MIAN SAQIB NISAR, J.--- The petitioners, who are the father, son and daughter, on 4.2.1992 brought a suit for the declaration, challenging the gift mutation No. 115, dated 30.4.1966, allegedly got executed by them in favour of Muhammad Hussain respondent No. 1/- donee. It is their claim in the suit that such gift is the result of fraud and misrepresentation; besides that Saif-ur-Rehman and Mst. Zainab Bibi petitioners Nos. 2 and 3, at the relevant point of time, were minors and Sultan, their father, had no lawful authority on their behalf to make the gift, resultantly, the gift to their extent is void. The respondents contested the matter, parties were put to trial and the learned Civil Judge, while holding that a valid gift was made by the plaintiffs/petitioners in favour of respondent No. 1, disallowed the suit. Furthermore, that the petitioners are challenging the mutation of gift dated 30.4.1966 on 4.2.1992 and, therefore, the suit on that account is barred by time.
In this behalf, the findings of the learned Trial Court are that:- "The present plaintiffs remained silent for a long time till 1992 and have failed to explain the reasons for filing the suit with such inordinate delay through oral or documentary evidence. It means that the suit is patently barred by time. Regarding other contention raised by the plaintiffs that plaintiffs Nos. 2 and 3 were minors at the time of attestation of impugned mutation has no force as they had not challenged the impugned gift mutation after attaining the age of majority as alleged in the plaint. Under these circumstances, I have come to the conclusion that time limitation in this suit had to run from 1966 for the plaintiffs, therefore, suit is badly time-barred."
On issue No. 3 i.e. About the minority of the petitioners Nos. 2 and 3, no clear cut finding has been given by the learned Trial Court, but the issue has been decided against the petitioners and thus, the suit, as stated earlier, was dismissed vide judgment and decree dated 25.1.1996.
2. Aggrieved of the above, the petitioners preferred an appeal, which has been rejected by the learned Court by holding that:--- "All these facts are to show that even the plaintiffs Nos. 2 and 3 after attaining the majority remanded silent and acquiescent of the transaction effected by their father on their behalf."
On issue No. 6, it is held that:--- "If at all the entries regarding the date of birth of the appellants Nos. 2 and 3 in Ex. P. 1 and Ex. P. 2 be deemed correct even then the suit of the appellant is badly time-barred as the suit has been instituted after 15 years of attaining the age of majority by Saif-urRehman whereas after 11 years of attaining majority by Mst. Zainab Bibi."
It is further observed that the said petitioners have failed to show if the respondents had ever given them share of produce so as to keep the period of limitation alive. Resultantly, the appeal has been dismissed.
3. Learned counsel for the petitioners contends that according to the statement of Sultan, the father of petitioners Nos. 2 and 3 and also Ex. P. 1 and Ex. P. 2, which are the identity cards of the petitioners Nos. 2 and 3, it is proved that at the time when the mutation dated 30.4.1966 was attested in favour of the respbndent, they were minor. As against this, no evidence at all has been adduced by the respondents; even a single word had not been uttered by the respondent side if they were major at the time when the mutation was sanctioned.
4. I have heard the learned counsel for the parties and find, that on account of the statements of Sultan PW-1 and Muhammad Bilal PW-2, who in their examinations-inchief have deposed that at the time of the disputed mutation, petitioners Nos. 2 and 3 were minors, which statements were not subjected to the cross-examination and also on the basis of Ex. P. 1 and Ex. P.. 2, the identity cards of the said petitioners, they were able to discharge their initial onus about the minority. As against the above, no documentary evidence was led by the respondents and their oral statements in this behalf are self-contradictory. Thus, on the basis of such evidence, which has not been considered by the two Courts below, I am of the view that petitioners Nos. 2 and 3 were able to prove that they were minor at the time of gift mutation No. 115, dated 30.4.1966. It is settled law that any transaction/alienation of an immovable property on behalf of the minor, is void, even if it is made by legal and natural guardian, except where the disposition of such property is for the need of the minor. This is not the position in the present case, rather the property of the minors has been gifted by the father, which they had acquired on account of inheritance of their mother, who died and the inheritance mutation No. 73 was attested in their favour on 26.11.1964. Resultantly, the mutation in question is absolutely void and ineffective against the rights of petitioners Nos. 2 and 3.
5. Now the question remains, whether the mutation of gift when not challenged by petitioners Nos.
2 and 3 within three years attaining the age of majority, can the suit be dismissed as being out of limitation. The answer has been provided by the judgment reported as Riaz Ahmad and 2 others vs. Additional District Judge and 2 others (1999 SCM R 1328), in which, it has been clearly held:--- "The mutation was attested on the basis of a gift, validity of which was challenged on the ground that a gift obtained from a minor is void and unlawful in the eve of law and no rights came to vest in the petitioners on the basis of the alleged gift or the mutation got attested on the basis of said transaction. Such transaction made by a minor cannot be rectified after attaining majority in view of the law laid down by this Court in the Chairman, District Screening Committee, Lahore and another vs. Sharif Ahmad Hashmi (PLD 1976 SC 258). Moreover, respondent No. 3/plaintiff is in possession of other property in the Khata as co-sharer and, therefore, being a co-sharer in the Khata no limitation would run against her, specially when the case of the plaintiff/respondent No. 3 in that the cause of action accrued to her at the time of denial of title which occurred one week before filing of the suit. It is well-settled that wrong mutation confers no right in the property as Revenue Record is maintained only for the purpose of ensuring realization of land revenue and a co-sharer can file a suit for declaration due to denial of rights by the co-sharer and the limitation would start in such cases on the denial of title."
6. In the present case, the petitioner, in their plaint, have very clearly averred that the respondents had been paying them the share of the produce of the land and cause of action had accrued a week before the instituton of the suit, when the respondents had denied their title tc he property.
Even otherwise, on account of the declaration that the gift mutation is void, they shall become the co-sharer alongwith the respondents in the same Khata and thus as a co-sharer, their remedy to seek the declaration was not hit by any provisions of the Limitation Act.
7. The argument of the learned counsel for the respondents, that because of the consolidation, the Khata was divided and according to Ex. P. 6, the land in question had exclusively become the ownership of the respondents and, therefore, even if the gift mutation was initially void, petitioners Nos. 2 and 3 cannot be considered to be in joint possession of the property as the Khata was separated in 1982 and the limitation period shall commence from that date. I am afraid that in the consolidation, it is only the settlement of the lands, which is made in pursuance of the consolidation laws, but the rights of ownership are not extinguished. If for any reason, on the basis of a void mutation, in the consolidation process, the Khata of the respondents had been made separate, but such separate Khata is based upon the structure of the mutation, which is nullity in the eyes law. Therefore, when the foundation of a super-structure is removed. Resultantly, on the above plea, the findings of the two Courts about limitation cannot be upheld.
8. As regards the argument of the learned counsel for the petitioners that the gift mutation vis-a- vis Sultan is voidable for the reasons that he was an illiterate person and the mutation has been got sanctioned in a fraudulent manner. Suffice it to say, that such particulars of fraud have not been established on the record and against Sultan at least the mutation, which effected in the year 1966, cannot but the challenge brought on 4.2.1992, cannot be declared to be voidable and his case obviously shall be hit by the Limitation Act.
In the light of above, by partly allowing this petition, the judgments and decrees of the two Courts below are set aside, t he suit of petitioners Nos. 2 and 3 to the extent of their share in the gifted land, is decreed, whereas to the extent of share of Sultan petitioner No. 1, it is dismissed and the impugned mutation is maintained. Accordingly, the revision petition is partly allowed and partly dismissed.
Revision .