Mohammed Javed Iqbal (appellant) , on 05.12.2006, had filed a suit for specific performance initially against Mst.
Naseem Anjum with regard to land measuring 11-Kanals, 6-Marlas and 6 yards (suit land) situated at Moza Balail, Tehsil and district Multan. Later on, by filing an amended plaint, Rao Shahzeb Dilshad, Jahanzeb Dilshad, Aurangzeb Dilshad and Humaira Sanam all minors/respondents through their mother Mst. Naseem Anjum were impleaded as defendants, because the suit land was under their ownership.
2. It was claimed by appellant, that mother of respondents entered into an agreeme nt to sell (disputed agreement) with him on the basis of a written instrument No. 1963 dated 19.03.2005; sale consideration settled was Rs.910465/- (nine lacs, ten thousands, four hundred and sixty five); an amount of Rs.560465/- (five lacs, sixty thousands, four hundred and sixty five) was paid to her as an earnest money in presence of witnesses; possession of suit land was also given to him; Mst. Naseem Anjum got transferred the land in favour of appellant to the extent of her share through a registered sale deed; about the suit land she was of the view that the moment she got issued, the guardianship certificate, she would transfer the suit land in the name of appellant. Prayer was made for decree for specific performance.
3. Rao Shahzeb (respondent No.1) also instituted a suit for declaration against his brothers, sister , mother and appellant. He called in question the legality of disputed agreement and asserted that after the death of his father Dilshad Khan, he, his brothers and sister inherited the suit land; their mother was under obligation to secure and protect their interest; the act of entering into agreement to sell and receiving the amount by their mother was illegal having no ef fects on their rights.
4. Both sides submitted their written statements and pleaded the same facts, which they set out in their respective plaints.
5. The suits were consolidated and vide an order dated 13.03.2013, following issues was framed by the learned trial court:- i. Whether defendants agreed to sell the suit property to the plaintiff for consideration of Rs.910465/-, received earnest money Rs.560465/- and executed iqrarnama dated 19.03.2005? OPP ii. Whether plaintiff was willing and ready to perform his part of agreement and it is the defendant who failed to abide by terms and conditions? OPP iii. If above issues are decided in affirmative, whether plaintiff is entitled to decree of specific performance of agreement of sale, as prayed for . If so on what terms and condition? OPP iv. Whether plaintiff has no locus standi and cause of action to file the suit? OPD v. Whether the suit of the plaintiff is not proceed able in its present form? OPD vi. Whether the suit of the plaintiff is liable to rejection under Order 7 Rule 1 1 CPC? OPD vii. Whether the suit of the plaintiff is time barred? OPD viii. Whether the suit of the plaintiff is not proceedable under Order 2 Rule 2 CPC? OPD ix. Whether the plaintiff has filed false and frivolous suit just to harass the defendants, hence defendants are entitled to recover special costs under Section 35-A, CPC? OPD x. Whether Iqrarnama dated 19.03.2005 is against law and facts ineffective upon the rights of the plaintiff of the connected suit? OPD xi. Whether (plaintiffs of the connected suit) are entitled to decree for declaration, as prayed for? OPD xii. W eather (plaintiffs of the connected suit) have no cause of action and locus standi to file the suit? OPP xiii. Whether (plaintiffs of the connected suit) is estopped by their words and conduct to suit? OPP xiv. Weather suit of (plaintiffs of the connected suit) is based on malafide? OPP xv. Whether suit of (plaintiffs of the connected suit) is not proceed able in its present form? OPP xvi. Whether (plaintiffs of the connected suit) filed false and frivolous suit just to harass the plaintiffs hence plaintiffs are entitled to recover special costs under Section 35-A, CPC? OPP xvii. Relief
6. In evidence Muhammad Javed Iqbal (appellant) got his statement recorded as Pw-1 , who also produced Mushtaq Ahmad (Pw-2) , Khadim Hussain (Pw-3) , Muhammad Shafiq (Pw-4) , Muhammad Asghar (Pw-5) , Haji Muhammad Saeed (Pw-6) and Akhtar Hussain (Pw-7) . The documents Ex. P-1 to P-11 were also produced in documentary evidence.
7. On the other hand, Mst. Naseem Anjum appeared as Dw-1 and produced Muhammad Saleem Hashmi (Dw-2) , Rao Shahzeb (Dw-3) and Shahrukh Dilshad (Dw-4) besides the documents Ex.D-1 to D-3 .
8. Both the suits were decided by way of a consolidated judgment dated 20.03.2013, passed by the learned civil Judge Multan. Suit for specific performance filed by appellant was dismissed and for declaration instituted by Rao Shahzeb/respondent No.1 was decreed in his favour .
