appointed general attorneys. The suits were consolidated by the learned trial Court vide order dated 18-1-1981 and the proceedings have been held in Civil Suit No,1/1 of 1988. 5. On the basis of the pleadings of the parties, learned trial Court initially settled the following preliminary issues:-- (1) Whether the suit is barred by limitation? OPD. (2) Whether the suit suffered from laches and is liable to be dismissed as such? OPD ' The abovementioned issues were decided in favour of the plaintiff vide order dated 10-6-1984, whereafter the following consolidated issues on merits were settled:-- (1) Whether the defendants Nos.1 and 6 had valid authority to make any statement on behalf' of the plaintiff for sanctioning the impugned Mutation No,46? OPD. (2) Whether the father of the plaintiff was not competent to make any statement in regard with getting the impugned Mutation sanctioned No,46 before the Revenue Officer as a natural guardian of the plaintiff? OPP (3) Whether the father of the plaintiff did not make any statement in regard with sanctioning the impugned Mutation No,46 before the Revenue Officer? OPP. (4) Whether the impugned Mutation- No,46 is fraudulent transaction and is based on misrepresentation and the impugned mutation is void, illegal and ineffective against the rights of the plaintiff? OPP. (5) Whether the alleged sale under the impugned mutation was for the benefit of the plaintiff and it was with consideration? OPD
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(6) Whether the plaintiff has no cause of action against the defendants in respect of suit relating to Mutation No,46? OPP. (7) Whether the father of the plaintiff was not competent to authorise defendants Nos.4 and 5 to get sanctioned the impugned Mutation No,80 on his behalf in respect of the land belonging to the plaintiff? OPP. (8) Whether defendants Nos.4 and 5 had valid power of attorney in their favour from the plaintiff to get the impugned Mutation No,80 sanctioned on her behalf? OPD (9) Whether the alleged sale by virtue of Mutation No,80 was fraudulent transaction and the transaction is invalid, void, without lawful authority and of no effect against the rights of the plaintiff? OPP (10) Whether the impugned sale by virtue of Mutation No-.80 was in the benefit of the plaintiff and was with consideration? OPD (11) Whether the plaintiff is estopped by her conduct to bring the suit in regard with Mutation No,80? OPD (12). Whether the plaintiff has no cause of action against the defendant in respect of suit relating to Mutation No,80? OPP. (12-A) Whether the defendant No,3 has violated the orders of the Court for maintaining status quo with regard to the disputed property? If so, its effect? (12-B) Whether this Court lacks jurisdiction to entertain the application under Order 39, Rule 2, C.P.C.? (13) Relief. 6. In order to support her case, the plaintiff has produced her mother Begum Zainab Tiwana as P.W.1, herself appeared as P.W.2 and Sahibzada Abbas Ali had appeared as P.W.3. Besides oral evidence, she has produced Mutation No,46 as Exh.P.A., which has also been marked as D.W.4/1, copy of Mutation No,51 Exh.P.B., copy of Mutation No,80, Exh.P.C., copy of Mutation No,83 Exh.PD, copy of Mutation No,5 Exh.P.E and the documents Exh.P.W.1/A (Nikahnama of mother of respondent No,1) Exh.P.W.2/1 (Matriculation Certificate), Exh.P.W.2/11 (copy of birth entry of the respondent No,1) and documents Exhs.P.F to P.N. Have also been produced in her evidence. As against the above evidence, the defendants have produced in evidence Muhammad Nawaz D.W.1, Muhammad Khan D.W.2, Dost Muhammad Patwari D.W.3, Sh. Zahoor Ahrnad defendant D.W.1, Malik Shahbaz Khan defendant D.W.2 and Sikandar Hayat general attorney of Malik Shahbaz Khan D.W.4 and also documents Exh.D.1 (register accounts) Exh.2. (last will of Malik Khizar Hayat dated 10-11-1967 wherein respondent No,1 is written as aged 11 years), Exh.D.3 (affidavit of respondent No,1 dated 23-7-1975 wherein respondent No,1 has described herself as major), Exh.D.4. (decision report dated 15-8-1959 if Deputy Land Commissioner, Shahpur), Exh. D.W.4/A (general power-of-attorney in favour of Sikandar Hayat by Malik Shahbaz Khan), Exhs.D.4/B to D.W.4/L (letters), Exh.D.W.4/M (agreement for sale dated 16-7-1974), Exh.D.W.4/N (statement of Muhammad Nazir), Exh.D.6 (Mutation No,267 dated 28-8-1965), Exh.D.7 (copy of part patwari) and Exh.D.8 (copy of Register Haqdaran Zamin). 7. After recording of evidence, learned trial Court decided issue No,1 against the defendants on the ground that the defendants Nos.1 to 6 in Civil Suit No,1/1 of 1988 have not produced the document of general power of attorney allegedly executed by Malik Khizar Hayat Khan Tiwana, father of the plaintiff, in favour of Sh. Zahoor Ahmad and Malik Shahbaz Khan, the attested copy of general power of attorney alleged to have been executed in favour of respondents Nos.5 and 6 was disallowed to be produced in evidence vide order dated 1-3-1988, which was upheld in civil revision by this Court vide judgment dated 4-9-1988, and that oral evidence produced by the defendants does not prove that father of the plaintiff or the plaintiff had ever given general power of attorney to Sh. Zahoor Ahmad and others. Issue No,2 had been decided against the defendants on the ground that the mutations of sale have been sanctioned at the time when the plaintiff was minor,
