' NISAR HUSSAIN KHAN, J.---The petitioners have challenged the judgment and decree of learned Additional District Judge-VITT, Peshawar dated 10-5-2004 whereby their appeal was dismissed and judgment and decree dated 6-3-2002 of learned Civil Judge, Peshawar was maintained, whereby suit of petitioners was dismissed.
2. This petition has been heard ex parte because nobody has turned up on behalf of the respondents to defend the impugned judgment. The note of Deputy Registrar dated 9-8-2010 transpires that respondent No,3 was personally served while respondents Nos.2 and 4 to 1 were served through respondent No,3 and respondent No,12 was served through his son but they did not turn up to mark their attendance in compliance of the notice. Hence the respondent No,3 was placed ex parte while counsel for the petitioner was directed to file correct addresses of remaining respondents. In compliance of this order addresses of respondents were submitted by the petitioners vide C.M.No,1596 of 2010 dated 1-9-2010. On 1-12-2010, the Deputy Registrar ordered to serve the remaining respondents through publication in daily 'Khubrain' because service of respondents through normal process was not possible. As a consequence, they were served through publication in daily 'Khubrain' dated 5-4-2011. Resultantly all the respondents were placed ex parte on 6-5-2011 by Deputy Registrar of this Court due to their non-appearance. Even today, nobody has turned up on behalf of the respondents, despite they were waited for last moment of the court time. Hence this petition was heard and decided ex parte.
3. The resume of facts forming the background of this petition is that petitioners filed suit in the court of Senior Civil Judge, Peshawar, alleging therein that they are owner in possession of the property mentioned in the plaint to the extent of their share devolved on them from the inheritance of one Hazrat Gul their predecessor and Mutation No,1693 dated 13-6-1974 was illegal, unlawful having been attested committing fraud and misrepresentation which is liable to be cancelled, as it was attested during the minority of petitioners Nos.1 and 2. The respondents contested the suit and consequently it was dismissed. The appeal filed by the petitioners met the same fate.
4. Learned counsel for the petitioners contended that first suit was filed on 13-2-1988 which was withdrawn with permission of the court to file a fresh suit. As a consequence fresh suit was filed on 11-12-1993. He further contended that petitioners Nos.1 and 3 were admittedly minor at the time of attestation of suit mutation so it was an illegal transaction. He submitted that an application was filed by the petitioners that their signature and thumb-impression be obtained and sent to the FSL to compare with the thumb-impression and signature present on the suit mutation but that application was not entertained. He further submitted that learned appellate court had clearly observed that petitioners were minor at the time of attestation of suit mutation but even then has erred in law to dismiss the appeal.
5. The perusal of record reveals that petitioner No,1 appeared as P.W.2 in court and produced their NICs as Exh.P.W.2/2 and Exh.P.W.2/3 according to which the dates of birth of petitioners Nos.1 and 2 are 1963 and 1961 respectively. While the suit mutation was attested on 13-6-1974. These documents were tendered in evidence without objection on the part of the defendants/respondents. In light of the entries of NICs the petitioners No,1 and 2 came up to the age of 11 and 13 years respectively thus they were admittedly and undisputedly minor at the time of attestation of mutation. This fact is further supplemented by School Certificate-of petitioner No,1 being tendered as Exh.P.W.2/4. This material part of the statement has not been contradicted by the defendants/respondents during cross-examination. The perusal of statement shows that not a single suggestion has been put to this witness with regard to his statement on the point of minority.
It is settled law of the honourable Supreme Court that if a material fact is deposed by a witness in his statement and that is not rebutted during the cross-examination by the other side it would amount to admission on their part. This proposition is fortified by the case titled: Chief Engineer Irrigation Department N.-W.P.F. Pehawar and 2 others v. Mazhar Hussain and 2 others PLD 2004 SC 682 and Mst. Nur Jehan Begum through Legal Representatives v. Syed Mujtaba Ali Naqvi (1991 SCM R 2300). On the other hand, Turab Khan appeared as DW-2 who has also admitted the minority of the petitioners at the time of attestation of mutation during his cross-examination. Besides that, the entries of NIC carries presumption of truth. This principle has been settled by the Supreme Court in case titled: Malik Muhammad Faisal and another v. State _Life Insurance Corporation through Chairman and 2 others (2008 SCM R-456) as under:- "Now the question arises as to whether under the facts and circumstances of this case, the entry of the date of birth incorporated in the National Identity Card is to be believed or record produced by the respondent-Corporation should be preferred. It has rightly been held by the High Court that "Ordinarily the date of birth mentioned in the National Identity Card is to be taken to be correct unless proved to be contrary by cogent and convincing evidence."
