Maulvi Anwar-ul-Haq, J.--,According to the contents of this writ petition, Petitioner No, 1 was transferred a plot of land in Garden Town, Lahore, as described in para 1 of the writ petition vide Transfer Order dated 24.6.1976 (Annexure A). He exchanged the said plot with land measuring 1466 kanals 14 marlas described in para 2 of the writ petition vide registered exchange deed dated 8.11.1976. The land was mutated in his favour vide Mutation No, 47 dated 14.6.1976. Thereafter he gifted away land measuring 1452 kanals 14 marlas in favour of Petitioners No, 2, 3, 4 & 5 (his wife and sons) vide registered Gilt Deed dated 17.11.1976. This first deed was implemented in the revenue record vide Mutation No, 48 attested on 14.9.1977. The grievance being made out is that Respondent No, 1 has proceeded to cancel the land from the names of the original owners i,e, Mst. Ruqyya Ehsanullah Tiwana and Miss Shahneela Ehsanullah Tiwana vide order dated 26.10.1977. Prayer is being made for setting aside of the said order. This writ petition was heard along with W.P. No, 3427/77 filed by the said ladies. Both the writ petitions were dismissed on 23.5.1983. Against the said judgment, Civil Appeals No, 1216 and 1217 of 1990 were filed respectively by the Commissioner Lahore, Division Lahore, on behalf of the said ladies being Court of Wards and by the petitioners.
These appeals were allowed by the Honourable Supreme Court of Pakistan vide judgment dated 20.1.1993 and the matter was remanded back to this Court for a fresh decision. After remand, a development took place. Respondent No, 3 i,e, Miss Shahneela Ehsanullah Tiwana filed an application (CM No, 906 of 2002) for being impleaded as a party to this writ petition. This application was allowed vide order dated 2.4.2007 and she was impleaded as Respondent No, 3.
She has filed a written statement. According to her, the said exchange deed is fictitious. She was a minor at the time of the said exchange and her property had been taken over by the Court of Wards vide notification dated 21.10.1967 and Mst. Ruqyyia Ehsanullah Tiwana could not have transferred her land to Petitioner No,
1. According to her, the plot stated to have been given in exchange, was owned by her father, who had died and thus both the properties subject-matter of the exchange belong to her. Petitioner No, 1 is stated to be a servant of the said Mst. Ruqyyia Ehsanullah Tiwana. It has been pointed but that in the year 1981, Mst. Raqyyia Ehsanullah Tiwana as attorney of Petitioner No, 1 sold the Garden Town plot through various sale-deeds to different persons. There is an allegation that the said Ruqyya and Petitioner No, 1 were suspected of administering poison to late Ehsanullah Tiwana.
2. Learned counsel for the petitioners contends that the impugned order has been passed by Respondent No, 1 in proceedings to which the petitioners were not parties, whereas Petitioner No, 1 acquired the land and made further gift before the said date i,e, 26.10.1977. Regarding the contents of the written statement of Respondent No, 3, he says that transaction on her behalf is voidable and relies on the case of Buland Khan and 6 others Vs. Muhammad Rafiq and 6 others (PLD 1979 Lahore 237) and that since she had not filed a suit for setting aside of the said exchange deed within three years after attaining majority, the transaction is now unchallengable. The learned AAG supports the impugned order with the contention that the said land subject-niatter of the exchange was transferred to the said persons in violation of the provisions of the colony Laws and as such the same was correctly cancelled under MLO 14. Learned counsel for Respondent No, 3 contends that admittedly, Respondent No, 3 being a minor and the property being with the Court of Wards, Mst. Ruqyyia Ehsauullah Tiwana could not have transferred the same to Petitioner No, 1.
According to him, the transaction is void ab initio. He also reiterates the several contents of the written statement already noted above. Learned counsel for the petitioners rejoins to state that the later transactions whereby the plot in Garden Town was sold by Petitioner No, 1 through Mst.
Ruqyyia Ehsanullah Tiwana as general attorney are not accepted or admitted by the petitioners.
3. We have gone through the file of this writ petition with the assistance of learned counsel for the parties and the learned Law Officer. Copy of the exchange deed has been appended with this writ petition as Annexure B. It shows that the agreement was between Petitioner No, 1 and Respondent No, 3 (through her guardian and joint share-holder Mst. Ruqyyia Ehsanullah Tiwana). The "land is stated to be owned by Respondent No,
3. It is an admitted fact on record that Mst. Ruqyyia Ehsanullah Tiwana was not a certified guardian of Respondent No,
3. So far as the land is concerned, it was with the Court of Wards being managed by the Commissioner Lahore Division, Lahore. It is further an admitted fact that superintendence of the person and property of Respondent No, 3 was assumed by the Court of Wards vide notification dated 2.10.1967. Later the Provincial Government appointed Commissioner Lahore Division Lahore as Court of Wards regarding the land which is situated in Sargodha District.
4. Now under Section 13 of the Punjab Court of Wards Act, 1903, upon publication of such a notification, the property vests in the Court of Wards. Section 15 of the said Act disables a ward to transfer or create any charge on, or interest in, the whole or any part of his property which is under the superintendence of the Court of Wards. Section 17 empowers the Court of Wards to sell the whole or any part of the property of a ward or to lease it out for the advantage of the ward or benefit of his property. Section 18 provides that all deeds, contracts or other instruments shall be executed by the Court of Wards in its own name.
5. It will thus be seen that apart from the fact that Respondent No, 3 was admittedly 'a minor and the said exchange deed is void ab initio in terms of Section 11 of the Contract Act, 1872, the property could have been sold only by the Court of Wards by executing a document in its own name.
Admittedly, the Court of Wards is not a party to the said transaction.
6. So far as the said judgment in the case of Buland Khan and 6 others is concerned, in all humility we find ourselves unable to endorse the same. To our mind, Article 44 of the Schedule to the Limitation Act has direct nexus with the provisions of Guardians and Wards Act, 1890, particularly Sections 28, 29 and 30 thereof. Only a transaction by a legal guardian would be voidable. Mst.
Ruqyyia Ehsanullah Tiwana being the mother of Respondent No, 3 is not at all a legal guardian either under the Islamic Provisions or any Statute Law, the transaction by her, even if the property had not vested in the Court of Wards, would be wholly void.
7. So far as other contentions raised by Respondent No, 3 are concerned, we will not be commenting on the same although the very transfer order being relied upon by Petitioner No, 1 in the matter of the plot at Garden Town bears out the said contentions prima facie apart from the fact that even after the said exchange, Mst. Ruqyyia Ehsanullah Tiwana as attorney of Petitioner No, 1 sold the same very plot through registered documents. Since this is a writ petition and we find that the petitioners are relying upon a wholly void document, we are not inclined to further examine the impugned order cancelling the land from the name of Respondent No, 3 when she is satisfied as to the land already owned by her which was given in exchange with the land owned by the Government. The writ petition is accordingly dismissed but without any order as to costs.