' ABDUL RAHMAN AURANGZEB, J.---With the concurrence of learned counsel for the parties, this civil revision is being treated as Pacca hearing.
' Necessary facts for the disposal of this civil revision petition are that on 18-12-2007, the petitioner/plaintiff (hereinafter to be referred as "the petitioner") filed a suit for declaration with permanent injunction and possession asserting that he is owner of suit property measuring 19 kanals, 18 marlas, bearing Khewat No,99, Khatooni No,333, situated in Mauza Nabi Pura Khanpur.
The said suit property was given on lease to the respondents/defendants Nos, 1 and 2 (hereinafter to be referred as :"the respondents") in the year, 1986. The petitioner averred in the plaint that a month ago, he came to know that the suit property had been got transferred by respondents Nos, 1 and 2 in their favour and they represented themselves to be the owner of the said suit property.
' Whereupon, the petitioner contacted with Halqa Patwari, who informed the petitioner that respondent No,3/Arshad Ali, had alienated the suit property on 01.04.2004, vide registered sale deed in favour of respondents Nos, 1 and 2. The petitioner alleged that he was minor at that time, whereas, the suit property was collusively sold out by the respondents. Therefore, the registered sale deed dated 01.04.2004, being unlawful and without authority is null and void, as well as, inoperative upon the rights of the petitioner.
3. The suit was hotly contested by respondents Nos, 1 and 2 by filing their written statement, wherein they controverted the claim of the petitioner on various legal, as well as, factual objections.
Respondent No,3/Arshad Ali, father of the petitioner, was proceeded against ex parte.
4. After framing of necessary issues and recording evidence of respective parties, the learned trial court proceeded to dismiss the suit of the petitioner vide judgment and decree dated 14.07.2012.
5. Being dissatisfied with the findings of learned trial court, the petitioner filed an appeal, before the learned Additional District Judge, Ferozewala, who proceeded to dismiss the same vide judgment and decree dated 07.09.2013.
6. The legality of both judgments and decree passed by both the courts below on 14.07.2012 and 07.09.2013 have been called in question by the petitioner through this civil revision petition.
7. Learned counsel for the petitioner contends that the trial court did not evaluate the evidence properly, as the strained relations of petitioner with respondent No,3 were completely misread and non-read; that the father could not sell the property of his minor without obtaining the legal authority; that the sale amount was not spent in the benefit of the minor; that the petitioner was not in the knowledge that his father had sold his valuable land during his minority.
8. Conversely, the respondents, while defending the judgments and decrees of the lower fora, stressed that the same were passed in accordance with law. He mainly agitated that father, being natural guardian, has all powers to act on behalf of his minor without any express authority.
9. I have heard learned counsel for the parties and have minutely perused the record with their able assistance.
10. The moot point involved in the lis is that can a father without any express authority alienate the property of the minor?. To answer this query, this Court has to examine first the related law and legal dictum on the subject. Section 11 of Contract Act, 1872 is reproduced as under:-- "Who are competent to contract. -Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject".
' Contrary to the above clause, there are exceptions that when the property of a person, who is not attaining the age of majority, can be alienated through his guardian. Paragraph Nos,359, 360 and 361 of D.F. Mullah's Muhammadan Law, are relevant, therefore, same are reproduced as under:-- "359. Legal Guardian of property. -The following persons are entitled in the order mentioned below to be 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.
360. Guardian of property appointed by Court. In default of the legal guardians mentioned 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".
361. Defacto guardian.A person may neither be a legal guardian (S.359) nor a guardian appointed by the Court (S.360), but may have voluntarily placed himself in charge 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".
