' JAWWAD. S. KHAWAJA, J.---Raja Shaukat Ali, petitioner/plaintiff impugns the concurrent decrees of the learned trial Court dated 14-1-1998 and of the learned Appellate Court dated 12-12-2000, whereby a declaratory suit filed by him has been dismissed.
2. Muhammad Hussain, father of the petitioner, Shaukat Ali, was owner of 249 Kanals and 5 Marlas in Mauza Chuaa (in Tehsil Saiai Alamgir) and 520 Kanals and 10 Marlas in Chak No,15, Gharbi, Tehsil, Bhalwal. Muhammad Hussain purportedly made a Will dated 12-6-1965, whereby he gifted 1/3rd of the aforesaid land jointly in favour of his brother Muhammad Alam and sister Mst. Bevi Begum. At the time when he made the alleged Will, the petitioner Shaukat Ali, had not been born. The date of the petitioner's birth is 26-3-1966. Muhammad Hussain died on 10-11-1966.
3. Based on the aforesaid Will, the land in Mauza Chuaa was mutated in favour of Muhammad Alam and Mst. Bevi Begum vide Mutation No,1492 (Exh.P.7) sanctioned on 25-12-1966. The land in Chak No,15, Gharbi was also mutated in favour of the aforesaid legatees vide Mutation No,414 (Exh.P.8) sanctioned on 17-1-1967.
4. The petitioner's mother Mst. Rashid Begum and the petitioner, who at the time was a minor, through his grandfather (nana) as next friend, filed a suit to challenge the aforesaid Will and the two mutations (Exhs.P.7 and P.8). This suit was compromised on 15-11-1971 when due permission under Order XXXII, rule 7, C.P.C. Was granted to the petitioner's grandfather in respect of the compromise. As per terms of the compromise, the entire land in Mauza Chuaa was to go to the petitioner. As for the land in Chak No,15, Gharbi, the legatees agreed that 24 Kanals would go to the petitioner. The suit was decreed on 15-11-1971 in terms of the decree (Exh.D.11).
5. Thereafter, Muhammad Alam sold 86 Kanals and 15 Marlas in Chak No,15, Gharibi to Muhammad Nawaz and Muhammad Ashraf (predecessors-in-interest of respondents Nos.9 to 14) vide Mutation No,467 sanctioned on 5-11-1974. The main contest in this petition relates to this area of 86 Kanals and 15 Marlas which the respondents Nos.9 to 14 claim as successors of their respective fathers who were bona fide purchasers thereof. Both Courts below have concurrently held that Muhammad Nawaz and Muhammad Ashraf were, indeed, bona fide purchasers of 86 Kanals and 15 Marlas for valuable consideration.
6. Learned counsel for the petitioner argued that the petitioner was a minor and, -therefore, the compromise recorded in the earlier litigation while he was still a minor, was not binding on him.
This submission is not entirely correct. It may be noted that Order XXXII, rule 7, C.P.C. Specifically permits a compromise to be made on behalf of minor by a next friend or guardian if the Court so permits. Respondents Nos.9 to 14, therefore, were only to look at the Court proceedings and the compromise in the present case to conclude that. Muhammad Alam had title in the land purchased by their predecessors-in-interest. There is, however, an additional circumstance in the present case. The petitioner had filed a pre-emption suit in respect of a part of the suit-land which had been sold in favour of his grandfather (nana). He appeared as P.W.4. It was noted by the learned trial Court that he had attained the age of majority and had filed an application to record his statement. His testimony shows that he had accepted the compromise in question.
7. There is an aspect of the case which needs to be commented upon. Learned counsel for the petitioner argued that only 1/3rd of the total area in Chak No,15, Gharbi had been bequeathed to Muhammad Alam and Mst. Bevi Begum. This 1/3rd is equivalent to 176 Kanals out of the total area of 520 Kanals and 10 Marlas. Learned counsel for the petitioner has argued that since 24 Kanals out of the bequeathed area was agreed to be given to the petitioner as a result of the compromise, the respondents Nos.9 to 14 could not have acquired title in the entire disputed area measuring 86 Kanals and 15 Marlas. This argument was advanced on the basis that a proper inquiry made by the said respondents would have disclosed to them that even though the Will had been accepted by the parties to the earlier litigation, this was subject to the condition that from the bequest 24 Kanals would be ceded by the legatees to the petitioner Shaukat Ali.
' Learned counsel for the petitioner argued that in these circumstances, the respondents Nos.9 to 14 could only be treated as bona fide purchasers of 62 Kanals and 15 Marlas i.e, the land which remained with Muhammad Alam after deducting the 24 Kanals ceded through the compromise.
The record shows that the compromise was effected between the parties to the earlier litigation which included both Muhammad Alam and Mst. Bevi Begum as defendants. The area of 24 Kanals was to be reduced from the bequest relating to Chak No,15 Gharbi. In the circumstances, 12 Kanals each would be reduced from the share of 86 Kanals and 15 Marlas received by the two legatees pursuant to the Will.
8. In the foregoing circumstances, I find that the respondents Nos.9 to 14, were bona fide purchasers but only to the extent of 74 Kanals and 15 Marlas and not in respect of the entire 86 Kanals and 15 Marlas purchased by their predecessors from Muhammad Alam, through Mutation No,467. The decrees of the learned Courts below, are, therefore, modified accordingly.
9. As to the remaining portion of the suit-land, it is to be noted that neither the original will was produced in Court nor were the marginal witnesses thereof examined by the remaining respondents, namely, the L.Rs, of Muhammad Alam and Mst. Bevi Begum. Furthermore, even the copy of the Will, which was produced, shows that the petitioner's father had made the same on the basis that he had no children. Before his death, the petitioner was born and this circumstance itself militated against the enforceability of the Will. Moreover, no probate of the Will was obtained by Muhammad Alam and Mst. Bevi Begum and, therefore, the Will was not sufficient by itself to justify the mutations (Exhs.P.7 and P.8). Learned counsel for respondents Nos.4 to 7 (legal representatives of Mst. Bevi Begum) was unable to controvert this legal position. As to the other legatee namely Muhammad Aslam, he has died and his legal representatives, who were brought on record, have already been proceeded against ex parte.
10. In the foregoing circumstances, the suit of the petitioner/plaintiff as against the respondents/defendants (other than respondents Nos.9 to 14), is decreed. This decree, however, shall not effect any rights acquired by bona fide parties prior to the date thereof.