The petitioner namely Alam Sher in order to seek enforcement of an oral agreement to sell with regard to the suit property owned by Yasir Nawaz (respondent No.1) through his father Muhammad Nawaz (respondent No.2) instituted a suit for specific performance and injunction before the learned Civil Judge Class-I, Pakpattan Sharif. It is averred in the plaint that respondent No.2 being father of respondent No.1 agreed to sell the suit land to the petitioner in presence of witnesses with sale consideration of Rs.16,00,000/- out of which Rs.5,00,000/- were paid to him. In pursuance whereof, possession was also delivered to the petitioner . It was settled that respondent No.2 after obtaining a guardian certificate from the Court of competent jurisdiction will transfer the suit property in the name of petitioner but after passage of time, he refused to abide the commitm ent. Suit was resisted by the respondents, who submitted their joint written statement wherein they controverted the assertions contained in the plaint. From the divergent pleadings of the parties, learned trial court framed multiple issues. After recording of evidence of both the sides, suit was ultimately dismissed vide judgment and decree dated 30th July, 2019. The petitioner , feeling aggrieved though preferred an appeal before the learned Additional District Judge, Pakpattan Sharif, but his appeal was dismissed through judgment and decree dated 10th December , 2020, hence this petition under Section 1 15 of the code of civil Procedure (V of 1908) (hereinafter referred as "CPC").
2. Learned counsel for the petitioner contended that suit property was though owned by the minor but sale transaction was made by respondent No.2 being his father and natural guardian. It is maintained that possession of the suit property was also delivered to the petitioner in pursuance to the oral sale, which by itself is sufficient to establish the claim of the petitioner . Learned counsel emphasized that petitioner has been non-suited on extraneous grounds. He added that concurrent findings are the result of gross misreading and non-reading of evidence.
3. Heard. Record perused.
4. It is an admitted fact that suit property was owned by respondent No.1, who is the minor . An agreement is a promise or set of promises, forming the consideration for each other . Section 10 of the Contract Act, 1872 postulates that all agreements are contra cts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. In terms of Section 11 of the Act ibid 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. The respondent No.1 being the minor was thus not competent to enter into the contract. It is, however , claim of the petitioner that oral sale was entered into by the father of the minor on his behalf but it is not in dispute that though respondent No.2 was natural guardian of the minor nevertheless he was lacking any permission by the Court of competent jurisdiction to dispos e of the property of the minor . Section 11 of the Contract Act, 1872 for ready reference and convenience is reproduced below:- "11. 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."
5. Though it appears from the cursory glance of the above provision of law that minor is debarred to enter into a contract but at the same time Section 11 would not impair the rights and interest of the minor from acquiring title to anything valuable and he being beneficiary of agreement. In somewhat similar circumstances this Court in the case of MUHAMMAD ZOFIGAN vs MUHAMMAD KHAN and 49 others ( PLD 2004 Lahore 255 ) held as under:- "17. The question of minority of the appellant was concurrently settled by the learned Courts below and respondents also accepted that at the time of sale and sanctioning of mutation on 6-12-1972, the appellant was a minor and he thus was admittedly under a legal incapacity under section 11 of the Contract Act to enter into the sale transaction or consent to the sale on his behalf. At the time of the sale transaction, the appellant had not attained the age of 18 years to be sui-juris for validly entering into a sale contract. The sale transaction was thus void ab initio and the contract of sale had no legal existence. No rights or liabilities as claimed by the respondents arose from such a void transaction. The contract of sale was incapable of enforcement and could not even to set up as a valid defence plea to claim a right or title. The original purchasers thus had no title to pass to the subsequent vendees.
18. It is also well-settled that the protectio n under section 41 of the Transfer of Property Act is not extendable in the cases of transactions, which are void ab initio. The learned Additional District Judge thus not only misread and ignored the evidence on record but also misinterpreted and overlooked the express provisions of section 11 of the Contract Act, where-under the present sale was void for having been contracted during incapacity of the appellant.
The invalidity of transaction arose from a legal incapacity and was thus incurable. The sale was void and not voidable.