From browsing and careful perusal with reference to the clause of referred law and quotation, I have opined in respect of the evidence produced that competence of father on behalf of minor cannot be questioned until and unless the same is found against the interest of the minor. In the lis in hand, initially the subject-matter of the suit property was alienated through Exh.D.1 (gift deed) in favour of petitioner. Admittedly, at that time, the petitioner was minor and the possession even after alienation remained with the father/respondent No,3. I may refer the case-law reported as Muhammad Mursaleen v. Syed Noor Muhammad Hussaini (PLD 1968 Karachi 163), whereby, the competence of the father entering into a contract on behalf of his minor, was examined and the ratio decidendi is that the benefit of minor has to be viewed as a paramount consideration. Further surveillance with reference to the proposition in hand, I have found relevancy on the subject- matter through citation reported as Barkat Ali v. Aftab Ahmad (1992 CLC 1490). The relevant extract is reproduced as under:--- "6. The crux of the matter lies in the enunciation of Muslim Law, whether the father as such and being the natural guardian of the minor plaintiff could have sold the property on his behalf. Land measuring 28 Kanals and 10 Marlas was sold by Noor Ahmad and Sultan Ahmad including 1/3rd share of the plaintiff-respondent for Rs, 5,000/-. The share of the petitioner was, therefore, not more than Rs,2,000/-. Lands in the village were sold vide documents (Exhs. D.10, 11, 12 and 13) and as correctly brought out by the learned Additional District Judge, the sale price was from Rs, 106 to Rs,140 pr Kanal while the suit land was sold at the rate of Rs,165 per Kanal. It, therefore, cannot be said that the suit land was just thrown away. Should in such circumstances the principle that doubt the price of the market value had not been obtained, so that transaction could not be held to be legal and valid strictly appealed? It was also argued by the learned counsel that this enunciation of obtaining double the price than the market value to make a transaction valid on behalf of the minor, entered into on his behalf by his natural guardian i,e, the father, was not based upon any authentic text i,e, the Holy Qur'an or the Sunnah of the Holy Prophet (peace be upon him) the primary sources of Muslim Law. I am inclined to agree with him. He referred to Muhammadan Law by Syea Amir Ali Vol II of 1965 Edition published by All Pakistan Legal Decisions, Nabha Road, Lahore where at page 503 the principle deduced is that natural guardian may sell the immovable property to a transfer for double its value or where it is to the manifest advantage of the ward. As discussed and concluded above, the family had sold away their property including the house at Sharqpur, had permanently shifted to Gujranwala Bungalow No,45-A, Satellite Town over there in which as per the representation made in the registered sale-deed (Exh.D. 5) the plaintiff-respondent had a share and the money raised by the sale had been spent thereon. It was, therefore, clearly an act of good management and of manifest benefit to the plaintiff.
Learned counsel for the petitioner further relied upon Fatawa Alamgiri Vol. 4 published by Sh.
Ghulam Ali-and Sons, Kashmiri Bazar, Lahore (p.554), the principle of Islamic Law enunciated is that sale by father at the market price (Misl Qeemat), the father being of good reputation/character was valid. The principle has been extended to say that the sale would also be valid if it is also for the benefit of the minor. 1 would, therefore, not approve the enunciation that to make the sale of immovable property by father on behalf of his ward valid, double the price is a must, rather the father being of good character and reputation, the transaction entered into by him on behalf of his ward would not be invalid if the market price has been obtained or it is for the manifest advantage of the ward or as an act of good management".
In another citation, titled Manzoor Hussain and others v. Bhole Khan and others (1991 CLC 640), the powers of alienation of property of minor elucidated with regard to the distinguished facts of the de facto and de jure guardian, where certain conditions were laid down in Muslim Law that when a legal guardian sells an immovable property of his ward/minor:--
(1) Where he can obtain double its value;
(2) Where the minor had no other property, and the sale is necessary for his maintenance;
(3) Where there are debts of the deceased, and no other means of paying them;
(4) Where there are legacies to be paid, and no other means of paying;
(5) Where the expenses exceed the income of the property;
(6) Where the property is falling into decay; and
(7) When the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution.