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that the alleged sale of land by her father is violative of the provisions of paragraph 362 of the Mohammadan Law. While deciding issue No,3 against the defendants, learned trial Court had held that mutation dated 19-6-1970 Exh.P.A. Was attested on the identification of Ahmad Ali, Member Union Council, and one Muhammad Yar. But neither they nor Assistant Collector II have been produced in evidence, hence, it cannot be said that sufficient evidence to prove the transactions of sale has been brought on record. Evidence of D.W.1 to D.W.4 has also been disbelieved. Issue No,4 has been decided in favour of the plaintiff for the reasons which have found favour with the learned trial Court for deciding issue No,3 against the defendants. Issue No, 5 has also been decided against the defendants and it has been held that it does not stand established on record that the sale in question was for the welfare of the minor. It has further been held that the sale was without consideration. Issue No,6 has been decided in the negative, for the reasons which have found favour with the learned trial Court for deciding issues Nos.1 to 5. Issue No,7 has been decided against the defendants on the ground that the deed for power of attorney on the basis whereof the land which is the subject-matter of Civil Suit No,2/1 of 1988, has been sold, is alleged to have been executed on the date when the age of the plaintiff was 14 years and some days, and further for the reasons that no deed of power of attorney allegedly executed by respondent No,1 in favour of defendants Nos.4 and 5 has been produced in evidence, therefore, no valid sale is proved to have been effected by defendants Nos.4 and 5 on the basis whereof mutation of sale could have been sanctioned. Issue No,8 has been decided against the defendants for the reasons recorded on issue No,7 and also for the added reason that Muhammad Nazir, who purported to have got the mutation of sale attested as general attorney has filed an affidavit in negation of the mutation in dispute. Further, he has categorically stated that he did not appear before the Assistant Collector for the attestation of the mutation and the affidavit filed by him has not been controverted by a counter-affidavit. Other issues have also been decided against the defendants and in favour of the plaintiff, as a result whereof both the suits have been decreed by the learned trial Court vide judgment and decree dated 14-12-1989. Hence, these appeals. 8. Mr. Muhammad Munir Badar, Advocate has appeared on behalf of the appellants in both the appeals, whereas Mr. Jawad S. Khawaja, Advocate has entered appearance on behalf of respondent No,1. None has appeared on behalf of other respondents, who have been proceeded against ex parte. 9. Learned counsel for the appellant has challenged the findings of the learned trial Court on preliminary issue No,1 and issues Nos.1 to 12 on merits. As all the above-referred issues are inter- linked, learned counsel has opted to address consolidated arguments in relation thereto, which have agreed to be disposed of by the learned counsel for both the parties in consolidated form, except the issue of limitation. 10. In support of his case, learned counsel for the appellants has raised the following contentions:-- (i) That the transactions of sale, on the basis whereof both the mutations of sale have been sanctioned, are proved on record by positive evidence led by the defendants, therefore, findings rendered by the learned trial Court on all the issues referred to above are based upon misreading of evidence and, hence, are illegal and liable to be set aside. (ii) That at the time of first sale although the plaintiff/respondent was minor, yet, the said sale had been made with consent of her father, who was her legal guardian and, hence, was possessed of the authority to sell her property for her welfare and as the sale had been effected by him for the welfare of the minor, therefore, the same is not challengeable in law and even otherwise the plaintiff stood by the said sale up to the year 1978, therefore, is estopped to file the suit there- against as the transaction shall be amounted to have been ratified by her after attaining of majority.