9. Two independent appeals were filed by appellant, which were dismissed on the strength of consolidated judgment and decree dated 1 1.04.2016, passed by the learned Additional District Judge Multan.
10. Being aggrieved from the judgments and decrees of two courts below , appellant has filed regular second appeal (91 of 2018) that is outcome of dismissal of suit for specific performance and civil revision (1572-D-2018) that emerged from the decree in favour of respondent No. 1. Hence both are being decided by way of this single judgment .
11. Learned counsel for appellant contended that both the courts below ignored an important fact that the mother of minors was a natural guardian, therefore, the powers she exercised on behalf of minors will be deemed to be under legal cover; Mst. Naseem Anjum when admitted her signatures on stamp paper , onus was on her to prove contrary; both the courts below did not apply their judicial mind to the facts and circumstances of the case and they are responsible for mis-reading and non-reading of evidence available on record, therefore, both the judgments and decrees are liable to be set aside.
12. Heard
13. It is an admitted fact that the suit land was originally owned by Dilshad Ali Khan, the predecessor of respondents and on his death all the respondents including their mother being the legal heirs inherited the property according to their shares. Alienation of land to the extent of share of Mst. Naseem Anjum, the mother of respondents, is not under question nor will it give a support to the case of appellant, because the sole and fundamental question involved in this case is that when at the time of disputed agreement all the respondents were minors, had their mother any lawful authority to enter into disputed agreement with regard to suit land? So it is immaterial for this court to give the findings on the issue that if the disputed agreement was executed or not for the reason that even if it was executed it had no legal strength.
14. The perusal of disputed agreement clearly shows that Mst. Naseem Anjum, the mother of respondents, made bargain with appellant being their natural guardian, which means that on the relevant day she was not a guardian appointed by any court about the persons and property of minors. In normal understanding a natural guardian is to be considered a child' s biological or adopted mother or father who can be said having the powers to make day-to- day decisions for a minor child. Therefore, another proposition also emerged from the discussion is that what the powers of a natural guardian possess and can exercise?
15. By now these are the settled principles based on Mohammadan Law, a mother of minor is not the natural guardian to deal with the property of her minor child and that at the most, she can be his/her de facto guardian in terms of Section 361 of the Mohammadan Law having no powers to make any transaction about the property of minor child. The apex Court in Muhammad Haneef's case, while entertaining the identical situation, when a mother had made an exchange of property of her minor child, was pleased to hold that: - "6. We have heard the learned counsel for the parties and have also perused the available record with their able assistance. The bare perusal of exchange Mutation No.62, dated 30.5.1967 passed by the Assistant Collector would make it manifestly clear that Mst. Ghulam Fatima, the respondent No.7, was a minor at that time and that her mother Mst. Rabia, the respondent No.6, got transferred in her favour the suit-land of her minor daughter , by way of exchange. There is nothing on record to show that Mst. Rabia was ever appointed by any competent Court to be the guardian of the property of her minor daughter Mst. Ghulam Fatima. The respondent No.6, albeit mother of respondent No.7, was not the natura l guardian to deal with the property of her minor daughter , the respondent No.7, under the Mohammadan law. At the most, she was the de facto guardian of the property of her daughter . Therefore, the exchange Mutation No.62 showing exchange of suit land between the mother and her minor daughter was illegal.
7. In the principles of Mohammadan Law by D.F Mulla, (Pakistan Edition) (1995), it is stated that in section 359 the following persons are entitled in the order mentioned below to be the 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 .
In section 360, it is provided that in default of the legal guardians appointed in section 359, the duty of appointing a guardian for the protection and preservations of the minor's property falls on the Judge as representing the State.
As regards a de facto guardian, it is laid down in section 361 a person may neither be a legal guardian (section 359) nor a guardian appointed by the Court (section 360) but may have voluntarily placed himself incharge 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 . Section 364 leaves no doubt that a de facto guardian (section 361) has no power to transfer any right or interest in the immovable property of the minor " (Emphasized applied)
16. None of the parties produced the order of the guardian court that on what date Mst. Naseem Anjum was appointed as a guardian of minors. However, perusal of statement of Rao Shahzeb/respondent No.1 (Dw-3) shows that Mst. Naseem Anjum filed the application for appointment of guardian in 2005 and she got the certificate in April 2006. This fact is further confirmed from the contents of application seeking permission for sale of suit land submitted by Mst. Naseem Anjum. The disputed agreement is dated 19.03.2005, which means that1 admittedly till that time Mst. Naseem Anjum was not appointed as a guarding and that status she got on 27.04.2006 after more than one year of the said agreement.
