QAZI FAEZ ISA, J.---116 kanals 7 marlas of land in mouza (village) Kanipur , Tehsil Depalpur , District Okara was owned by Sajjad Abbas and Mst. Rabia Kausar alias Farzana Yasmin (respectively respondents Nos. 1 and 2) which was sold by their brother Zulqarnain Haider (respondent No. 3) exercising power to sell granted to him by general power of attorney dated 8 February 1975 (General Power of Attorney) purportedly executed by his siblings and by executing a registered sale deed dated 15 September 1976 for a sale consideration of one hundred and forty-five thousand four hundred and thirty seven-rupees and fifty paisas (Rs. 145,437.50) (`Sale Deed' and 'sale consideration' respectively). Out of the 116 kanals 7 marlas of land Yar Muhammad Khan bought 56 kanals, Lal Khan bought 52 kanals 7 marlas and Shah Muhammad bought 8 kanals. Subsequently , Yar Muhammad Khan sold his entire share of land to the appellants Nos. 4 to 7 through registered sale deed dated 23 February 1983.
2. On 21 September 1991 a suit was filed by respondents Nos. 1 and 2 alleging that they were minors at the time when the General Power of Attorney and the Sale Deed were executed, and they wanted the court to declare the sale made on their behalf to be void. The learned Senior Civil Judge, Depalpur dism issed the suit on the grounds of limitation and res judicata. The suit was held to be time barred because it was not filed within three years of the plaintif fs (respondents Nos. 1 and 2) attaining majority as provided by section 6 of the Limitation Act, 1903 ('the Act'). And the suit was held to be barred on the principle of res judicata since the plaintif fs mother had earlier filed a suit filed on 5 March 1978 on their behalf which was dismissed on 8 October 1979 for non-prosecution and non- production of evidence.
3. The respondents Nos. 1 and 2 appealed the judgment of the learned Civil Judge and their appeal was allowed by the learned Additional District Judge, Okara, on 30 October 1999 and the suit was decreed. It was held by the learned Judge of the Appellate Court that on the date of the purported execution of General Power of Attorney and Sale Deed the plaintif fs (respondents Nos. 1 and 2) were minors and that the General Power of Attorney and Sale Deed had not been established in accordance with Article 79 of the Qanun-e-Shahadat Order , 1984. However , the Appellate Court directed the plaintif fs to return the sale consideration and to pay an additional amount of three hundred thousand rupees which had been spent in improving the land after its sale. Both parties filed revisions in the High Court. The learned Judge of the High Court maintained the judgment of the Appellate Court (which had set aside the sale) but allowed the revision filed by the respondents Nos. 1 and 2 with regard to the return of sale consideration and the additional amount of three hundred thousand rupees through the impugned judgment dated 15 August 201 1.
4. Mian Muhammad Hanif, learned counsel, representing the appellants in the appeal and the petitioners in the unnumbered petition, submits that the learned Senior Civil Judge had rightly dismissed the suit on valid legal grounds which were not considered either by the Appellate Court or by the Revisional Court and submitted that:
(1) Once the minority of the plaintif fs came to an end the suit should have been filed by them within the extended period of three years provided by section 6 of the Act, but the suit was filed on 21 September 1991 which was after the three years extended period; reliance was placed on the cases of Mahmood Khan v. Muhammad Hasan (1991 SCMR 1566 ), 'Muhammad Hanif v. Arshad Ali (2003 MLD 568) and Siyar Khan v. Ibrahim (2015 MLD 258);
(2) Abdul Rashid v. Director-General Post Offices (2009 SCMR 1435 ) was cited in support of the contention that remedies must be diligently pursued and within the prescribed period of limitation as held in the cases of Ghulam Qadir v. Abdul Wadood (PLD 2016 Supreme Court 712), Sher Muhammad v. Fatima (2016 MLD 185), Irfan Ahmad v . Ahmad Shah (2016 CLC 1 14) and Muhammad Yousuf v . Fazal Elahi (2017 MLD 1997 ); The registered General Power of Attorney was not sought to be cancelled therefore any act pursuant thereto could not be challenged;
(4) The concerned Sub-Registrar and/or the Province should have been arrayed as party/parties and in this regard the case of Sikandar Hayat v. Sughran Bibi (2020 SCMR 214) was relied upon, in which case the entrie s in the revenue records were challenged but without arraying the Revenue department;
(5) The registration of a document raises the presumption of due execution, including that those executing it were majors; in this regard reliance was placed upon the cases of Muhammad Siddique v. Noor Bibi (2020 SCMR 483) and Muhammad Sarwar Khan v . Rukhsana Zuhra Bibi (2016 CLC Note 20); and
(6) If a fraud had been committed it was committed by respondent No. 3 who was the brother of the respondents Nos. I and 2 and they should seek their remedy against their brother .
The learned counsel also took issue with the filing of the suit by respondent No. 2 (plaintif f No. 2 in the suit) who did not join the proceedings and did not come forward to testify . Learned counsel contended that the special power of attorney dated 12 September 1991 purpo rtedly granted by her to her brother Sajjad Abbas (plaintif f No. 1) to file and contest the suit ('Special Power of Attorney') for her land situated in mouza (village) Baseerpur whereas the subject land was situated in mouza (village) Kanipur which was then in another district, that is District Sahiwal, but which is now part of District Okara. Learned counsel further submitted that the very identity of respondent No. 2 is suspect as her name/description was contrary to her name as appearing on other documents, including the Register of Births (exhibit P-5), and these contradictions were not resolved, which could have been resolved, therefore, she cannot be categorised to be a plaintif f in the suit and/or aggrieved by the said sale.
