This appeal has been filed against the judgment and decree passed by the Courts of Ist Additional District Judge, Hyderabad whereby the suit filed by respondent No. 1 has been decreed.
2. One Ch. Illahi Bux died in the year 1943 leaving behind Ch. Muhammad Iqbal, Muhammad Bashir (appellant No. 1), Muhammad Akram (appellant No. 2), Muhammad Aslam (respondent No. 1) and Mukhtar Bibi (respondent No. 2). The property shown in Schedule A to the plaint is the agricultural land inherited by the legal heirs. Each of the sons had 3/7 annas share and Mukhtar Bibi had 1/9 paisas share. The appellants Nos. 1 and 2 and respondent No. 1 purchased 3 annas 7 pies share of Muhammad Iqbal from the joint assets. Accordingly it is alleged in the plaint that in the property shown in Schedule A the shares of appellants Nos. 1 and 2 and respondent No. 1 came to 4 annas 7 pies each and 1 anna 9 pies for respondent No. 2. In respect of property shown in Schedule B to the plaint it has been alleged that it consists of undivided joint agricultural land purchased by the appellants Nos. 1 and 2 and respondent No. 1 from their joint income in equal shares which were purchased either in their respective names or in the names of appellants Nos. 3 and 4 who were alleged to be benami khatedars having no share in the property. It was alleged that the appellants 1 and 2 had no source of income other than the one from the property owned by them jointly with the respondent No. 1. Appellants Nos. 3 and 4 are the sons of appellants Nos. 1 and 2 respectively having no independent source of income of their own and therefore the property standing in their name was purchased from the joint income of the property and appellants Nos. 3 and 4 have no title or interest in it. The property shown in Schedule D is joint movable property consisting of agricultural implements and cattles shared equally by the appellants Nos. 1, 2 and respondent No. 1.
Schedule A/ I though mentioned in the plaint, the same has not been annexed with the plaint. Mr. Mushtaq and Mr. Desa the learned counsel for the parties have admitted that no such Schedule marked as A/1 was filed. According to them the dispute relates to properties mentioned in Schedules A, B, C & D. In the prayer clause no reference has been made to Schedule A/1. In the circumstances the admitted position is that no reference has to be made to Schedule A/1. It has been alleged that the entire properties and agricultural activities were managed and carried out by appellants Nos. 1 and 2 and respondent No. 1. The appellants Nos. 1 and 2 had to maintain the accounts and therefore the respondent No. 1 is entitled to 4 annas 9 pies share in the properties.
The respondent No. 1 further alleged that on 25-I1-1958 he executed a sale deed in respect of his share of 3 annas 7 pies in the land shown in Schedule A and his share in joint land purchased in his name shown in Schedule B in favour of appellants Nos. 1 and 2. It is alleged that it was not intended to be a sale but was executed as a security for a promised loan of Rs. 20,000 to be advanced to him by the appellants Nos. 1 and 2. This amount was not paid to him and the sale deed was never acted upon. It is further alleged that the- holding of respondent No. 1 shown in Schedules A & B to the plaint was a minimum holding within the meaning of Sind Rural Credit & Land Transfer Act, 1947 (hereinafter referred to as the said Act of 1947). As the sale was effected without the prior sanction of the Collector as required by the said Act of 1947, the same was void. The respondent No. 1 further alleged that the joint Awtak mentioned in Schedule C to the plaint was demolished and reconstructed on the same plot from the material of the demolished property and he claimed 1/3rd share in the Awtak. According to respondent No. 1 he made several demands oral as well as by notice dated 17-11-62 for partition and accounts but the appellants Nos. 1 and 2 have avoided.
Similar demand was made on 16-2-1973 but the appellants Nos. 1 and 2 denied his title and refused the partition and surreptitiously mutated their names in the records.