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(iii) That the plaintiff-respondent became major in July, 1975, but did not object to the impugned transactions of sale/mutations, hence, the same are protected under the provisions of section 41 of the Transfer of Property Act and are not challengeable by the plaintiff on the ground of lack of authority of the attorneys and also on the ground of minority. (iv) That both the sale transactions are with consideration and have been entered into for the welfare and benefit of respondent No,1, therefore, the same cannot be avoided by her as she has received and utilized the consideration amount of the said transactions. (v) That both the suits are barred by time as the same have been filed beyond a period of three years with effect from the date of attainment of the majority by respondent No, 1. 11. In support of his contentions, learned counsel has taken us through the evidence produced by both the parties. He has referred to certain documents on record in order to show that at certain occasions, respondent No,1 has posed herself to be major prior in July, 1975, but the suits are filed in December, 1978, He has also taken us through certain letters in order to demonstrate that Malik Khizar Hayat Tiwana, father of respondent No,1, had full confidence in Malik Shahbaz Khan deceased who was working as his Mukhtar-e-Aam and, therefore, it is in this background that the transactions of sale have been made without getting anything in black and white from the vendors except getting of the mutations of sale sanctioned on the basis of oral sales. It is maintained that it is clear from the wording of the said letters that at various times Malik Khizar Hayat Khan Tiwana has been asking his attorneys to deposit various amounts in various Bank accounts and, therefore, according to him, it stands established on record that the sales had been made as an act of good management of the property of the minor for her welfare. As regards limitation, learned counsel has reiterated his contention and has further contended that ordinarily the transactions of sale of the type in question would only have been challenged within a period of one year or at the most three years and as both the suits have been filed in the year 1978, same are liable to be dismissed as being barred by time even if the benefit of provision of section 6 of the Limitation Act is given to the respondent No,1 as both the suits have not been filed within three years from the date of attaining of the majority by respondent No, 1 . ' On our query, learned counsel has, however, conceded that at the time of sanctioning of Mutation No,46, respondent No,1 was minor, that the said mutation was entered on the basis of the statement of Messrs Sh. Zahoor Ahmad and Malik Shahbaz Khan, that the abovesaid two persons posed themselves as attorneys of the father of respondent No,1, that the copy of the deed of power of attorney has not been led in evidence, that the witnesses, who appeared at the time of attestation of Mutation No,46 as identifiers i,e, Ahmad Ali and Muhammad Yar and the Assistant Collector II, who sanctioned the mutations, have not been produced as witnesses by the defendants, that there is no writing/receipt deed of acknowledgement evidencing the payment of sale price in both the cases, that there is no evidence on record to prove that some other property was purchased in the name of respondent No,1 by her father after selling the land in dispute or any investment was made out of the sale price alleged to have been received by her father and the attorneys, that there is no cogent evidence on record to prove that the plaintiff or her father was consulted at the time of entering into transaction which is the subject-matter of Mutation No,80 and was sanctioned in the year, 1974 or that they were not available for consultation, and that there is no documentary evidence to prove that the sale amount received by the alleged attorneys or her father, who had allegedly entered into transaction of sale of land belonging to respondent No,1, was passed on to respondent No,1 at any time after the sale. No other point has been urged by the learned counsel. In support of his contentions, learned counsel has placed reliance on the provisions of section 362 of Mulla's Mohamedan Law and case of Rahimuddin and others: Abdul Malik Blitiyia and others (PLD 1968 Dacca 801), wherein it has been held that a father being the natural guardian of the minor is entitled to sell his/her property under exceptional given
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circumstances situations, which are given in section 362 of Mahomedan Law, reproduced as under:- "362. Alienation of immovable property by legal guardian.-A legal guardian of the property of a minor has no power to sell the immovable property of the minor except in the following cases, namely; (1) where he can obtain double its value; (2) where the minor has no other property and the sale is necessary for his maintenance; (3) where there are debts of the deceased, and no other means of paying them; (4) where there are legacies to be paid, and no other means of paying them, (5) where the expenses exceed the income of the property; (6) where the property is falling into decay; (7) when the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution." 12. As against the above arguments, learned counsel for respondent No,1 has vehemently contended that except the mutations, correctness and legality whereof has been challenged in the suits, no other independent evidence of transaction of sales has been led by the defendants, who had heavy onus upon them to prove positively that they have validly purchased the land in question. Neither there is any receipt for payment of consideration, nor the alleged deeds of power of attorneys have been brought on record, nor can it be said that the land in question was sold for the benefit of the plaintiff, who was admittedly minor, therefore, both the mutations having been got sanctioned illegally and without a lawful authority, no title can be said to have been conferred upon the vendee-defendants and, as such, the findings rendered by the learned trial Court on all the issues are unexceptionable and are liable to be upheld. He further contended that the suits are within time as date of birth of the respondent is established to be 13-12-1957. 13. We have considered the arguments addressed at the bar and have perused the record including the oral as well as documentary evidence produced by the parties. 14. As per Matriculation Certificate Exh.P.W.2/1, birth entry Exh.P.W.2/11 and positive statement of Begum Zainab Tiwana P.W.1, real mother of the respondent No,1, date of birth of respondent No,1 is proved to be 13-12-1957. Calculated her age with effect from that date, the plaintiff shall be minor at the time of sanctioning of Mutation No,46 on 19-6-1970, on the date of execution of alleged deed of power of attorney on 27-1-1971 and also on the date when Mutation No,80 was sanctioned on 12- 12-1974. The birth entry as contained in the Matriculation Certificate has not been proved to be false by any cogent evidence. Merely because on certain documents the respondent No,1 has not shown as a minor or that she has acted on behalf of her minor sisters will not positively prove that she was major on these particular dates, on which the said documents were executed. The factum of her minority also stands established from the statement of P.W.1, who is her mother and whose is the best evidence as regards the date of birth of the plaintiff-respondent. She has specifically deposed that the plaintiff was born on 13-12-1957 and that she was married to Malik Khizar Hayat Khan Tiwana on 11-11-1956 vide Nikahnama Exh.P.W.1/A. Therefore, we hold that respondent No,1 was minor at the time of entering into the impugned mutations and sanctioning of the questioned mutations. 15. There is no cavil with the proposition that any contract or transaction entered into with a minor is void ab initio as a minor cannot give consent to create a binding contract; principle of estoppel is also inapplicable in his/her . Case. Therefore, as regards the transaction reflected in Mutation No,80 sanctioned on 12-12-1974, it stands established that the same is void ab initio as the same is unauthorised and as such on the basis thereof the vendee-defendants named in the said mutation do not acquire any right or title in the suit land. As regards the mutation of Sale No,46 entered and sanctioned in the year 1970 on the basis of the statement of Sh. Zahoor Ahmad and Malik Shahbaz Khan, who claim themselves to be the general attorneys of the father of the plaintiff, neither the deed of general power of attorney nor the Report Roznamcha No,337 on the basis whereof the said mutation has been entered, has been produced in evidence. The attesting
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witness and the officers, who had sanctioned the mutations have also not been produced in evidence. There is absolutely no independent evidence of the transactions worth consideration of the basis whereof the mutations in question had been entered into and sanctioned. The mutation entries being subject-matter of the suits, cannot be substitute for evidence to the effect the land was actually sold as reflected in the mutations. Merely because in the order recorded by the Assistant Collector II presence of the respondent's father is mentioned or his signatures appear on the mutation sheet of Mutation No,46, will not prove that he had sold the suit land and also in the interest and for the welfare of the respondent No,1. Although the natural guardian is competent to alienate the minor's property to meet his/her needs as provided by section 362 of Mulla's Mahomedan Law, yet, nothing has been brought on the record of this case to prove that the transaction in question had been made for the welfare of the minor and can be protected under any of the contingencies enumerated in the said section. It does not appeal to reason as to why a very rich person who had earlier been gifting lands in the name of the minor, should sell her property in favour of persons who have been selling their own lands. The ratio of case of Rahimuddin (supra), therefore, being distinguishable on facts will not be of any help to the appellants. Therefore, we hold that it is not established on record that the impugned sales have been made for benefit or welfare of respondent No,1. 16. In order to prove the genuineness of an oral transaction reflected through a mutation of sale, particularly when…
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