17. In Ahmed Khan' s case there was also the question of sale of property of minor by de facto guardian. The honorable Supreme Court of Pakistan was pleased to hold that: - "But this deed is actually executed by Mst. Haws Jan widow of Abbas Khan, purporting to be on behalf of her minor son Haider Khan as guardian of his person and property to pay off certain outst anding debts contracted by her deceased husband. It is well established principle of Muslim Law that a de facto guardian of a minor has no power to transfer any right or interest in immovable property of the minor . Such a transfer is not merely voidable but is void"
18. Same view finds support from other precedents and also referred in Muhammad Haneef 's case ( ibid).
19. It is also contended that later on Mst. Naseem Anjum was appointed as a guardian of minors therefore, her act of entering into disputed agreement was duly protected. It is not as simple as argued for the reasons that while seeking permission for sale, the lady never disclosed that she had already made some deal and she wanted to make it final therefore the permission for sale granted by the guardian court on 30.06.2006 after more than one year of the disputed agreement can never be termed as permission for any past transaction. Similar proposition was answered in Muhammad Elaz Hussain' s case , where it was held that 'the subsequent appointment of the mother as a guardian would not validate the arbitration agreement '.
20. The guardianship is a legal process used to protect individuals who are unable to care for their own well-being due to infancy, incapacity or disability. The court appoints a legal guardian to care for an individual, known as a ward, who is in need of special protection. A guardian has to act within four corners specified and the authority given by the guardian court. Each act including the sale of property has to be for the benefit of the minor with prior permission of the court. In general, a guardian does not have the authority to make contract for the ward without specific permission from the court. Finally every act of guardian must be in the better interest of minor and not otherwise.
21. In the case in hand the malafide conduct of the mother of minors/respondents is floating on record. She was de facto guardian, having no authority to make any agreement about suit land but she did so. She applied for guardianship certificate, but she did not disclose there that she on behalf of minors had already entered into agreement to sell with appellant. She asked for permission after one year of disputed agreement and even here she kept her lips tight about that document. So every act of the lady was against the interest of minors and when it is so appellant cannot force for the decree on the strength of disputed agreement that was void and not voidable. It is needless to refer here that the expres sions 'void ab-initio ' in a strict sense means 'absolutely null' that is to say incapable of ratification or confirmation and of no ef fect whatever .
22. Coming to second appeal, it only lies on a substantial question of law. If statute confers a limited right of appeal, the Court cannot expand the scope thereof. Therefore, the existence of a 'substantial question of law' is the sine qua non for the exercise of jurisdiction under Section 100 of the CPC .
23. There are concurrent findings of two courts below based on proper appreciation of evidence, with full application of judicial mind to the facts and circumstances of the case. The decisions are outcome of judicial consideration of evidence adduced in the case. Learned counsel for appellant is completely failed to show any substantial question of law involved in this case. Even he is not in a position to show any serious error in the findings recorded by both the courts below resulting into miscarriage of justice.
24. Reverting to civil revision, the principles are also settled that while sitting in revisional jurisdiction, the High Court will not interfere in the concurrent findings of the courts below unless it is established that there is misreading or non-reading of evidence available on record; while assessing or evaluating the evidence both the courts omitted consideration from some important piece of evidence which has direct approach on issues involved in the case; both the courts below have failed to exerc ise the jurisdiction so vested in them or they have acted in the exercise of its jurisdiction illegally or with material illegality .
25. Concluding the discussions made above, this Court finds no force in the appeal and revision both, hence dismissed in limine . No order as to the costs. 2 3 4 5 6 7 Muhammad Haneef vs. Abdul Samad & others PLD 2009 SC 751 Ahmed Khan & others v . Rasool Bakhsh & others PLD 1975 SC 31 1 Mst. Abdara v. Salim Khan & others PLD 1992 Peshawar 98, Mst. Subhan Bibi & another v. Mst. Musarrat Jabeen & others PLD 1969 Karachi 563, Musali Khan v. Nazir Ahmed & others PLD 1952 Peshawar 1, Ziarat Gul v. Mian Khan PLD 1950 Peshawar 69, Zinda & others v. Mst. Roshna & another AIR 1928 Lahore 250 and Rang Ilahi and another v . Mahboob Ilahi AIR 1926 Lahore 170. Muhammad Ejaz Hussain & another v . Muhammad Iftikhar Hussain & others AIR 1932 PC 76 The Chairman District Screening Committee Lahore & another vs. Sharif Ahmad Hashmi PLD 1976 SC 258 Abdul Rashid vs. Bashiran & another 1996 SCMR 808 and Pathana vs. Mst. Wasai & another PLD 1965 SC 134 Kalsoom Bibi & another vs. Muhamma d Arif & others 2005 SCMR 135, Abdul Mateen & others vs. Mst.
Mustakhia 2006 SCMR 50, and Alamgir Khan through L.Rs & others vs. Haji Abdul Sittar Khan & others 2009 SCMR 54