FAHIM AHMED SIDDIQUI, J.---The applicant' is the original private defendant and the respondent No,1 is the original plaintiff of the Suit No,49/2009, decided before the lower forum.
2. The respondent No, 1 filed a suit for declaration, possession and permanent injunction about suit land bearing Survey No,485/2, admeasuring 1-24 acre situated in deh Kandi Chukhi, Taluka K.N.
Shah which was the property of one Gul Muhammad Chandio. As per plaint, the said Gul Muhammad Chandio had three daughters namely, Mst. Chagi, Mst. Qaim Khatoon and Mst. Saen (mother of the respondent No,1). Mst. Chagi and Mst. Qaim Khatoon died issueless, and their shares were also devolved in Mst. Saen. After the death of Mst. Saen, plaintiff being her daughter inherited the suit property, and she was in possession and enjoyment of the same. The applicant (original private defendant) claimed to be peasant/ farmer and used to cultivate the suit land for the respondent No,1 (original plaintiff) on the land-owner share basis and paid the share of land- owner to her regularly. In the crop season of 2009, the applicant (original private defendant) refused to give her share on the pretext that his father had purchased the suit laud. The respondent No,1 (original plaintiff) rushed to the concerned Mukhtiarkar and came to know that the applicant (original private defendant) fraudulently managed registered sale deed dated 08.06.1946 along with entry Nos,39 and 42. and subsequent entries.
3. The applicant in written statement denied the averment of the plaint and denied allegations levelled against him in the same. After framing issues, the trial Court proceeded with the suit and after recording evidence, the trial Court dismissed the suit filed by the respondent No,l. The respondent No,1 challenged the verdict of trial Court before appellate forum where she succeeded, and after setting-aside the judgment and decree of the trial Court, the suit of respondent No,1 was decreed as prayed.
4. I have heard the arguments advanced by the learned counsel for the applicant. According to him, the suit land was initially belonged to Gul Muhammad and after his death, his wife and three daughters sold out the said property to the father of applicant. He drew the attention of the Court towards the deposition of respondent No,1 (plaintiff) in which she admitted about her siblings. He submitted that the suit filed by the respondent No,1 is hit by finis-joinder and non-joinder of parties because of non-joining of siblings of the respondent No,1 in the suit. He submitted that the appellate Court has given undue weight to the fact that at the time of sale, two girls were minors and 'Tapedar' in his deposition stated that half of the property belonged to Hindus. According to him, even if the two' girls were minors, the sale by their mother on their behalf is valid as they never made any adverse claim regarding the property in their lifetime. He pointed out that although two girls of late Gul Muhammad were minors and one girl and the widow of deceassed being major were capable of entering into an agreement. He submitted that the property is in possession of the applicant since long and the alleged sale deed was executed in 1946, as such the suit is time barred. He took reliance on the following case laws.
(a) Misri and others v. Muhammad Sharif and others (1997 SCMR 338)
(b) Zardad Khan v. Mst. Safia Begum (1998 CLC 2006)
(c) Muhammad Hayat and 38 others v. Abdul Rahim and 24 others (2001 MLD 1524)
(d) Khalil Rehman Ayub and others v. Mrs Syeda Yasmeen Zaidi (PLD 2008 Karachi 388)
(c) Faiz Muhammad and others v. Mst. Khursheed Bibi (PLD 2009 Lahore 41)
5. The learned counsel for the respondent No,1, while supporting the impugned judgment of the appellate Court, submitted that the respondent No,1 came to know about the alleged sale deed and subsequent entry in record in the year 2009, and the limitation will run from the date of knowledge; therefore, suit is within time. According to her, this land was in constructive possession of the respondent No,1 till 2008 as the applicant had been regularly paying the share of the owner of land at the time of harvesting. She submitted that in the year 2009, he stopped payment of share by falsely claiming ownership and then the respondent No,1 filed suit. She further contended that the mother of the respondent No,1 did not require to raise any objection as during her lifetime no claim of ownership was preferred by the applicant or his father. According to her, the sale deed is false as well as the entries in the records are also managed one. She submitted that at the time of the alleged sale deed, the two daughters of Gut Muhammad were minors and without the permission of the Court, a sale on behalf of minors is illegal and void. She submitted that the property remained in the name of the mother of respondent No,1 and false entries were shown to be kept in Foti-Khata.
