1. ' The present appeal has been directed against the judgment and decree of the Additional District Judge Poonch, whereby the judgment and decree of the trial Court were upheld.
2. ' The brief facts of the case are that Muhammad Yaqub Khan died in year 1947, leaving two daughters, Mst. Hanifa Begum and Mst. Mahfooza Begum, a widow Mst. Imroza Begum and Mst.
3. Bago, his mother as his legal heirs. After the death of Muhammad Yaqub, Mst. Imroza Begum, the mother of the appellant, Mst. Hanifa Begum, contracted a second marriage with Muhammad Afzal respondent. The minor. Children, Mst. Hanifa Begum and Mst. Mahfooza Begum also resided with her mother, Mst. Imroza Begum and minors had been looked after by Muhammad Afzal respondent. Mst. Hanifa Begum and Mst. Mahfooza Begum inherited from the estate left by their father to the extent of 15 kanals along with two-third share in the house. One Nasru Khan who was brother of the grandfather of appellant, Mst. Hanifa Begum, arrogated himself as guardian of the minors and executed a sale deed on 26-11-1957, in favour of Hansu Khan, the father of respondent Muhammad Afzal. Mst. Hanifa Begum and Mst. Mahfooza Begum brought a declaratory suit, praying for the cancellation of the sale deed, dated 26-11-1957 which was executed in favour of Hansu Khan, the father of Muhammad Afzal respondent and also sought the possession of the suit land. A prayer for declaration that mutations 'sanctioned in favour of Hansu Khan on the basis of sale deed and after his death in favour of Muhammad Afzal respondent, are null and void, was also made. It has been further alleged in the plaint that appellant and her sister Mst. Mahfooza Begum had been under the care of their mother, Mst. Imroza Begum and and their grandmother Mst. Bago who died respectively in years 1968 and 1973. It was also alleged by the plaintiffs that suit land had been in possession of Mst. Imroza Begum and Bago as their guardian.
4. ' In the written statement, the averments made in the plaint were denied and it was contended that respondent had been in possession of the suit land since 1947 and after the marriage of Imroza Begum with respondent in 1953, the appellant, Mst. Hanifa Begum and Mahfooza Begum had been under the care of respondent and he brought them up and arranged their marriages. Both the subordinate Courts have held that sale-deed was executed for the benefit of the minors and suit filed by the appellant was time-barred. It may be pointed out at this stage that Mst. Mahfooza Begum compromised with the respondent during the pendency of the suit in the trial Court and she is no moreta contestant.
5. 'I have heard the arguments and gone through the file. Under Muslim law, the de facto guardian of a minor is not competent to alienate the property A of the minor even for necessity. Such a transfer is ab initio void and transfers no title to the transferee. The reference' may be made to case reported as PLD 1981 Azad J & K 33, wherein a number of authorities on the subject were reviewed and it was held that a de facto guardian of Muslim minor was not eompetent to transfer the immovable property of the minor even for the benefit of the minor. The learned counsel for the appellant could not cite any authority to the contrary. Therefore, the sale deed in favour of Hansu Khan, the father of respondent Muhammad Afzal, executed by Nasru, as de facto guardian of the minors, is null and void ab initio and transferred no title in the property to Hansu. Consequently, the mutations of the suit land sanctioned on 12-3-1957 in favour of Hansu on the basis of sale deed and on his death, in favour of Muhammad Afzal respondent are null and void and of no effect.
6. ' The next point which needs determination is as to whether the suit filed by appellant is time- barred. It may be pointed out at this stage that the Courts below have tome to the conclusion that Muhammad Afzal respondent has been in possession of the suit land after his marriage with Mst.
