' FAQIR MUHAMMAD KHOKHAR, J.---The petitioner Late Muhammad Hand (now represented by his legal heirs) instituted, on 26-7-1980, a suit for declaration in that by virtue of sale Mutation No,63 attested on 12-6-1967, he was owner of agricultural land measuring 72 kanals situated in Chak No,52/4-R Tehsil Haroon Abad District Bahawalnagar. He further prayed therein that the judgment and decree, dated 27-7-1973, passed by the Senior Civil Judge Bhawalnagar, followed by Mutation No,197, dated 19-3-1979, registered sale-deeds, dated 28-6-1979 and 12-3-1980 by Mst. Ghulam Fatima, the respondent No,7, in favour of respondents Nos. 1 to 5 coupled with Mutations Nos.202 to 205 attested on 15-11-1997 and Mutation No,209 attested on 2-4-1980, be declared illegal, ex parte, collusive, void and inoperative qua his rights. By way of consequential relief, the possession of the suit-land was sought for. It was averred in the plaint that Mst. Ghulam Fatima, the respondent No,7 was the original owner of the suit-land, who alienated the same by way of exchange in favour of her mother Mst. Rabia, the respondent No,6, through Mutation No,62, dated 30-5-1967. Mst. Rabia, the respondent No,6, purportedly sold out the suit-land in favour of plaintiff/petitioner through Mutation No,63 attested on 26-7-1967. Then the respondent No,7 obtained ex parte decree on 27-4- 1973, from the Senior Civil Judge, Bahawalnagar, whereby the exchange Mutation No,62, dated 30- 5-1967 was set aside. Subsequently, Mutation No,63 was also cancelled by the Assistant Commissioner/Collector Haroon Abad, vide order, dated 14-1-1974, on of violation of provisions of Land Reforms Regulations, 1959 (M.L.R. No,64 of 1959). The petitioner agitated the matter before the Member (Revenue), Board of Revenue, Punjab, Camp at Bahawalpur, who vide order, dated 11-3- 1980, held that there was no violation of M.L.R. No,64 of 1959 as Mst. Rabia, had acquired some other land by way of inheritance after the sale of the suit-land.
2. On the other hand, respondents Nos. 1 to 5 also filed a civil suit for declaration of their title over the suit-land on the basis of registered sale deeds, dated 28-6-1979 and 12-3-1980, followed by Mutations Nos.202 to 205 and 209. They also called in question the validity of order dated 11-3-1980 passed by the Member (Revenue) Board of Revenue in favour of the petitioner.
3. Both the suits were consolidated. The respondent No,7 Mst. Ghulam Fatima in her written statement to the suit of the petitioner took the position in that she was a minor girl of tender age at the time of attestation of exchange Mutation No,62, dated 30-5-1967 and that her mother Mst. Rabi, the respondent No,62, having not been appointed guardian of her property, by any Court, was not competent to alienate the suit-land by way of exchange or otherwise. The Senior Civil Judge, Bhawalnagar framed as many as 28 issues and subsequently added issues Nos.6-A, 6-B and 6-C on the divergent pleadings of the parties. The trial Court, vide judgment and decree, dated 11-2- 1989, dismissed the suit of the petitioner and decreed the one filed by the respondents Nos. 1 to 5.
However, the appeal of the petitioner was allowed and his suit was decreed by the District Judge, Bahawalnagar, vide judgment dated 20-4-1989. Therefore, the respondents Nos.1 to 5 preferred Civil Revision No,187-D of 1989, which was accepted by a learned Single Judge of the Lahore High Court, Bahawalpur Bench, vide impugned judgment, dated 5-7-2001 and the suit of the petitioner was dismissed.
4. The learned counsel for the legal heirs of late Muhammad Hanif petitioner vehementally argued that Mst. Rabia, the respondent No,6 being de facto guardian had herself got alienated the suit- land of her daughter Mst. Ghulam Fatima, the respondent No,7, in her favour by way of exchange which the respondent No,6 further sold to the petitioner on receipt of the consideration. Therefore, the respondent No,7 could not be allowed to take a somersault on the plea of minority particularly in order to repudiate the sale of the suit-land to the petitioner. The principle of approbation and reprobation was attracted against the respondents Nos. 6 and 7. It was further argued that the invalidity of transaction of exchange would not ipso facto nullify the transaction of sale of the land duly made by its owner the respondent No,6. Since the suit-land had already been sold to the petitioner by virtue of sale Mutation No,63, therefore, the same could not be sold out by the respondent No,7 to the respondents Nos. 1 to 5. The Member (Revenue), Board of Revenue, by order, dated 11-3-1980, had also upheld the sale Mutation No,63 in favour of the petitioner. Therefore, the same could not be ignored by the Civil Courts. It was lastly contended that Mst. Rabia was the ostensible owner of the suit-land. Therefore, the transaction of sale of the suit-land by her to the petitioner could not be set aside on the ground that she was not authorized to sell the suit-land.
The sale was protected by section 41 of the Transfer of Property Act, 1882.
5. On the other hand, the learned counsel for the respondents supported the impugned judgment of the High Court as well as that of the trial Court and prayed for dismissal of this petition.
6. We have heard the learned counsel for the parties and have also perused the available record with their able assistance. The bare perusal A of exchange Mutation No,62, dated 30-5-1967 passed by the Assistant Collector would make it manifestly clear that Mst. Ghulam Fatima, the respondent No,7, was a minor at that time and that her mother Mst. Rabia, the respondent No,6, got transferred in her favour the suit-land of her minor daughter, by way of exchange. There is nothing on record to show that Mst. Rabia was ever appointed by, any competent Court to be the guardian of the property of her minor daughter Mst. Ghulam Fatima. The respondent No,6, albeit mother of respondent No,7, was not the natural guardian to deal with the property of her minor daughter, the respondent No,7, under the Mohammadan law. At the most, she was the de facto guardian of the property of her daughter. Therefore, the exchange Mutation ,No,62 showing exchange of suit-land between the mother and her minor daughter was illegal.
