' On 5-9-1992 the respondent filed a suit against the petitioneRs. In the plaint it was stated that the petitioners 5 to 7 were the owners of the 10 Marlas plot described in para. 1 of the plaint; that the said petitioners are minors and their guardian and father namely Barkat Shah decided to give up residence in Jhang and went away to Toba Tek Singh.
' Since it was not possible to look after the said plot, in the interest of the said minors he entered into an agreement for the sale of the plot in favour of the respondent on 22-7-1989. The consideration was settled at Rs.10,000 and a sum of Rs.3.000 was paid on 22-7-1989 as earnest. The balance was to be paid upon the registration of the sale, which was to be executed after the decision of a civil suit pending in a Court; that the said Barkat Shah would obtain an order of his appointment as the guardian and thereafter to transfer the plot to the respondent. It was further stated that after the said agreement the said Barkat Shah did file an application before the Guardian Judge, Jhang, the expenses whereof were borne by the respondent. The application was allowed and a certificate was issued which was delivered to the respondent. During the pendency of the said application on the demand of Barkat Shah, another sum of Rs.3,000 was paid vide agreement dated 24-1-1990. Barkat Shah then filed an application for permission to alienate the land, which was allowed on 28-1-1992. However, thereafter Barkat Shah did not perform the said agreement rather proceeded to sell the plot to petitioners 1 to 3 vide a Mutation No,1266 attested on 12-7-1992. This sale was stated to be illegal. With these averments a decree for specific performance was sought. On behalf of minor petitioners 5 to 7 their certified guardian Barkat Shah filed a written statement. It was objected that the suit is barred by time and that agreement with respondent is violative of section 29 of the Guardians and Wards Act, 1890. It was further stated that by their act in selling the land to the other respondents the. Minors have avoided the said agreement. Now in reply to para 4 wherein the respondent had mentioned the factum of the said agreement dated 22-7-1989 it was replied that the para. Is correct but the agreement is ({{URDU TEXT}}). Other allegations in the plaint were denied. The petitioners 5 to 7 in their written statement took the plea that agreement dated 22-7-1989 is a collusive anti-dated document. They asserted that they had obtained the guardianship certificate and bore the expenses for the same. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit vide a judgment and decree dated 24-10-1993. The petitioners 1 to 3 on the one hand and the petitioners 5 to 7 on the other filed 2 first appeals against the said B judgment and decree which were heard together by a learned Additional District Judge, Jhang who dismissed the same on 1-6-1995.
2. Mr. Zainul Abidin Advocate, learned counsel for the petitioners argues that evidence on record has been misread vis-a-vis the execution of the agreements dated 22-7-1989 and 24-1-1990.
According to the learned counsel the agreements were violative of section 29 of Guardians and Wards Act, 1890 and could not have been enforced. Mr. Tafazul H. Rizvi, learned counsel for the respondent, on the other hand, with reference to the terms of the said agreements argues that these were valid agreements and not hit by section 29 of the said Act. With reference to the evidence on record asserts that the case as set up in the plaint by the respondent stood proved. He relies on the case of Khalid Javed Abbasi v. Sharafat Ali Abbasi and 4 others 1984 CLC 1803 and Messrs Vaseem Construction Co. v. Province of Sindh through Secretary to Government of Sindh, Communication and Works Department, Karachi and 4 others 1991 CLC 640.
3. I have gone through the copies of the records appended with this civil revision, with the assistance of the learned counsel for the parties. I have already referred to the respective pleadings of the parties above. So far as the agreements pleaded by the respondent in his plaint are concerned, there is no specific denial to be found in any of the written statements. So far as the petitioners 5 to 7 are concerned, they had objected to the validity of the agreement and further to, have avoided the same. The remaining petitioners i,e, vendees, on the other hand, proceeded to term the agreement as collusive and anti-dated. Be that as it may, both the learned Courts below have recorded positive finding that the said agreements were executed by Barkat Shah and the finding is supported by the evidence of the scribe and the marginal witnesses of the said documents. Learned counsel for the petitioners has not been able to point out any misreading or non-reading of the evidence so far as the factum of execution of the agreement and the receipt of money by Barkat is concerned.
' Now it is true that section 29 of the said Guardians and Wards Act does place an embargo upon the certified guardian in the matter of alienation of the property of the minors except with the prior permission of the. Guardian Court. However, in the case in hand it was an agreement that was executed by the father of the minors claiming to be the natural guardian and at the same time stating that he will get himself appointed as a guardian and transfer the land. Now Exh.P.5 is the guardianship certificate appointing Barkat Shah as the guardian of the person and property of the minoRs. It will be noted that this document in original was produced by the respondent in evidence.
Exh,P.10 is the application filed by Barkat Shah to seek permission of the Court to alienate the property. This application narrates that the said 10 Marlas plot of the value of Rs.10,000 is to be sold for the reason that they had given up their residence at the said place and it is not possible for him to look after the plot which may be occupied by someone. This application was filed on 12-9-1991 and was allowed on 28-1-1992 vide order' xh.P.11. The learned Judge with reference to the evidence on record, including the statement of Muhammad Riaz son of Muhammad Ramzan, who, according to the learned counsel for the petitioners is the petitioner No,1, found that the facts narrated in the said application, including its value at Rs.10,000 stated in the application, stand proved and permitted the Alienation. I find that the, judgment of the learned High Court of Sindh at Karachi in the said case of "Khalid Javed Abbasi" fully supports the contention of the learned counsel for the respondent. Nothing illegal is therefote, to be found with the said agreement. I have already stated above that it was reported to the learned Judge that the plot is of the value of Rs.10,000 and this is the amount, which was agreed to be paid and partly paid to said guardian of the minoRs. It is also on record that litigation was on going regarding plot which had in fact been occupied by the said vendee, petitioneRs. Thus, there is nothing on record to suggest that the interest of minors in any manner was prejudiced. So far as the said vendees are concerned they had purchased the land by means of a mutation Exh.P.7. No evidence, has been led regarding the actual payment of the said amount of Rs.25,000. The admission of Barkat Shah, 'D.W.1; would not be of much help when he reported to the Court that the plot is valued at Rs.10,000 and it is their own case that Riaz who appeared as D.W.2 in this case, entered the witness-box to support the said contention of. Barkat Shah. It is a matter of record that the original certificate was produced by the respondent, It was stated by Barkat Shah that since the respondent was conducting the cases pertaining to the said plot he get hold of the certificates. This has been denied by the respondent in the witness-box.
However, the fact remains that the safe was on the strength of the said certificate and it is but obvious that the said vendees, petitioners did not even care to call upon Barkat Shah to produce the said certificate. The learned Courts below therefore, have not committed any jurisdictional error in disbelieving the bona fides of the said subsequent transaction.
5. For all that has been discussed above this civil revision is found to be without any force and is dismissed with Costs.