19. In a similar matter , an Hon'ble Divisio n Bench of this Court in the case of "Sher Baz Khan and 73 others v.
Mst. Malkani Sahibzadi Tiwana and 2 others" (PLD 1996 Lahore 483) dilated upon the applicable principles of law. It was adjudged that any contract or transaction entered into with a minor was void ab initio as a minor could not give consent to create a binding contract. And that the principle of estoppel was not attracted in the case of a minor wherefore vendees could not acquire a right or title under the void transaction. It was also observed that the natural guardian was competent to alienate the minor's property only if such alienation/sale, was in the interest of the minor as permissible under para. 362 of Muhammadan Law. And that nothing was brought on record to prove that the transaction in question was made by the appellant's father for the welfare of the minor and could be protected under any of the contingencies enumerated in the Muhammadan Law. The sales even if made by the natural guardian were invalid unless expressly proved to be for the benefit of the minor and the onus thereof was on the vendees to so prove.
20. In the present case, also, the respondents miserably failed to bring on record any evidence that the sale transaction and the mutation incorporating the same were made for the benefit or welfare of the minor . Peculiarly the respondents in this case canvassed a stand damaging to the interest, benefit and welfare of the minor appellant denying his title and by setting up a plea of ownership of suit-property in the father of the appellant."
6. Paragraph No.362 of the Principles of Muhammadan Law by D.F. Mulla' s also creates an exception to the principle embodied in Section 11 of the Contract Act, 1872, which is reproduced below for ready reference and convenience :- "362. Alienation of immovable property by legal guardian.-- A legal guardian of the property of a minor [S. 359] has no power to sell the immovable property of the minor except in the following cases, namely , (1) where he can obtain double its value; (2) where the minor has 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 them ; (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."
Legal guardians of the property of minor are mentioned in Paragraph No.359 in the following manner:- "359. Legal guardians 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 ."
After having an overview of the above referred provisions of law it can safely be inferred that a father being natural guardian can validly enter into an agreement to sell on behalf of his minor child unless the same is found adversarial to the interest of the minor .
7. Dealing with the subject this Court in the case of MANZOOR HUSSAIN and others vs BHOLE KHAN and others ( 1991 CLC 640 ) has laid down following guidelines :- "I shall first advert to the question about the powers of a legal guardian under Mahomedan Law to alienate immovable property of his ward. Distinguished from a de facto guardian, father is legal guardian of the property of his minor children and Mahomedan Law gives him power to alienate immovable property belonging to them in specified conditions. Power to alienate is neither absolute nor without fetters. Maho medan Law subjects this power to stringent conditions. Books on Muslim Law lay down that a legal guardian can sell the immovable property of his ward; (1) where he can obtain double its value; (2) where the minor has 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 them; (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. Apart from the above conditions, a legal guardian has no power to alienate immovable property of his ward. In para 90 of A Hand-Book of Mahomedan Law by Babu Ram V erma, the author observes:- "A legal guardian shall be entitled to exercise the following powers:-
(a) He may sell or mortgage immovable property of the minor in the following cases (but not in others):-
(i) where he can obtain double the value of the property;
(ii) where it is necessary to do so for the maintenance of the minor , the minor having no other property;
(iii) where debts are due from the decea sed person from whom the minor inherits the property and there are no means of paying them;
(iv) where there are legacies to be paid and there are no other means of paying them of f;
(v) where the expenses exceed the income of the property;
(vi) where the property is falling into decay;
(vii) where the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution.
(b) he may sell or pledge the movable property of the minor where there is imperative necessity , such as for food, clothing or nursing."
Macnaghten in Principles & Precedents of Mohammadan Law (at page 64) says:- "14. A guardian is not at liberty to sell the immovable property of his ward, 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 it 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; 5thly, 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; 7thly, where it has been usurped, and the guardian has reason to fear that there is no chance of fair restitution.
15. Every contract entered into by a near guardian on behalf and for the benefit of the minor , and every contract entered into by a minor with the advice and consent of his near guardian, as far as regards his personal property , is valid and binding upon him provided there be no circumvention or fraud on the face of it."