7. In the principles of. Mahomedan Law by D.F. Mulla, (Pakistan Edition) (1995), it is stated that in section 359 the following persons are entitled in the order mentioned below to be the guardians of the property of a minor:---
(1) The father;
(2) The executor appointed by the father's will;
(3) The father's father;
(4) The executor appointed by the will of the father's father.
' In section 360, it is provided that in default of the legal guardians appointed in section 359, the duty of appointing a guardian for the protection and preservation of the minor's property falls on.
The Judge as representing the State. As regards a de facto guardian, it is laid down in section 361 a person may neither be a legal guardian (section 359) nor a guardian appointed by the Court (section 360) but may have voluntarily placed himself incharge of the person and property of a minor. Such a person is called de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor. Section 364 leaves no doubt that a de facto guardian (section 361) has no power to transfer any right or interest in the immovable property of the minor.
8. The legal position of alienation of immovable property of a minor by his/her mother, brother, uncle and other close relatives as de facto guardians of the minors, has been examined by superior Courts in a number of cases.
' In the case of Ahmed Khan and others v. Rasool Bakhsh and others (PLD 1975 SC 311), a sale-deed was executed by a widow mother alienating property of her minor son purporting to be his de facto guardian in order to pay off certain outstanding debts of her deceased husband. It was held that such a sale was not merely voidable but void under the Muslim Law and that a de facto guardian of a minor had no power to transfer any immovable property of the minor. In Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690), this Court took the view that it was only a guardian which could enter into a contract on behalf of a minor. Under Mohammadan Law, the guardians of the property of a minor were the father and grand-father or their executors or persons appointed as guardians by their will. Since the uncle of the minor was no nowhere found in the list of guardians, therefore, he was not competent to enter into an agreement on behalf of the minor for alienation of property. In the case of Imambandi and others v. Haji Mutsaddi and others (AIR 1918 P.C. 11 = 45 Indian Appeals 73 = 918 (47 Indian Cases 513), the following observations were made by the late Right Hon'ble Syed Amir "Under the Mahomedan Law the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian; the father alone, or, if he be dead, his executor (under the Sunni Law), is the legal guardian. If the father dies without appointing an executor (Wasi) and his father is alive the guardianship of his minor children devolves on their grandfather. Should he also be dead, and have left an executor, it vests in him. In default of these de jure guardians the duty of appointing a guardian for the protection and preservation of the infant's property devolves on the Judge as the representative of the sovereign. When the mother is the father's executrix or is appointed by the Judge as guardian of the minors, she has all the powers of a de jure guardian."
' In Muhammad Ejaz Hussain and another v. Muhammad Iftikhar Hussain and others (AIR 1932 PC 76), it was held that the mother as a de facto guardian could not enter into reference to make award binding upon the share of minors nor could she enter into family arrangement on their behalf. It was further held that the subsequent appointment of the mother as a guardian would not validate the arbitration agreement. To the same effect are the cases of Mst. Abdara v. Salim Khan and others (PLD 1992 Peshawar 98), Mst. Subhan Bibi and another v. Mst. Musarrat Jabeen and others (PLD 1969 Karachi 563), Musali Khan v. Nazir Ahmed and others (PLD 1952 Peshawar 1), Ziarat Gul v. Mian Khan (PLD 1950 Peshawar 69), Zinda and others v. Mst. Roshna and another (AIR 1928 Lahore 250) and Rang Ilahi and another v. Mahboob Ilahi (AIR 1926 Lahore 170).
9. A somewhat similar view has been taken by the Indian Supreme Court and High Courts in Methiyan Siddqu v. Muhammad Kanju (AIR 1996 SC 1003), Mahboob Sahab v. Ismail (AIR 1995 SC 1205), Mt. Anto v. Mt. Reoti Kuar and others (AIR 1936 Allahabad 337), Muhammad Moizuddin Mia and others v. Nalini Bala Devi (AIR 1937 Calcutta 284), Bhikaji Ramchandra Shimpi v. Ajagarally Sarafally Bohori and others (AIR 1946 Bombay 57), Sk. Md. Zafir v. Sk Amiruddin and others (AIR 1963 Patna 108) and Ali Muhammad v. Rammniwas and another (AIR 1967 Rajasthan 258).
10. We, therefore, hold that the exchange mutation of the suit-land of the respondent No,7, by respondent No,6 in her own favour, acting in her capacity as a de facto guardian being mother of the respondent No,7 was invalid. Therefore, the petitioner being transferee of the suit-land would not acquire or claim any title of the suit-land. It seems to us that the petitioner late Muhammad Hanif belonged to the same village where the suit-land was situated. He could not be said to be ignorant of the factual and legal position of the exchange Mutation No,62 which itself clearly showed that the respondent No,7 was a minor girl and respondent No,6 to be her de facto guardian. The petitioner purchased the suit-land from respondent No,6 within a few days thereafter through Mutation No,63.
11. In the circumstances, the petitioner could not be said to have taken any reasonable care or having acted in good faith to find out whether or not the respondent No,6 had, the power to make the transfer of the suit land on the strength of exchange Mutation No,62, dated 30-5-1967. In our view, the petitioner was not entitled to take the protection of section 41 of the Transfer of Property Act. The impugned judgment of the High Court is plainly correct to which no exception can be taken.
12. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly.