IJAZ ANW AR, J. Through this single judgment I intend to dispose of the following three regular first appeals being the outcome of one and the same judgment and decree dated 27.9.2012, passed by the learned Judicial Magistrate-II, D.I. Khan in Suit No. 13/1 (Neem) 2012.
1. R.F.A.No.74 -D/2017 .
(Mian Din Muhammad and others v . Mst. Zaitoon and others).
2. R.F.A. No. 76 -D/2017 .
(Mst. Zaitoon v . Mian Din Muhammad and others).
3. R.F.A.No.68 -D/2017 .
(Mst. Bakhtawaray Bibi through LRs and others v . Mst. Zaitoon and others).
2. Brief facts of the case are that respondent No.1/plaintif f Mst. Zaitoon (the sister) brought a suit against the appellants/defendants Mian Din Muhamm ad etc and proforma respondents for possession of her 1/9 share through partition in respect of properties, fully described in the heading of the plaint. She also sought declaration to the effect that the will deed dated 25.01.1976 and gift deed dated 12.02.1977 along with other deeds, mentioned in the heading of the plaint, are wrong, void, fictitious, bogus, against the law, based on fraud, ineffective upon her rights and are the result of collusion, therefore, liable to be cancelled. She also sought permanent injunction restraining the defendants from claiming ownership of legacy of her father namely Mian Bashir-ud-Din to the extent of her share.
3. On appearance, the appellants and proforma respondents contested the suit by filing their written statements.
From the divergent pleadings of the parties issues were framed. Pro and contra evidence was recorded and after hearing arguments, the learned Judicial Magistrate-II, D.I.Khan passed the impugned preliminary decree dated 27.9.2012 in the following terms:- "As a sequel of my above findings, plaintif f being legal heir of late Mian Bashir -ud-D in as well as Mst. Rashidan Bibi is entitled to her shari share along with other legal heirs in their legacies and prelim inary decree for partition of the legacy of Mian Bashir -ud -Din and Mst. Rashidan Bibi is passed and the plaintiff and all the legal heirs are entitled to their shari shares in their legacies, while the claim of the plaintiff over the mesne profit is turned down."
4. In R.F.A. No.74-D of 2017, appellants Nos.1 and 2 are the sons of late Mian Bashir-ud-Din, appellant No.3 is the son of late Muhammad Iqbal, appellants Nos.4 and 5 are the sons of appellant No.1 while appellants Nos.6 and 7 are the sons of appellant No.2. They have challenged the impugned judgment and decree in toto.
5. In R.F.A. No.76-D of 2017, appellant Mst. Zaitoon is the plaintif f before the learned Civil Judge in whose favour decree has been granted. She has questioned the findings on issues Nos.8, 9 and 10, whereby the defendants Nos.22 to 25 of the suit were declared as bona fide purchasers and their rights were protected under section 41 of the Transfer of Property Act, 1882.
6. Though in the impugned judgment and decree of the learned trial Court the rights of the alleged bona fide purchasers have been protected, yet vide R. F.A. No.68-D/2017, the appellants have impugned the judgment and decree of the learned trial Court, whereby preliminary decree has been passed in favour of plaintif f Mst. Zaitoon Bibi.
7. Learned counsel for the appellants (the male legal heirs) in R.F.A. No.74-D/2017 argued that in the written statement a specific plea was taken regarding will deed dated 05th January , 1976 from their predecessor Bashir- ud-Din in favour of the sons, however , it was discarded without any valid reason. Learned counsel further argued that one of the legal heirs (deceased Mst. Wahidan) had filed a Civil Suit No.61/1 on 22nd March, 1977 titled "Mst.
Wahidan v. Mst. Rashidan etc" which was decided on 10th of June, 1978, therefore, she should not have been allowed any share as, to her extent, the matter was past and closed transaction but the learned Civil Judge did not consider the effect of the decided case. Learned counsel further argued that there is a gift deed dated 12.02.1977, duly executed by the plaintif f in favour of her brothers and in the presence of such deed the plaintif f Mst. Zaitoon was having no right whatsoever and was estopped by her conduct to bring the suit. Learned counsel for the appellants argued that the execution of gift deed by the plaintif f Mst. Zaitoon was not accepted by the learned trial Court considering her age as 13.10.1962 while the photocopy of the passport of late Bashir-ud-Din produced without any objection by the appellants showed the age of Mst. Zaitoon as 1955, but the trial Court failed to consider this aspect of the case and held her as minor at the time of execution of gift deed.
8. Learned counsel representing the respondents Nos.17, 18, 20 and 22 to 25 (the alleged bona fide purchasers) besides arguing their own appeals also argued that they purchased the suit shops/property through different deeds from an ostensible owner and have committed no fraud, therefore, their interest was rightly protected by the learned trial Court in its judgment. It is argued that being bona fide purchaser for value, their interest and rights are otherwise protected under section 41 of the Transfer of Property Act, 1882. Placed reliance on 1995 SCMR 266 and 2009 SCMR 589. It was also argued that under Order XLI Rule 31, C.P.C., this Court being appellate forum has ample power to further protect the rights of the respondents-having duly purchased the suit shops.