Asaf AA. Fyzee, in Outlines of Muhammadan Law (Fourth Edition) dealing with the powers of the legal guardian to sell immovable property of the minor says:- "In Sunnite law, the father is the guardian of the minor's property; failing him, in order of priority , the following are entitled:
(i) the father's executor (ii) the father's father; (iii) the paternal-grandfather's executor . These are the legal guardians of the property of the minor . It must be emphasised that the substantive law of Islam does not recognize any other relatives, such as the mother , the uncle or brother , as legal guardians, but they may be appointed by the Court."
As far the power of the legal guardian to alienate the immovable property of his ward, it is stated that:- "The legal guardian cannot sell the immovable property of the minor except where he can obtain double its value; or where it is necessary for the maintenance of the minor; or where there are debts and legacies to be paid, and there are no other means; or where the property is falling into decay ."
The question with regard to powers of guardian appointed by the Court is somewhat different. There the guardian derives his authority from the order of the Court appointing him.
Syed Ameer Ali after enumerating restrict ions put on the sale of immovable property of the minor by his guardian said:-
(c) He may also sell it when there are some general provisions in the wasiyet (will) of the testator , which cannot be carried into ef fect without the sale of the property .
(d) When the property is required to be sold for the purpose of paying off the debts of the testator , which cannot be liquidated in any other way .
(e) When the income accruing from the estate is not sufficient to defray the expenditure incurred in its management and the payment of the kharaj (land-revenue).
(f) When it is in imminent danger of being destroyed or lost by decay .
(g) When the minor has no other property , and the sale of it is absolutely necessary for his maintenance.
(h) When it is in the hands of a usurper , and the guardian has reason to fear there is no chance of restitution.
In other words, even a guardian de jure, like the father or his executor , cannot sell the immovable property of the minor without absolute necessity or unless it is to the manifest or evident advantage of the minor (emphasis supplied by me)."
Para 362 of Principles of Mahomedan law by D.F. Mulla laid down a similar princip le. In paragraphs 270 to 272 of Mahomedan Law by Faiz Badruddin Tyabji, the question was dealt with in similar terms. Paragraph 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 Guardia ns and Wards Act, he may do all acts which are reasonable and proper for the realization, protection or benefit of the property ."
Para 271 states:- "The guardian of the property of a minor may either exercise or refuse to exercise the right of pre-emption on behalf of the ward."
There is no dispute that pre-emption is a mode for fresh acquisition of immova ble property and could not be equated with its sale for necessity of and benefit to the minor . Paragraph 272 is more near the point. It states:-
(1) A guardian cannot validly contract in the name of a ward, so as to impose on him a personal liability .
(2) It is not within the competence of manager of a minor's estate, or of a guardian of a minor to bind the minor , or the minor's estate, by a contract for the purchase of immovable property .
(3) A guardian's powers with respect to the immovable property of his ward, are restricted so that he cannot alienate it unless there is absolute necessity for the alienation, or it is greatly for the benefit of the ward (emphasis has been supplied by me)."
More important question would be whether the listed conditions permitting the sale of immovable property of the ward by his legal guardian are exhaustive of all the situations or are illustrative of a principle of law governing rule of necessity and benefit to the ward. For example, the first instance which gave sanction for the sale of immovable property of the minor for double its value is clearly illustrative of a monetary benefit. Similarly , other conditions which gave power for sale of the immovable property of the minor by his legal guardian are a pointer in the direction of necessity and benefit. There fore, the underlying governing rule in case of alienation of immovable property owned by the minor by his legal guardian would be the rule of absolute necessity and benefit. An example which readily came to my mind and which supports the above conclusion was the ailment of the minor and his treatment requiring an expenditure which could be met out of the sale of his immovable property only. Placed in such a dilemma, should the ward be allowed to deteriorate and languish to death at the cost of conserving his property or could the legal guardian lay his hands on his property for saving his life. Neither money nor property are an end in themselves. Their purpose is to promote human weal and that is and should be their proper role in human society . In case of absolute necessity of or clear benefit to the minor , a legal guardian can alienate immovable property belonging to him. In my opinion, the enumerated instances are illustrative of a basic rule of absolute necessity of and benefit to the minor . It appealed to reason also and I would, therefore, humbly accept it as a correct rule of Islamic Law to govern the power of a legal guardian to alienate immovable property owned by his ward. Thus far, I dealt with the point without the aid from the case-law in pre-partition and post-partition era.