3. The appellants filed their written statement denying the allegations made by respondent No. 1 stating that the registered sale deed dated 25-11-1980 is valid and sale consideration was paid to respondent No. 1. They denied that the share of Muhammad 1qbal was purchased from the joint assets of the parties and, therefore, respondent No. 1 did not have any share in that property. In respect of lands mentioned in Schedule B to the Plaint it was pleaded that the lands were not purchased by the respondent No. 1 nor from the joint income. It has been stated that some of the lands were purchased by appellants Nos. 1 and 2 some were purchased by appellants Nos. 3 and 4 from their own personal in come and it has been denied that appellants Nos. 3 and 4 are benami khaatedars. It was further pleaded that appellants Nos. 1 and 2 have other source of income besides the income from the land in Suit and claimed that Otak in question is situated on lands bearing Survey No. 96/ 1 which is the sole property of appellant No. 1. They have challenged the correctness of the contents of Schedule B and denied that the suit land is special occupancy granted under Government Occupancy Act of 1899. It was denied that the property was joint and that the agricultural activities were carried out jointly by the parties. The allegations with regard to the sale deed dated 25th November, 1958, was denied in toto. It was alleged that no permission from Collector to sell the land was necessary. In any event post facto permission could be granted and after the amendment permission was not required. Therefore, the sale is not hit by the provisions of the said Act of 1947. In respect of Otak it is alleged that as it had collapsed it was demolished and has been reconstructed and the respondent No. 1 has no share in it. During the trial the respondent No. 1 examined himself and other witness Muhammad Iqbal. On behalf of the appellants only the appellant No. 1 was examined. The trial Court, however, decreed the suit.
4. Mr. Mushtaq Memon the learned counsel for the appellants has challenged the judgment and decree passed by the learned trial Court and has contended that the learned trial Court has not properly appreciated the evidence. He has challenged the finding that the letter written by appellant No. 1, Exh. 77 is genuine and further that it has wrongly been held that the sale deed dated 25-11-1958 was void and hit by the said Act of 1947. It is an admitted position that Muhammad Iqbal has no share in any property mentioned in the Schedules including Schedule A.
In this Schedule the dispute is in respect of the share of Muhammad Iqbal which the respondent No. 1/ plaintiff claims to have been purchased from the joint assets of the appellants Nos. 1 and 2 and respondent No. 1. In this regard it is to be considered whether the property sold by Muhammad 1qbal is owned jointly by appellants Nos. 1 and 2. There is nothing in evidence or the appellants to show that Muhammad 1qbal was inimical towards the appellants or that he was in any manner favouring the respondents. From the correspondence it seems that Muhammad Iqbal had good relations with all the brothers and had no reason to favour any one of them particularly when he had no interest in the property. The fact remains that even the summons, notices and letters addressed to the appellants Nos. 1 and 2 were received by them on the address of Muhammad Iqbal. From this fact it can be presumed that if they were not residing with Iqbal at least they were on regular visiting terms and were available there at all material times. Muhammad Iqbal in his evidence has supported the case of the respondent No. 1. From the large number of documents excluding Exh. 77 a letter written by respondent No. 1 which I will deal separately it is clearly established that the appellants Nos. 1, 2 and respondent No. 1 were jointly 'holding and managing the agricultural lands. The appellants Nos. 1 and 2 have regularly been consulting the respondent No. 1 and informing him from time to time about the condition of crop, the rates at which the produce was to be sold, payment of revenues and matter relating to the agriculture. The appellant No. 1 in his evidence has stated that he bad no connection with respondent No. 1 and was, only looking after the agricultural land and crops which were completely separate. But this fact is completely contradicted by his own letters which were brought on record as well as by the evidence of Muhammad Iqbal. The evidence of Muhammad Iqbal who is an independent and disinterested witness seems to be truthful and impartial. A long series of letters have been filed by the respondent No. 1 which shows that the parties were jointly holding the property which was managed by appellants Nos. 1 and 2 in consultation with the respondent No. 1 and that the income of agricultural produce was being kept jointly and from time to time was distributed amongst them. However, there does not seem to be any proper and correct account to show the actual income, expense and the amount paid to each one of them.
5. The respondent No. 1 has produced a letter dated 17-I1-62 which was sent to appellants Nos. 1 and 2 demanding accounts and partition of the property as claimed in the suit. According to respondent No. 1 this letter was replied by appellant No. 1 for himself and on behalf of appellant No.
2. This document is being heavily relied upon by respondent No. 1 and has been seriously contested by the appellants as a forged document. The appellants have stated that respondent No. 1 Muhammad Akram had never written this letter. This letter is in reply to the notice of respondent No. 1 and is reproduced as follows: "Dated: 19-8-1963 From:-Chaudhry Bashir Ahmad & Chaudhry Muhammad Akram R/O Kot Abdullah, Taluka Matli.
Dated 12-12-62.
To, Chaudhry Muhammad Aslam, Advocate, Hirabad, Hyderabad.
Dear Brother, In reply to your notice dated 17-11-62 1 write to you on behalf of myself as well as on behalf of Chaudbry Bashir Ahmad as follows:
(1) That your misunderstandings are based on suspicions only. We have neither any design upon your lands, nor any mutations have been done.