Macnaghten in Principles and Precedents of Mohammadan Law (at page 64) says:-- "14. A guardian is not at liberty to sell the immovable property of his word, except under seven circumstances, viz. 1st, where he can obtain double its value; 2ndly, where the minor has no other property, and the sale of its is absolutely necessary to his maintenance; 3rdly, where the late incumbent died in debt which cannot be liquidated but by the sale of such property; 4thly, where there are some general provisions in the will which cannot be carried into effect without such sale; Sthly, where the produce of the property is not sufficient to defray the expenses of keeping it; 6thly, where the property may be in danger of being destroyed; 7th, where it has been usurped, and the guardian has reason to fear that there is no chance of fair restitution".
Meaning thereby, that every contract on behalf of minor, must be for the benefit of the minor. The significant principle settled with reference to the proposition, in hand, is that a legal guardian can sell the immovable property of the minor, when he fulfills the requirements as envisaged above.
' In paragraphs 270 to 272 of Mahomedan Law by Faiz Badruddin Tyabji, the question was dealt with the similar terms. Paragraph No,270 reads:-- "A guardian of the property of a ward is bound to deal with it as carefully as a man of ordinary prudence would deal with it, if it were his own and, subject to the provisions of Chapter III of the Guardians and Wards Act, he may do all acts which are reasonable and proper for the realization, protection or benefit of the property."
11. While dealing with the above query, whether a father/legal guardian without any express authority can alienate the property of minor/ward?. The answer is in affirmative, but with the restrictions mentioned supra. The reference i,e, Ghulam Nabi v. Faisal Naveed and 2 others 2003 SCMR 1794 quoted by counsel for the petitioner having distinct features, as in this case, the guardian already appointed by Court and sale was made without seeking permission of the Court.
Therefore, the leave declining order is far away from the proposition discussed above.
12. After having stated the principles settled for the case, in hand, I now revert to the facts of the case again, whereby defendant No,3, who is real father of plaintiff, executed a document of sale in favour of respondents Nos, 1 and 2 through Exh.D.8 with a sale price of Rs,18,00,000 (rupees eighteen lacs only). This transaction can be examined on the touchstone of the above settled principles that earlier a sale deed was also executed on behalf of the minor by respondent No,3 on 25.08.2003 (Exh.D.6), where a registered sale deed measuring 9 kanals, in favour of Gulnoor Cotton Mill was executed by respondent No,3, with sale price of Rs,9,00,000. Meaning thereby that per kanals rate is Rs,1,00,000 and with comparison of the sale in question, when examined, it is found that an almost double amount of the value possessed by the petitioner through Exh.D-8. It is also worth mentioning that the assertion of the petitioner that he had some dispute with his father/respondent No,3, was also not convincing, as the transaction of said property initially through gift deed (Exh.D.1) executed on 03.02.1993 and thereafter the other properties, which were alienated as Exh.D.2, Exh.D.3, Exh.D.4 and Exh.D.5, shows that love and affection between the father and the son remained continued and this was later on developed in another reciprocal transaction (Exh.D.7), where the son gifted his property to his father. This transaction of gift deed (Exh.D.7), executed on 24-11-2005, was also available on the record, whereby the petitioner transacted the land measuring 8 kanals, 9 marlas, to his father through gift deed dated 24.11.2005 This continuous alienation and reversion in favour of each other i,e, father and the son, confirms that the father and son having cordial relation and the father purchased the properties and then sold the same for deriving the extra benefit of his minor son as and when required. Respondent No,3/father alienated the various properties of his minor son in the same capacity, as it was sold to respondents Nos,1 and 2. Therefore the land sold by the father in the capacity of legal natural guardian/respondent No,3 cannot be presumed that it is executed against the benefit and interest of the minor.
13. In view of the aforesaid discussion, the impugned decision is rendered by the learned trial court, as well as, learned appellate court, are based on sound and legal principles of law and facts.
Hence, same are upheld and the revision petition of the petitioner, who failed to address any illegality and irregularity in the impugned judgments and decrees, is declared as meritless and therefore the same is dismissed with no order as to costs.