There are a large number of decided case s which dealt with the question relating to power of a guardian to alienate the immovable property of the ward both under Muslim and Hindu law. Those cases relate to the power of a guardian to purchase immovable property for the minor as also its sale and also the question about specific performance of agreement to purchase or sell the immovable property in the name of the minor . All these cases have been admirably noticed in a Full Bench judgment from Hyderabad High Court in Amir Ahmad and others v.
Meer Nizam Ali AIR 1952 Hyderabad 120. Leading judgment in the Full Bench case was given by M.S.Ali Khan, J. In para 3 of the judgment, the learned Judge observes:- "There remains, however , 'a separate and distinct' question whether and how far a minor can make a contract through his guardian. Cases have taken the distinction between the various grades of the guardians. The only guardians, who can within certain limits, make disposition of minor's immovable property are recognized to be the father , his executor , grandfather , his executor or guardian appointed by the Court. Every other guardian like the mother , the uncle, elder brother , etc. are termed de facto guardians and are deemed to be usually without authority to dispose of or bind the minor for the purchase of immovable property . Question remains how far the dispositions by a father and the other de jure guardians are binding on the minor . As explained in 'Imambandi v. Haji Mutasaddi', AIR 1918 P C 11, de jure guardian has power to dispose of minor's immovable property , though this power is subject to stringent conditions, all governed by the basic and fundamental principle that the acts of the guardian should be to the advantage and benefit of the minor and his estate. For fulfilling the actual wants of the minor and for his bringing up and maintenance as well as for the preservation of his property these guardians are empowered to dispose of certain immovable property of the minor . Otherwise, even dispositions by them are not considered valid. Taking the reverse side of the case, namely , acquisition of a property for the minor if the contract for the same is for the benefit of the minor and it is actually completed so as to transfer the ownership of the property to the minor , the transaction has been held to be valid."
Down below in para 9, the learned Judge stated:- "Lastly , I may refer to the case of 'Shri Kakulam Subramaniam v. Kurra Subba Rao', PLD 1948 PC 52. There the mother of a minor son has contracted as guardian to sell a land for paying off the debt of the father of the son and had given possession of it to the pr6misee . The suit for specific performance by the promisee was dismissed but on appeal to their Lordships of the Privy Council it was held that: "Their Lordships entertained no doubt that it was within the powers of the mother as guardian to enter the contract of sale on behalf of the respondent for the purpose of discharging his father's debts, and that, if the sale had been completed by the execution and registration of the sale-deed, the respondent would have been bound under Hindu Law."
They observed further that: "The position of the minor under such a contract is discussed in the following passage with which their Lordships agree, in Pollock and Mulla's Indian Contract and Specific Relief Act, 7th Edn., p.70: "A minor's agreement being now decided to be void (by 'Mohori Bibi v. Dhurmodas Ghose' , 30 Ind App 114 (PC), it is clear that there is no agreement to be specifically enforced; and it is unnecessary to refer to former decisions and distinctions, following English authorities which were applicable only on the view now overruled by the Privy Council. 'It is, however , different with regard to contracts entered on behalf of a minor by his guardian or by a manager of his estate'. In such a case it has been held by the High Courts of India, in cases which arose subsequent to the governing decision of the Privy Council, 'that the contract can be specifically enforced by or against the minor , if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it and, further , if it is for the benefit of the minor'. But if either of these two conditions is wanting, the contract cannot be specifically enforced at all."
This, in my opinion, is an important and recent pronouncement of the Privy Council and if the portions underlined (here in single inverted commas) were carefully considered, it would be evident that their Lordships of the Privy Council held with regard to contracts entered on behalf of minors by their guardian that they can be specifically enforced by or against the minor if the guardian is competent to make a contrac t binding on the minor and the contract is for the benefit of the minor ."