9. Learned counsel for the added respondent namely Mian Muhammad Umair , impleaded in the appeal vide order dated 22.5.2017, argued that his client being necessary party should have been impleaded, so that he could have protected his interest. He argued that in such eventuality , it is necessary that the judgments and orders be set aside and the case be remanded for impleading the added respondent as defendant. He referred to the mandatory provision of Order XX, Rule 18 of the Civil Procedure Code and placed reliance on 1990 CLC 1205 , PLD 2003 SC 818, 1997 SCMR 643 and PLD 1973 Note 13.
10. Learned counsel, representing the plaintiff/respondent Mst. Zaitoon Bibi, argued that under the Islamic Law, will in favour of legal heirs is not valid unless other heirs consent to such will. It is argued that the execution of the gift deed was attributed to Mst. Zaitoon Bibi, while at the relevant time she was minor and such gift has no legal value, besides, execution of any such gift deed from a parda nashin lady could not be given effect too and it required strict proof. Learned counsel referred to the heading of the suit relied upon by the appe llants decided in the year 1978 showing Mst. Zaitoon Bibi as minor . Learned counsel questioned the decision of the learned trial Court on issues Nos.9 and 10 on the ground that while protecting the sale deeds, whereby the appellants have sold out different properties, nothing would be left for execution at the final decree. It is argued that where the appellants were not the owners and have malafidely sold out these shops/ properties, no protection can be given to such transaction.
Similarly , learned counsel also questioned the judgment to the extent of denying Mst. Zaitoon mesne profit and argued that no reason whatsoever has been mentioned whereby the mesne profit enjoyed by the appellants for the last about 40 years have been denied to the respondent/plaintif f.
11. In rebuttal, the learned counsel representing the appellants invited the attention of this Court towards the impugned judgments and decrees and argued that the same were without jurisdiction as all the proceedings were conducted by the learned Judicial Magis trate and not by Civil Judge as required under the law, therefore, the judgments and decrees are without jurisdiction and liable to be set aside on this score alone.
12. Arguments heard and record perused.
13. The appellants (male co-owners) are claiming their rights over the suit property on the basis of an alleged will deed dated 25.01.1976 given by their predecessor in their favour and secondly a gift deed dated 12.02.1977 (Ex.DW -6/3) attributed to female legal heirs including Mst. Zaitoon Bibi. Under the Islamic law Right of Bequest/will cannot be allowed to be exercised to the detriment of the rights of other legal heirs, besides this deed has also not been proved. The only marginal witness of the will deed namely Kalu Khan when appeared as a witness of document showed his total unawareness about the contents/detail of the will deed. He even was unaware about the time, date and year of writing of the deed, hence, it cannot be relied upon. Similarly , execution of will deed is highly doubtful as the alleged thumb impression of Mian Bashir-ud-Din (late) on the will deed was not proved.
14. The learned Civil Judge has aptly dealt with the question about the proof or otherwise of the will deed. Besides such a document that deprives females of their rights are to be construed strictly as thereby a God bestowed right is going to be denied to them.
15. So far as the gift deed dated 12.02.1977 is concerned, it was got executed at the time when Mst. Zaitoon Bibi was minor . The record suggests the date of birth of Mst. Zaitoon as 13.10.1962, while the execution of gift deed was attributed to her in the year 1977. Similarly , the suit filed by Mst. Wahidan on 22.3.1977 also depicted Mst.
Zaitoon as minor at the relevant time, thus when it is established that Mst. Zaitoon was minor at the time of execution of the gift deed, such document lost its ef ficacy and was rightly discarded by the learned Civil Judge.
16. In the case of " Abdul Rehman and 2 others v . Zainab Bibi" (2010 MLD 978 [Lahore]), it is held as under:- "(c) Islamic law--- ----Gift--Authenticity of gift transaction---Where disputed gift transaction disinherited a female who had no independent legal advice or the support of her male relatives, transaction in question could not be given effect to."
17. Regarding the alleged documents i.e. will deed and gift deed on the basis of which the male legal heirs have sold some of the suit property to the alleged bona fide purchaser , it may be noted that Mst.Zaitoon (the sister) became the owner of the suit property immediately after the death of her father and the appellant (Mst. Zaitoon) was also entitled to the left over property of her father as she became co-sharer on her father's death. She was co- owner of the property to the extent of her share for all intent and purposes. It is also established principle of law that a co-owner is not entitled to alienate more than his entitlement as held by the apex Court in "Rab Nawaz and another v . Akbar Ali and others" (1989 SCMR 93 ).