(2) Our circumstances took such a shape that we could not pay you the amount promised at the time of execution of the said deed privately intended to be a mortgage. We would have returned the document, but we assure you that it has been lost. Rest assured we do not want your land nor will we be so (torn) as to ask for what we have not given.
(3) You have no separate land. All lands are joint. We have already purchased lands from Muhammad Iqbal and within a day or two we are going to purchase 56 acres of Son Rani from Pir Ali, Ghulam Shah and Pir Salim Shah. The deal will cost Rs. 25,000 plus other expenses. As already agreed upon you are equal sharer in all the purchases. Your share of the last years has been rightly utilized in these purchases. Had we given you, you would have spent all. Don't you realise that we are benefactors and well-wishers?
(4) We are ready to do accounts. Brother rest assured, with all the purchases and other expenses, nothing will be left of your share of crops. We have checked the accounts. In the end we believe you will not get anything, but on the contrary you will have to pay us about one or two thousand rupees.
At present we are very busy so kindly wait for a month or so. Then you can come and do accounts and partition all the lands including, Muhammad Iqbal's and those purchased from Pirs or Barrage Department. Do not listen to others. Brother will meet you personally and remove your misunderstandings. Only give us a solid assurance that you will not sell away the lands to anybody else.
Dated 12-12-62.
Yours, (Sd.) Muhammad Akram."
6. In fact a reading of this letter makes it clear that the property was joint and that the lands were undivided, the properties were purchased and leases were obtained from the income of the joint property and further that appellant No. 1 was ready to render account: and wanted the respondent No. 1 to be pacified and not to create any embarrassing situation. The learned counsel for the appellant has attacked the finding of the trial Court who has held that this letter Exh. 77 was written by appellant No. 1. In view of the dispute between the parties over the signature of the appellant No. 1 the learned trial Court had obtained a specimen signature of appellant No. 1 for comparing it with the signature on the letter. The respondent No. 1 made his signature in English in capital letters. The signature in Exh. 77 was in small letters. The respondent No. 1, however, pleaded that he did not know English and was not able to sign in small letters. This statement was factually incorrect as he admitted in his cross-examination that he had studied up to 4th class and English was one of the subjects. Further, other documents were brought on record in which he had admittedly signed in English. Although in majority of the documents he had signed in Urdu or in Sindhi in two documents, namely, Exh. 73/12 and Exh. 80/10 the respondent No. 1 had written 'Kot Abdullah' in English in small letters. The fact that respondent No. 1 refrained from writing in small letters leads to the presumption that he was trying to avoid comparison with the signature in English appearing on Exh.
77. This clearly establishes that the plea of appellant No. 1 was completely incorrect. This circumstance has impressed the learned trial Court to hold that the letter Exh. 77 was written by appellant No. 1. The procedure of obtaining the signature of a party after the proceedings have commenced, for purposes of comparison with the disputed signature though valid is hazardous and cannot be treated as safe guide for proving disputed signature. Once the proceedings have started and the parties have become aware of the disputed signatures any party denying the signature can make an attempt to change or alter his handwriting thereby creating situation by which comparison may become impossible. It is for this reason that the Courts have not relied upon such comparison as conclusive proof. Unfortunately in the present case the respondent No. 1.
Did avoid writing in small letters. However, the learned trial Court had before it Exh. 73/12 and 80/10 which bore the admitted handwriting of respondent No. 1. Furthermore, the learned trial Court has taken into consideration the circumstantial evidence to hold that the letter dated 17-11-1962 was a genuine document: Furthermore this document (Exh. 77) was written on behalf of appellants Nos. 1 and 2 but was signed by appellant No. 2. There was nothing to prevent appellant No. 1 (Muhammad Bashir) to have come in the witness-box and denied the letter and its contents but he avoided to do so. This fact also lends support to the contention of the respondent No. 1.
7. It is significant to note that appellant No. 1 namely, Bashir Ahmad who has been regularly and actively managing the agricultural lands has not come in the witness-box to give statement and support the appellants' case. He was one of the main witnesses who had full knowledge of all the facts and dealings involved in the case. He was in the know of all the affairs of the properties which were inherited by the parties and also as some of the properties had been purchased during this period in the name of his son as well as in the name of the son of Muhammad Akram, it was necessary that he should have been examined. It was alleged that appellants did not have any separate source of income for purchasing the property. It was further alleged that properties standing in the names of appellants Nos. 3 and 4 are benami properties. On the face of these allegations it would have been in the fitness of things that the appellant No. 1 should have stepped in the witness-box. The fact that appellant No. I has refrained from doing so may lead to the inference that the allegations made against him by the respondent No. 1 are correct.