6. I have perused the judgment and order of the trial Court is as the appellate Court. To decide the controversy, it will he need the into consideration the provision of the Guardians and Wards Act 1890. As per Section 29 of the Guardian and Ward Act no charge transfer, sale, gift, exchange, etc. of immovable property of the ward can be made by a duly appointed guardian without the permission of the Court. It is also mentioned in Section 30 of the Guardians and Wards Act that a sale shall not be completed without the sanction of the Court. From the aforesaid provisions of law, it is crystal clear that without invoking procedure provided within the Guardians and Wards Act, no sale can be effected on behalf of minors. The learned counsel for the applicant, in response to a query, admitted that the two girls were minors in 1946 and no guardian was appointed by the Court. It is admitted position that the mother of respondent No,1 was a minor in the year 1946 and the jurisdiction of Guardian Court was not invoked for the appointment of Guardian, as such the said sale itself questionable. It is well settled that a conveyance of immovable property by a de facto guardian of a Muslim minor is void and is not binding on the minor. Under the Mahomedan law, a mother of a minor is not his legal guardian, and she will have no power to act on behalf of the minor and make a valid conveyance of his/ her property. This has been held by the Privy Council about a hundred years ago in a case reported as Imambandi v. Mutsadd (AIR 1918 PC 11).
7. In the present case, two of the sisters were admittedly minors while one of them was major and the mother also enjoyed a share in the property as the widow of late Gul Muhammad (the father of the mother of respondent No,1). Now the question is where a conveyance is effected by three or four persons of whom one or more is a minor represented by his de facto guardian and the conveyance is void in so far as it affected the minor or minors, could it be held that the sale is void as against the other executants as well who were sui juris and competent to make a conveyance of their shares in the immovable property? In this respect, I am of the view that if the conveyance is void qua the minor represented by the de facto guardian, it is void as a whole. A void contract is entirely void, and if a part of it has no effect, the other part cannot stand by itself and be operative.
In support of this proposition, I rely on Pratap Singh v, Sant Kaur (AIR 1938 PC 181), wherein the Privy Council held that where an agreement was entered into with two sisters one of whom was represented by a guardian who was neither appointed by the Court nor could claim to be her guardian under her personal law, the agreement was void not only against the minor but was only unenforceable against her elder sister, who was a major. The Privy Council observed: "The rule of, law is firmly established that a minor is not competent to make a contract, and as Gujar Singh had no authority to enter into a contract on her behalf, the deed of settlement must be held to be a void transaction as against her".
In the case of Partap Singh (supra), it was argued before the Privy Council that the transaction should be upheld as a family settlement, but the said contention was rejected by pointing it out that by describing the contract as a family settlement the parties could not claim an exemption from the law governing a person to make a valid contract.
8. In the instant matter, the learned counsel for the applicant has argued that no objection was raised by the mother of the respondent No,1 during her lifetime as such now an objection from respondent No,1 is not considerable. I am of the view that such contention of the learned counsel for the applicant is also not substantial and cannot be considerable. It is settled law that the agreement by a person of infirmity due to lunacy or juvenility is void ab initio and having no worth in the eyes of law. Even an agreement, which is void ab initio cannot be rectified by the minor after attaining the age of majority. In this respect, I would like to take reliance from the case of Honourable Supreme Court reported as the Chairman, District Screening Commitee Lahore v. Sharif Ahmad Hashmi (PLD 1976 SC 258), in which it is laid down that an agreement by a person under a legal disability e.g. a minor or insanity was void ab initio and was incapable of rectification or confirmation. As such it can be safely said that law forbids a transaction by the minor even if the minor ratified the same after attaining the age of majority, the said transaction would have no worth in the eyes of law.
9. As far as, the contention of the learned counsel for the applicant is concerned regarding the delay, in this respect, my observation is that the respondent No,1 claimed that, it had come into her knowledge in the year 2009 when applicant refused to give the share in the produce of his land. I have scanned the entire available record and found that the applicant could not establish that the respondent No,1 was in the knowledge of the alleged transaction before that date. Besides, for a void document, the question of limitation does not arise, and the same does not specifically require cancellation. In the eyes of law, the status of a void document is not more than a useless bit of paper. In this respect, reliance may be taken from the case reported as Abdul Rasheed Khan through LRs and others v. Safdar Ali through LRs and others (2016 'YLR 2575).