7. Imroza Begum which took place in year 1953. The sale deed in favour of Hansu was executed on 26-11-1957. It has been asserted in the plaint that Mst. Hanifa Begum married in 1962. In her statement as witness, she has stated that she was of 16 years of age when her marriage took place. It means that she became major somewhere in 1964. Under section 6 of the Limitation Act, it has been provided that where a person is under legal disability he may institute a suit or other proceedings within the same period after the disability has ceased, as would otherwise have been allowed to such person under law. Section 8 of the Limitations Act places a restriction whereby, in no case, the period of limitation can be extended for more than 3 years from the cessation of disability, The combined effect of sections 6 and 8 of the 'Limitation Act is that if on The cessation of disability, the period of limitation expires more than 3 years after the cessation of disability, the plaintiff is not entitled to any extension, whatsoever, and he must sue within the ordinary period of limitation, computed from the starting point of limitation. Where, however, at the time of cessation of disability, the remaining period of limitation is less than 3 years, the plaintiff is entitled to sue within 3 years from the dal of cessation of disability.
8. ' The next question arises as to which of the Articles of the Limitation Act is applicable in cases like the instant one. It is expedient that a brief survey of the case-law on the subject is made before dealing with the question of limitation. In AIR 1915 Nag. 53, it was held that suit by minors for cancellation of transfer deed and for the recovery of possession was not governed by Article 44 or 91 of the Limitation Act. The prayer for cancellation of the deed for setting aside of the sale was held to be superfluous. It was further opined that Article 144 of the Limitation Act was applicable for recovery of possession by the minors. In AIR 1929 All. 879, it was held that as property of the minors was transferred by an unauthorised person, the transfer being ab initio void, it was not necessary for the minor to sue for setting aside the transfer deed. The minor was held to be entitled to sue for recovery of possession under Article 144 of the Limitation Act and Article 44 of the Act was held inapplicable. In AIR 1931 Mad. 597, it was held that suit to set aside alienation by de facto guardian was not governed by Article 44 of the Limitation Act; it was opined that minor could bring suit within 12 years allowed by general law. In A 1 R 1936 Mad. 884, it was held that alienation of minor's property by a person who was neither a de facto guardian nor a de jure guardian was not voidable but ab initio void, as such, it was not necessary for the minor to seek declaration for setting aside the alienation; the minor could bring a suit for possession within 12 years. In AIR 1943 Cal. 203, it was held that Article 44 of the Limitation Act was not applicable to cases of transfer of minor's property by a wholly unauthorised person. In AIR 1954 Hyd. 44, it was held that combined effect of sections 6, 8 and 28 of the Limitation Act was that minor could bring suit for recovery of possession of the property, alienated by his guardian, within 3 years on attaining. Majority or if the remaining period of limitation was more than 3 years, during such remaining period. As minor plaintiff in that case had failed to sue for recovery of possession within period, computed according to the provisions of sections 6 and 8, his title was held to have been extinguished by virtue of section 28 of the Limitation Act. In PLD 1952 Dacca 347, the facts of the case were that the property of the minor was alienated by mother of the minor. It was held that plaintiff could bring the suit for possession within 12 years from the date of sale or within 3 years from the date of attaining majority, whichever expired later. It was further opined that as the plaintiff had not brought the suit within limitation, his title in the property had extinguished. In PLD 1953 B J 1, it was held that burden of proving that suit of the plaintiff was within time, was on the plaintiff and so, it was incumbent upon the plaintiff to mention in the plaint as to when he had attained the age of majority.
9. ' The brief survey of the case-law shows that neither Article 44 no Article 91 of the Limitation Act is applicable in cases for recovery of possession by person whose property is transferred by a de facto guardian. The minor is entitled to bring a suit for recovery of possession within 12 years from the date when the possession of the transferee becomes adverse o within 3 years after attaining majority. It is settled law that possession, under a void deed is adverse to the owner. In the instant case, the sale deed' was executed on 26-11-1957. The plaintiff could institute suit within '12 years which expired on 26-11-1969.. According to the statement of plaintiff herself, she was major when she contracted marriage in 1962. However, she has also stated that she was 16 years old when she was married. Therefore, according to the statement of the plaintiff, she attained majority at the most somewhere in 1964. She had still about 5 years' period for instituting the suit for recovery of possession, out of the period of 12 years, when she became major but she instituted the suit on 5- 8-1973 which was clearly beyond the period of limitation.
10. ' The upshot of the above discussion is that the suit filed by the plaintiff-appellant being time- barred, her appeal stands dismissed with costs.