' This petition has called in question the judgment and decree dated 1-11-1978 whereby the learned District Judge, Gujranwala dismissed the appeal and upheld the decree of the trial Court dated 29- 1-1977 declaring mutation of exchange void and inoperative against the ownership rights f the plaintiff-respondent.
2. In his suit for declaration Muhammad Zafar plaintiff-respondent claimed to be the sole heir of the deceased lunatic Muhammad Ali alias Ali muhammad. He contended that in the garb of offering the respondent financial help, Taj Din got an exchange of the lunatic's property attested his own name through mutation No,
173. On obtaining knowledge of the mutation the respondent made an appeal before the Collector but the me was forcibly got withdrawn. It was stated that the mutation was the suit of fraud and misrepresentation and withdrawal of the appeal was based on coercion and duress. He, therefore, maintained that the said change having taken place on behalf of the lunatic without the prior permission of the Court was void and inoperative against the proprietary rights. The suit was resisted inter alia on the ground that the exchange was order.
However, locus standi of the respondent to file the suit in the capacity of a guardian of the deceased was very seriously questioned and was averred that the plaintiff respondent was estopped as such from filing suit.
3. The learned trial Court decreed the suit holding that the mutation of exchange was of no legal effect. In appeal the learned District Judge endorsed the view of the trial Court and observed that the exchange having been made without the approval of the Court was illegal, and the respondent being an heir of the deceased lunatic was not estopped from filing the suit. The decree was appealed against.
4. It was contended on the basis of sections 29 and 30 of the Guardians and Wards Act (VIII of 1890) that the exchange without the prior permission of the Court was not void but voidable at the instance of any other person affected thereby. It is decided in Narsig Pracharya Gopalacharya Sharpati v. Tulsabhai Rambhai Dandavati (1) that the sale by the guardian continued to be a valid sale till it was set aside at the instance of the minor that the right of the minor to sue to get the unauthorised sale set aside could neither be attached nor sold in execution of a decree, and that therefore the auction-purchaser could not oust the vendee from the guardian even though the sale was not sanctioned by the Court. In this way, it was tried to show that the plaintiff who was acting as a guardian of the lunatic had no locus standi to file the suit and he could not assume the role of the lunatic and get the sale avoided. The provisions of section 43 of the Transfer of Property Act (IV of 1882) were also referred to for raising the contention that a transfer by an unauthorised person who subsequently acquired interest in property could not be called in question. Reliance was placed on Ziauddin Rafi v. Muhammad Khan and others (2), Mumtaz Sultana v. Settlement and Rehabilitation Commissioner (3) and S. Sibtain Fazli v. Star Film Distributors (4) to contend that principle of "feeding the estoppel" will operate on any interest that transferor may acquire subsequently. The law enunciated in this behalf does not apply to the instant case. As a matter of fact the relationship between the deceased lunatic and the plaintiff respondent was not that of the ward and the guardian under the Guardian and Wards Act, but it was that of a lunatic and the Manager appointed by the Court under the Lunacy Act (IV of 1912). Section 75(1) of the Act provides that every manager of the estate of a lunatic appointed as aforesaid may exercise the same powers in the management of the estate as might have been exercised by the proprietor if not a lunatic, and may collect and pay all just claims, debts and liabilities due to or by the estate of the lunatic : Provided that no manager so appointed shall without the permission of the Court (a) mostgage, charge or transfer by sale, gift, exchange or otherwise any immovable property of the lunatic, (b) lease any such property for a term exceeding five years. Such permission may be granted subject to any condition or restriction which the Court thinks fit to impose. It may be pointed out that there is no provision in the Act which may make such a sale voidable at the instance of any person. This much is however clear that an alienation which is not specifically permitted by the Court is verily against the statute and thus against law. According to section 23 of the Contract Act (IX of 1872) the consideration or object of an agreement is lawful unless it is forbidden, or is of such a nature that if permitted, it would defeat the provisions of any law, or is fraudulent. In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. It is, therefore, evident that the exchange was not voidable but void and could be challenged by any person, even by the plaintiff respondent who was said to be defrauded as a manager of the lunatic's property.
Even otherwise the capacity of the plaintiff changed to that of an heir of the lunatic and he having stepped into the shoes of his predecessor lunatic was competent to get the mutation declared void. The learned District Judge was, therefore, justified in bolding that since the plaintiff- respondent in the capacity of the sole heir of his ward after his death, was a person affected thereby, he was
(1) (1925) 28 B L R 483 (2) PLD 1962 Lah. 321
(3) PLD 1964 Lah. 388 (4) PLD 1964 SC 337 ' competent to challenge its validity and get it declared void. That being the position there could be no estoppel against law and the provisions of section 115 of the Evidence Act (I of 1872) and section 43 of the Transfer of Property Act are not attracted in this case.
5. Fraud, misrepresentation and coercion are questions of fact. On the basis of the statement of Mr. Azhar Hussain Zaidi, Advocate (P. W. 1) that the respondent was virtually in the custody of the appellant and his armed men and they did not permit the respondent to meet him, the learned District Judge observed that it was not possible to believe that the respondent swore affidavit and withdrew his appeal from the Collector's Court by his free consent. The defendant appellant could not, therefore, say that the so-called statement Exh. D. 3 and the consequent order Exh. D. 4 for the withdrawal of the appeal had the effect of creating an estoppel against the C respondent. Such a finding of fact is final in appeal and cannot be called in question at this stage.
' In view of what has been discussed above, there is no force in the petition and the same is dismissed with no order as to costs.