8. In the case of MUHAMMAD UMAR KHAN vs Mst. AZIZ BEGUM and another (2001 MLD 448) learned Division Bench of this Court, while pondering upon issue akin to that under consideration held as under:- "7. It may straightaway be observed by us that by virtue of the provisions of section 11 of the Contract Act, 1872 a minor is not competent to enter into a contract. It is admitted at all hands in this case that at the time of the relevant alienation this case the appellant was indeed a minor . It is also not disputed that none of the parents of the appellants got himself/herself appointed as a guardian of the appellant's property from a Guardian Judge and, therefore, none of the parents of the appe llant could alienate the appellant's property on his behalf. It may be true that under the Muslim Personal Law a legal natural guardian may in exceptional cases of necessity alienate a minor's property but that is permissible only where such an alienation is to be exclusively for the minor's benefit. A reference in this context may be made to the case of Manzoor Hussain and others v. Bhole Khan and others (1991 CLC 640). However , the evidence in this case does not show that the alienations in question had been made out of necessity for the exclusive benefit of the appellant or as to how the appellant actually stood benefited from such alienations. In these circumstances there cannot be any cavil with the argument that the alienations in question were legally incompetent and, therefore, completely bereft of any ef fect."
9. Adverting to the aspect of oral sale, there is no cavil that the same is recognized under the law but it had to be proved through credible and unimpeachable evidence. When evidence produced by the petitioner has been analyzed on the above touchstone it leads me to an irresistible conclusion that same is neither tangible nor cogent.
Guidance in this respect can be sought from MUHAMMAD NAWAZ through L.Rs. vs Haji MUHAMMAD BARAN KHAN through L.Rs. and others ( 2013 SCMR 1300 ) wherein the Hon'ble Apex Court held as under:- "10........W e also hold that although it is not the requirement of law that an agreement or contract of sale of immovable property should only be in writing, however , in a case where party comes forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the party to prove that there was consensus ad idem between both the parties for a concluded oral agreement. An oral agreement by which the parties intended to be bound is valid and enforceable, however , it requires for it prove clearest and most satisfactory evidence."
10. Needless to observe that for a valid sale, payment of sale consideration is always a sine qua non as per contemplation of Section 54 of the Transfer of Property Act, 1882. Since it was an oral sale, so the petitioner was obliged to lead overwhelming and tangible evidence to prove the same but no conc rete evidence is available to this effect. The payment of sale consideration is the necessary corollary of a valid sale and vendee is obliged to prove the same through convincing and unimpeachable evidence, which is clearly lacking in the present case. The payment of sale consideration is thus also shrouded in mystery .
11. There is yet another important aspect which relates to the limitation. Suit at hand at the face of it appears to be barred by time. It is though asserted in the plaint that the alleged transaction had taken place in the year 2010 but the suit was instituted on 14th February , 2018 which was apparently barred by time in terms of Article 113 of the Limitation Act, 1908. Article 113 of the Act ibid provides two eventualities for the purpose of calculating the limitation for instituting a suit for specific performance. Firstly suit can either be instituted within three years from the date fixed for the purpose in the agreement to sell and secondly if no such date is fixed, when the plaintif f has notice that performance is refused. Since the petitioner instituted the suit, while invoking second part of Article 113 of Act ibid so, he was obliged to explain delay of each and every day in filing the suit but there is nothing on record to meet with the same and suit is clearly barred by time.
12. There are concurrent findings of facts recorded by both the courts below which are apparently based on proper appraisal of evidence. After having an analytical view it can safely be inferred that none of the courts below have committed any illegality or material irregularity , while dismissing the suit of the petitioner concurrently . The revisional jurisdiction has a very limited scope and unless the petitioners establish that judgments under assailance suffer with infirmities as hedged in Section 115 of "CPC" they could not succeed. As no illegality or material irregularity is pointed out by the petitioner in the concurrent findings of the courts below , so exercise of revisional jurisdiction is unwarranted. Consequently this civil revision, being without any merits is dismissed in limine.