10.It is the claim of the appellant that the land was ,sold out to the father of applicant in the year 1946 through a registered sale deed but it was not mutated. It is indeed not comprehending that the property was purchased in 1946, but the Foti-Khata was changed in the name of the mother of respondent No,1 and her three aunts in 1975. The applicant has admitted this fact during cross- examination in the following words, "It is correct that entry No, 86 of Pher Phar register in favour of Mst. Changi, Mst. Qaim Khatoon and Mst. Sain all three daughters of Gul Muhammad was kept on 08.08.1975."
From these words of the applicant, it clarifies that the entries were kept in the record in the name of legal heirs of the original owner of the land Mr. Gul Muhammad in the year 1975, which indicates that the land in question was at least in the name of the legal heirs till the end of 1975. This fact is sufficient to fortify the claim of the respondent that the land belongs to her mother and she remained enjoying ownership rights in her lifetime. It is also surprising that the applicant during cross-examination has not only disclosed the entry number placed in the names of the predecessor in interest of the respondent No,1 but also mentioned the exact date of the entry but in response to a consecutive question, he said that he did not remember the entry number kept in his father's name. I am of the view that the admitted fact of placement of entry in the names of the legal heirs of the original owner long after the execution of the alleged sale deed, purported to be executed in 1946, is sufficient to declare the sale deed as highly dubious document.
11.Another aspect of the case is important. It is alleged by the applicant that the grandmother of the respondent No,1 entered into an agreement of sale on her behalf and on behalf of her one major and two minor daughters with the applicant's father and the said transaction was trader a registered document. It has come on the record that the original sale deed is not available and the same was not produced before the trial court. A certified Copy of the said document was produced before the trial Court but without fulfilling the requirements of the admissibility of secondary evidence. No doubt under Article 100 of the. Qanun-e-Shahadat a sanctity is attached to a 30 years or more old registered document but whenever the clouds thrown on it by or on behalf of the executant then the beneficiary of the said document is obliged to establish the same as per rules of evidence. After denial by the respondent No,1 regarding execution of such document, onus to prove it heavily shifted on the shoulders of the applicant, who was beneficiary of this transaction, as per law laid down by the honourable Supreme Court in the cases reported as Janat Bibi v. Sikandar Ali and others (PLD 1990 SC 642), Hakim Khan v. Nazeer Ahmad Lughmani and 10 others (1992 SCMR 1832), Sana Ullah and another v. Muhammad Manzoor and another (PLD 1996 SC 256), Muhammad v. Mst. Rehmon through Mst. Sharifan Bibi (1998 SCMR 1354) and Mst.
Rasheeda Begum and 3 others v. Muhammad Yousaf and others ( 2002 SCMR 1089).
The learned counsel for the applicant relied upon the teaming number of case laws but amongst them none is helpful for him rather they refute the stance taken by the applicant. In the case reported as Misri and others v. Muhammad Sharif and others (1997 SCMR 338), it is held that once entry in revenue record was proved, to be illegal, previous entry would be deemed to stand, inasmuch as, an entry would subsist till new one was lawfully substituted for it. Relying on the said case law, it can be said that as the base document in favour of applicant could not be established, hence any entry in the record on the basis of the same is not valid and lawful in the eyes of law.
Similarly, in the case reported as Zardad Khan v. Mst. Saila Begum (1998 CLC 2006) relied by the learned counsel for the applicant, it is held as under: "Any mutation which had created right, even though acted upon, would not become legal unless the same was tested on basis of other surrounding circumstances particularly when alleged executant disowned its existence and had challenged the same on grounds of collusion and fraud."
It is a fact that an entry in the revenue record if disputed by the original owner then the person seeking benefit under the same would not be absolved of his duty to prove the transaction. This principle is discussed in detailed in the case reported as Muhammad Hayat and 38 others v. Abdul Rahim and 24 others (2001 MLD 1524) and it is calamitous for the applicant that he could not discharge his duty to prove the transaction on which he relies for seeking benefit regarding the property in question.
13. In view of what has been discussed above, this Civil Revision is dismissed, there is no need to interfere in the judgment of lower appellate forum which is maintained.