18. In the case of "Ali Gohar v. Sher Ayaz" (1989 SCMR 130), it is held that "Each co-owner is deemed to be owner in the joint property and any one of them cannot act in manner which may constitute an invasion on the rights of other co-sharer ." Similarly , the august Supreme Court has set certain guiding principles while interpreting section 41 of the Transfer of Property Act, 1882. In the case of "Muhammad Hussain v. Wahid Bakhsh (2004 SCMR 1137), it was held that "the general principle of law of transfer of property is enumerated by the maxim that no man can transfer to another or can confer a right or title greater or higher than what he himself possesses and he gives not who hath not" . In the case of "Muhammad Shamim through legal heirs v. Nasir Fatima through legal heirs and others" (2010 SCMR 18), while discussing similar situation where the brothers have alienated the property falling to the share of their sister , it has been held that "Moreover , whereas the principle that an innocent buyer should not suffer for the fraud practiced by the seller; the doctrine of Caveat emptor i.e. let the buyer beware, that the purchaser has only himself to be blamed if he is wronged, due to his fault also has to be kept in view. It is also well-established that a vendor cannot pass on to the vendee anything better than he himself holds. Therefore, it is the vendee who is to apply maximum care before going for a transaction of sale/purchase. His right/title being dependent upon the strength or weakness of the title of the seller , he is to sail, swim and sink with the seller , and to pursue him for any loss suffered if he is ultimately the loser ."
19. In order to find the role of bona fide purchaser as engrained in section 41 of the Transfer of Property Act, 1882 reproduction of this section will be relevant, which reads as under:- "41. Transfer by ostensible owner . Where, with the consent, express or implied, of the persons interested in immovable property , a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it; provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer , has acted in good faith."
20. The august Supreme Court of Pakistan in the case of "Ghulam Rasool and others v. Noor Muhammad and others" (2017 SCMR 81 ), while discussing the case of an alleged bona fide purchaser observed as under:- "If the purchaser has taken reasonable case in going into the genesis of the owne rship, and examining the record in depth, which they as purchasers are required to do so, they would have found out that the property being an inherited property was originally owned by the father of the plaintiff and defendants which devolves upon his legal heirs i.e. four brothers jointly; and that all four brothers shall continue to be the owner of the property and the exclusion of the name of the plaintiff from the revenue record was not on account of any legal or authorized transaction or mode, both from a human error or because for some tainted reasons--Unauthorized sale to the extent of plaintiff's share in the suit property was void and the case of the purchaser did not squarely qualify the test of section 41 and, therefore, he could not take up the plea of bona fide purchaser and the sale could not be protected on such account."
21. In the case of "Muhammad lqbal and others v. Khairud din through LRs and others" (2014 SCMR 33), the apex Court underlining the same principl e held that "The essential ingredients for invoking section 41 ibid can be described as (1) that the transferor was the ostensible owner , (2) that the transfer was made by consent of the real owner , (3) that such transfer was for a consideration, and (4) that the transferee while acting in good faith had taken reasonable care before entering into the transaction."
22. Similarly , one of the alleged bona fide purchaser is seeking protection of a transaction made through an ex parte decree from the brothers of the appellant (Mst. Zaitoon). The apex Court while dealing with similar situation in the case of " Muhammad lqbal and others (supra), has not protected even consent decree.
23. Thus, keeping in view the circumstances of the case and after seeking guidance of the judgments of the apex Court, I feel that the protection given to the transaction made in favour of the alleged bona fide purchaser by the trial Court is against the law and veste d rights of other legal heirs who never consented to such transaction.
Therefore, any transaction made by the brothers of Mst. Zaitoon Bibi and legal heirs of Bashir-ud-Din (late) beyond their share (entitlement) is void and inef fective upon the rights of other legal heirs and cannot be protected.
24. The judgment and decree passed by the learned Judicial Magistrate has been stressed with vehemence, as such that point is taken. Perusal of the impugned judgment would reveal that the learned Civil Judge while passing the judgment has written down his nomenclature as Judicial Magistrate-II, D.I.Khan who in the first instance give an impression as if he is not empowered to decide civil cases. However , during the course of arguments it transpired that this and some other cases were specifically entrusted to the learned Judicial Magistrate-II, D.I.Khan under the orders of Honourable Peshawar High Court Peshawar . The entrustment orders dated 15.10.201 1 of the Peshawar High Court and 18.10.201 1 of the learned District and Sessions Judge, D.I.Khan are placed on file which sufficiently address the objection so raised. Besides, such irregularity is curable under section 99 of the Civil Procedure Code, 1908. The same is reproduced for ready reference:- "99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action of any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court".
The aim of this section is to prevent the technicalities from defeating the ends of justice and that the Court should lean in favour of adjudication on merit. Thus, merely referring his nomenclature as Judicial Magistrate would in no way effect the merit of the case or the jurisdiction of the Court. The entrustment of the case was in view of the latest judicial policy .
25. For what has been stated above, R.F.A. No.74-D/2017 titled "Mian Din Muhammad and others v. Mst.
Zaitoon and others " is dismissed, R.F.A. No.76-D/ 2017 titled "Mst. Zaitoon v. Mian Din Muhammad and others " is partially allowed only to the extent that issues Nos.8, 9 and 10 are decided in favour of the appellant while R.F.A. No.68-D/2017 titled "Mst. Bakhtawaray Bibi through LRs and others v. Mst. Zaitoon and others " is disposed of accordingly .