6. It is admitted position on the record that petitioners Nos.1 and 2 were minor at the time of attestation of mutation. Learned lower courts have wrongly applied Article 44 of Limitation Act to non-suit the petitioners. The language of the Article itself envisages that limitation for a suit by a Ward who has attained majority, to set aside the transfer of property by his guardian is three years when the Ward attains majority. In the instant case, the transfer has not been effected by the guardian of the minor but the facts floating on the record vividly suggest that the signature and thumb-impression of the minors were obtained. So in the given situation, there is no question of application of Article 44 of Limitation Act. It is settled law of the apex court that minor is incapable and incompetent to enter into an agreement or transaction due to his minority. So any transaction made by the minor is void ab initio. There is no need to formally challenge the void order because the same has got no entity or legal worth in the eye of law and for getting those set aside there is no question of limitation. It is settled law that the minor cannot enter into any transaction and if any such transaction is brought to the notice of the court, that is liable to be struck down. In case titled: Ahmad Khan v. Rasul Shah and others (PLD 1975 Supreme Court 311), their Lordship held:-- "But this deed is actually executed by Mst. Hawa Jan widow of Abbas Khan, purporting to be on behalf of her minor son Haidar Khan as guardian of his person and property to pay off certain outstanding debts contracted by her deceased husband. It is well-established principle of Muslim Law that a de facto guardian of a minor has no power to transfer any right or interest in immovable property of the minor. Such a transfer is not merely voidable but is void--See Monogram 364 of Principles of Muhammadan Law by Mulla, 17th Edition at p.299. This statement of law is based upon a number of judicial precedents of high authority including by their Lordships of the Judicial Committee, noticed at the foot of the page".
' Likewise in case titled: Ahmad Nawaz Shah v. Chief Land Commissioner, Punjab (1974 SCM R 448)
(relevant page 451) their Lordships observed:-- "It is fallacious to suggest that these provisions were intended to empower a minor governed by Muslim Law and falling under relevant category of persons to make a gift which the Principles of Muslim Law do not permit. If the argument were to be stretched to its logical conclusion, it would indeed lead to startling results. It will also render valid a transfer by a lunatic or any other person under a disability under the law. Such absurd results are unthinkable rather it is clear from the language of the statute that intention is to nullify certain kind of transfers of land or creation of interest therein which but for the Regulation would have been perfectly valid. Therefore, if any transfer is void ab initio because transferor is under a disability, it is no transfer in the eye of law and it can be struck down on that score, independently of the provisions of the statute. Therefore, the learned Single Judge and the Chief Land Commissioner were right to treat the impugned gift by the petitioner a nullity."
' Similarly in case titled: Rehman v. Yara through L.Rs, and others (2004 SCM R 1502) it was ruled inparagraph-8 of the judgment as under:-- "The said contention has no merit considering that learned Civil Judge after going through the relevant record rightly observed that Mutation No,59 was sanctioned on 12-9-1923 in presence of plaintiff Yara who was a minor at that time who had accompanied by his mother consequently Yara the plaintiff was not bound by any such mutation nor his mother's consent would bind him Learned District Judge in para-10 erred in disagreeing with the finding of fact of learned Civil Judge with regard to effect of minority of Yara plaintiff at the time of Mutation No,59 dated 12-9- 1923 which under the law was correctly arrived at by the learned Civil Judge that mother being de facto guardian of Yara the minor was void ab initio, therefore, no transfer could be held valid in favour of defendants Nos. 1 to 8-------."
In light of the principle set by the Hon'ble Supreme Court, as enunciated in the above mentioned case-law, the impugned mutation is void, ab initio, having been effected on , behalf of minors.
7. In light of the factual background of the case, it is manifest that the impugned mutation was fraudulently entered and attested during the minority of the petitioners. It is settled law that when fraud is alleged and established, any transaction based on such fraud would come within the pale of section-18 of Limitation Act, which provides that the limitation would run from the time when the fraud first became known to the person injuriously affected thereby. This principle has been settled by the Hon'ble Supreme Court in case titled: Fatahuddin v. Zarshad and another (1973 SCM R 248) as under:-- "This contention is, however, without any substance, as under Article-120 of the Limitation Act, the time begins to run from the date the right to sue accrues and in this case the right to sue accrued from the date of discovery of the fraud which was specifically alleged to be in 1969. ' and in case titled: Bakhsha and others v. Chugatta (2002 SCMR 1353) their Lordship held that:- "Even otherwise if Article 120 of Limitation Act is held to be applicable without conceding, under which it could be filed within period of six years from the date when right to sue accrues, which in this case would accrue when factum of fraud had come to the knowledge of the plaintiffs; as such the suit would still be not barred by time".
In this view of the matter, suit of petitioner was well within time.
8. Learned trial court has laboured under misconception that the suit is incompetent in its present form. Because the petitioners have filed fresh suit with permission of the court and that order was not challenged by the respondents, so it attained finality, which was not required to be reopened by the learned Civil Judge. Likewise learned appellate court has also acted illegally by not applying its judicial mind to rectify the erroneous judgment and decree of learned Civil Judge which was based on erroneous assumption of law. Thus both the judgments are patently illegal based on wrong proposition and Patent error of law which cannot be maintained in view of the facts of the case, and law applicable thereto.
9. For the reasons discussed above, this petition is allowed. The impugned judgments and decrees of both the courts below are set aside and suit of the petitioners is decreed as prayed for.