8. From the above discussion it is clear that the properties were held by appellants Nos. 1 and 2 and respondents 1 and 2 as joint properties which were being managed by appellants Nos. 1 and 2 and out . Of the joint income of the properties certain other properties as alleged by the respondent No. 1 were purchased and lease was obtained from the Government. Mr. Mushtaq Memon the learned counsel for the appellants has contended that the properties purchased by the appellants are exclusively in their name and the registered sale-deeds also provide for the share of each of the vendees and in the circumstances he has contended that the property purchased from Muhammad Iqbal is not a joint property and is separately owned by the appellants in their own name. The learned counsel for the respondents No. 1 referred to the statement of Muhammad Iqbal who has stated that 96 acres were sold by him to the remaining brothers (appellants Nos. 1 and 2 respondent No. 1) jointly. My attention has been drawn to Exh. 80/9, a letter of Bashir Armad dated 21-8-1956 which indicates that the consent and assistance of respondent No. I was being sought for purchasing the land from Muhammad lqbal which was to be expedited. There are three sale deeds Exh. 51 dated 3-7-1956, Exh. 52 dated 6-2-1958 and Exh. 53 dated 21-9-1956 executed by Muhammad Iqbal. These sale-deeds do not include the name of the respondent No. 1 but Muhammad Iqbal the vendee has stated to have sold jointly to the appellants Nos. 1, 2 and respondent No. 1. This brings to the crucial question whether the properties were purchased from the joint fund or the exclusive money of the appellants ?
9. The appellants have not produced any evidence to show that they had some independent sources of income or that they had raised money from an independent source for the purchase of this property. In fact the letters written by the respondent No. 1 conclusively prove that 'the appellants were not in a happy financial position and were entirely depending upon the income from the agricultural properties. It is an admitted position that Ch. Illahi Bux died leaving hardly any cash and the parties had inherited the lands. Thereafter appellants Nos. 1 and 2 jointly managed this joint property in consultation with the respondent No. 1 who was studying at Hyderabad and was looking after the sale of cotton. The appellants Nos. 1 and 2 have not even suggested that they had any other source of income other than what they derived from the agricultural lands. The appellants Nos. 1 and 2 who were managing the properties have not produced any account book to establish that there was sufficient income in their share which they had utilised for purchasing the lands. The concept of joint family as understood under Hindu Law is alien to Muslim Jurisprudence. If several Muslim co-sharers are living together and some of them require any property then no presumption will arise that they were acquired for the benefit of the members of family. However, a held in Aminuddin Munshi v. Tajuddin AIR 1932 Cal. 538., "where members of a joint Muslim family live in commensality possessing the family property in common andjointness, the acquisition by one of the members occupying the position o managing member, during the jointness of the family will be presumed to b for the benefits of the members of family, because such person is in fiduciary relationship with other members and if any property as acquired stands in the name of such person, the burden of proving that it was; his self-acquire and not the property of the joint family will be on him". The appellants Nos. 1 and 2 on the evidence occupy the position of managing members. The are to fiduciary relationship with the respondent No. I and have obligations to discharge. In these circumstances the applicability of Trust Act cannot be ruled out and it is for the appellants Nos. 1 and 2 to prove that during their management the properties were acquired from their independent source o fl in which the respondent No. 1 has no interest. No such evidence h been produced by the appellants. This burden cannot be discharged by merely producing the sale deeds and revenue records. Appellants Nos. 3 and 4 are sons of appellants Nos.
1 and 2 respectively. They are young and have no separate occupation, business or service. The properties were purchased in the name of appellants Nos. 3 and 4 during their minority. In the circumstances the presumption would be that the money was provided by the appellant Nos. 1 and 2 and they are the real purchasers holding the property in the name of their sons. The appellants have not produced any evidence to prove any independent or separate source of income by which property was purchased in the name of appellants including appellants Nos. 3 and 4. The appellants Nos. 3 and 4 have not been examined. The only conclusion, in the circumstance would be that the appellants Nos. 3 and 4 were not the real owners and the properties were purchased by appellants Nos. 1 and 2 in their joint name from the funds of the family belonging to appellants Nos.
I and 2 and respondent No. 1.
10. Now turning to the sale deed dated 25th of November, 1958 which was executed by respondent No. 1 in favour of appellants Nos. 1 and 2 the main contention of the respondent No. 1 is that it was never intended to be a sale deed but was required to be a security for the advance of Rs. 20,000 which he needed and which the appellants Nos. 1 and 2 and agreed to provide. It has been alleged that the appellants Nos. 1 and 2 had promised to hold it as a security and not to give effect to it and return it when the loan was repaid. The respondent No. 1 has stated that in spite of the execution of sale-deed loan was not paid and this document was also not returned on the pretext that it has been lost. In any event the respondent No. I has stated that the sale deed was not valid as no permission for sale was obtained from the Collector in terms of Sind Rural Credit and Land Transfer Act, 1947. Mr. Mushtaq Memon the learned counsel for the appellants has submitted that the sale deed was a registered document acknowledging receipt of Rs. 25,000 before the sale deed was executed and that it was a proper conveyance. He also contended that the sale-deed was not hit by the Sind Rural Credit and Land Transfer Act of 1947 as ex post facto permission could be granted and that the appellant No. 1 applied for such permission in the year 1963 but Collector informed him that at that time no permission was required.
11. No doubt the sale deed is a registered document but the real nature of transaction has to be considered as the sale has been challenged by respondent No. 1. In this regard the statement of respondent No. 1 is consistent. Muhammad Iqbal has supported respondent No. 1 stating that it was intended to be a security for the amount which was to be advanced but in fact was not advanced to the respondent No. 1. The appellants have examined only appellant Muhammad Akram whose statement for payment of consideration seems to be conflicting and contradictory. First he stated that the entire sale consideration was paid before, then he explained that it was paid before the sale deed was registered before the Registrar. In the cross-examination he stated that Rs. 5,000 were paid before the registration of the sale-deed and Rs. 10,000 were paid before the Registrar.
This statement contradicts the endorsement made in the sale-deed to the effect that Rs. 10,000 were paid at the time of registration before the Registrar. The fact of payment stated by appellant No. 2 is contradictory and supports the contention of respondent No. 1. From record it seems that at the relevant time the parties were on good terms and had full confidence in each other. In fact respondent No. 1 has stated that he had been visiting and was being entertained by the appellants as usual. No valid reason has been pointed out by the appellants why Iqbal would state falsely against them. The other fact which supports the plea of respondent No. 1 is that if it was really intended to be a sale of the properties the appellants Nos. 1 and 2 should have got their names mutated in the revenue records. This was not done by the appellants immediately. The learned counsel for the appellants has endeavoured to explain the situation by stating that perhaps because a permission was required by the Collector in the beginning and had not been obtained, therefore, the matter had remained dormant and no sooner the law was amended and the permission was not needed the names of the appellants were mutated. This explanation has no force. It has been brought in evidence that the properties purchased by the appellants from Muhammad Iqbal were also subject to restrictions as provided by the said Act of 1947. In these cases although the properties were being purchased from another brother the permission was obtained before the sale. No special reason or explanation has been offered why such permission was not obtained before the sale as in the previous case. This fact lends support to the plea that the sale was not intended by the parties to operate as a sale. In this regard Mr. B. J. Desa the learned counsel for the respondent No. 1 has stated that the sale deed was without any consideration. His contention is that from evidence it is established that sale consideration was not paid to the respondent No. 1. Therefore, he has contended that it is a case of failure of consideration which can be proved under Proviso (1) to section 92 of the Evidence Act. The evidence on record supports his contention and the evidence produced by the respondent No. 1 cannot be excluded from consideration.
12. The next contention challenging the sale deed is that it is hit by the provisions of Sind Rural Credit and Land Transfer Act of 1947. It is an admitted position that in the year 1958 at the material time as the said Act of 1947 stood, alienation by respondent No. 1 was hit by the provisions of the said Act of 1947. This Act was amended in the year 1963. Before the amendment under section 3 of the said Act where the holding .Of a landlord did not exceed the minimum area permanent alienation without the sanction of the Collector was prohibited. Under section 5 permanent alienation of land which was prohibited under section 3 was not to take effect as such to the extent I was so prohibited. Unless and until sanction was given thereto by the Collector. Subsection (ii) of section 5 provided that such sanction may be given after the act of alienation is otherwise completed. Section 7 (1) provided that the I provision of this section shall have the effect as respects permanent alienation of land prohibited under section 3 read with section 4 to which the Collector has not given or has refused his sanction. Subsection (2) also provided that a permanent alienation of land to which subsection (t) of section 3 read with section 4 applied shall be null and void. A reading of these provisions makes it clear that a permanent alienation of land as provided by sections 3 and 4 is prohibited and shall not take effect unless sanction is given by the Collector which may be granted even after the act of alienation is completed. Section 7 makes it very clear that so long as the Collector has not given or refused his sanction a permanent alienation shall be null and void. The effect of sections 5 and 7 is that a permanent alienation made without the sanction of the Collector shall remain null and void and will not be validated unless the Collector has granted the sanction. Reference was made to the case of Kist. Hawa v. Muhammad Yousuf and others (PLD 1969 Kar. 324) where it was held that any transaction made in violation of section 5 of the said Act of 1947 was void and unenforceable. The learned counsel for the appellant has, however, contended that by West Pakistan Act IV of 1963 sections 3, 4, 5, 6, 7 and 8 of the said Act of 1947 were repealed and were substituted by a new section 3 which has not provided for any prohibition as contemplated by the repealed provisions of the said Act of 1947. He further contended that in view of M. L. R. 64 whereby the minimum holdings were reduced no permission was required and in fact when the appellants had applied for a permission the Collector had informed them that no permission was necessary. This happened in the year 1963. Mr. Mushtaq Memon the learned counsel for the appellants has relied on the case of Lila Ram v. Ghulam and others (1975 SCMR 294) for the proposition that in view of M.L.R. 64 the provisions of the said Act of 1947 were not operative and there was no bar on sale of the property by respondent No. 1. Lila Ram's case is completely distinguishable on facts. There the dispute was firstly with regard to the status of the property which was being determined by the Custodian. The purchaser had obtained a decree for specific performance of an agreement to sell the land. Subsequent to the amendment an application for execution was filed and the Official Receiver was appointed to execute the sale- deed. The sale-deed was executed subsequent to the date of amendment repealing the provisions requiring sanction. Consequently the provisions of sections 3, 4, 5 t and 7 of the said Act of 1947 could not be attracted. In the present case before the promulgation of M. L. R. 64 and the amendments the sale-deed had been executed. In these circumstances this sale deed was hit by the provisions of the said Act of 1947 and was void and of no effect till such time the permission was granted by the Collector. The question then arises whether on promulgation of M. L. R. 64 or repeal of sections 3, 4 and 5 the sale was automatically validated. In this regard reference is made to section 4 of West Pakistan General Clauses Act which is similar to section 6 of the General Clauses Act. Section 4 provides that where an Act is repealed then unless a different intention appears the repeal shall not affect the previous operation or anything duly done or suffered thereunder. It makes very clear that unless contrary intention appears anything done or suffered under the repealed Ac shall continue and will not be affected. In the present case nothing has been pointed out to. Show that by promulgating M. L. R. 64 or by the amendment made in the year 1963 it appears that anything duly done or suffered under the said Act of 1947 has not been saved. As the sale deed made on 25th November, 1958 had suffered to be void and not having been validated specifically by any amendment or any other law the sufferance was to continue. By promulgation of M. L. R. 64 which reduced the minimum holding or repeal of sections 3, 4, 5 and 7 of the said Act of 1947 the sale-deed or the transaction was not validated. It was a void transaction to which not only the sufferance had attached but a certain right had accrued to the respondent No. 1 and therefore it could not be saved by the promulgation of M. L. R. 64, or by repeal of sections 3, 4, 5 and 7.
13. The learned counsel for the appellant has endeavoured to argue that the suit was barred by time and that the plaint suffered from misjoinder of causes of action. He also pleaded that the suit was barred under section 42 of the Specific Relief Act as it should have been for cancellation of the sale deed. The respondent No. 1 has claimed to be a shareholder in joint possession of the property and as such he has sought a declaration and partition of the property. The frame of suit in my opinion is proper. The sale deed being. Invalid it was not necessary to seek its cancellation. The learned counsel for the appellants while pressing his plea for limitation has stated the suit should have been filed under Article 14 of the Limitation Act for setting aside the entry made in the record of rights which was effected in the year 1960. The respondent No. 1 has filed suit for declaring the sale-deed illegal and not for cancellation of the entries in the record of rights. Such entries were made on the basis of an invalid sale deed, therefore, the same were void. In these circumstances Article 14 is not applicable. The cause of action to the respondent No. 1 arose in 1963 when it became known to respondent No. 1 that the appellants on the basis of void and illegal transactions have fraudulently got their names mutated in the records. The suit is, therefor, within time under Article 120 of the Limitation Act.
In view of the above discussion the appeal is dismissed with no order as to costs.