5. Maulvi Anwar-ul-Haq, learned senior counsel, representing respondents Nos. 1 and 2 in the appeal and in the unnumbered petition, submitted that the two concurrent judgments of the revisional and appellate courts were well reasoned and accorded with the law. He submitted that respondent No. 1 was born on 29 June 1970 and attained majority (eighteen years) on 28 June 1988 and respondent No. 2 was born on 25 February 1963 and attained majority on 24 February 1981. The General Power of Attorney was purportedly executed on 8 February .1975 and Sale Deed is dated 15 September 1976 when both of them were minors and when they learnt of the said sale they filed the suit. The learned counsel submitted that:
(1) A contract made by a minor is of no legal effect and reference in this regard was made to section 11 of the Contract Act, 1872 and to the case of Abdul Ghani v . Yasmeen Khan (2011 SCMR 837 );
(2) The General Power of Attorney and the Sale Deed to the extent of respondents Nos. 1 and 2 were ab initio null and void and being a nullity did not require cancellation and in support of this contention relied on the case of Hamida Begum v . Murad Begum (PLD 1975 Supreme Court 624); A purported sale by a minor was void ab initio and could be challenged within a reasonable time of the minor acquiring knowledge as was held in Mehr Manzoor Huzzain v. Muhammad Nawaz (2010 SCMR 1042 ) and Shabbir Ahmed v . Abdul Haleem (2000 SCMR 1287 );
(4) There was nothing on record to show that the respondents Nos. 1 and 2 had knowledge of the purported sale of the land, and assuming another family member (including their mother) knew about the sale or had agitated the matter in a court it would not suffice, and reliance was placed on the case of Moolchand Muhammad Yousuf (PLD 1994 Supreme Court 462 );
(5) Ahmad Khan v. Rasul Shah (PLD 1975 Supreme Court 311) held that Muslim Law does not permit a guardian of a minor to transfer his/her property and if he did so the transfer was void;
(6) The purchasers were residents of the area and did not act in a bona fide manner as they purchased the land knowing that it was owned by minors; and
(7) The filing of the suit by the mother of respondents Nos. 1 and 2 was specifically denied and its filing was not established, therefore, the principle of res judicata is not applicable.
6. During the hearings the learned senior counsel representing respondents Nos. 1 and 2 questioned whether the General Power of Attorney had been registered by the Sub-Registrar , Depalpur . Therefore, by consent of counsel on 8 October 2020, we directed the production of the original register by the concerned office and the same was produced on 15 October 2020 and copies were kept on record, provided to counsel and an opportunity granted to examine the same.
7. We spent a number of days hearing these cases as they involved a number of complicated law points. Both the counsel painstakingly argued different aspects and cited a number of precedents. The last hearing took place on 21 October 2020 and on conclusion counsel sought time to augment their submi ssions by filing additional legal submissions which they did; the learned Maulvi Anwar-ul-Haq filed C.M.A. No..6765/2020 on behalf of respondents Nos. 1 and 2 and the learned Mian Muhammad Hanif filed C.M.A. No. 6919/2020 on behalf of the appellants/petitioners. W e compliment both counsel for their thorough professionalism and assistance.
8. To protect minors and their interests a minor cannot enter into an agreement nor grant a power of attorney to another to do so. Section 11 of the Contract Act, 1872 explicitly stipulates that only those who arc 'of the age of majority according to the law to which he is subject' are 'competent to contract'; the law is the Majority Act, 1875 section 3 whereof stipulates eighteen years as the age of majority . This Court in the case of Abdul Ghani v.
Yasmeen Khan (above, which was decided by three learned Judges) held that: The provisions as enumerated in section 11 of the Contract Act, 1872 would make minor incompetent to enter into any contract, therefore, contract by minor was void ab initio and not merely voidable. Such contract would have no existence in the eye of law and was incapable of satisfaction or confirmat ion' (paragraph 13, page 847B). Therefore, the General Power of Attorney dated 8 February 1975 is void to the extent of a minor . This leads on to the question of limitation and 'whether the suit was belatedly filed. in Hamida Begum v. Murad Begum (above, a decision by four learned Judges) it was held that: '... where the deed or instrument is ab initio null and void, in which case it can be treated as a nullity without having to be cancelled or set aside. If on the other hand, the instrument is only voidable, then it would be necessary to have it set aside or cancelled in order to remove the impediment in the way of the plaintiff (at page 50E).
9. Therefore, as the General Power of Attorney and the Sale Deed to the extent of the minor is ab initio null and void we need not consider the affect of section 6 of the Limitation Act, 1908. Howe ver, in Mehr Manzoor Hussain v. Muhammad Nawaz (above, decided by three learned judges) it was held that: 'We are of the view that there is distinction between an agreement of sale executed by a natural guardian or a guardian appointed by a Court and an agreement of sale executed by a minor . In the latter case, the minor ought to have question1Cdf the validity of the sale within three years under Article 44 of the Limitation Act upon attaining majority whereas in the former case the sale transaction being void ab initio can be challenged within a reasonable period when the minor on becoming major acquired knowledge of the sale' (paragraph 12, page 1046), Therefore, challenge cannot be postponed indefinitely and must be made 'within a reasonable period when the minor on becoming major acquired knowledge of the sale'. In the instant case the appellants/petitioners sought to attribute knowledge of the sale to the respondents Nos. 1 and 2 through their mother , who is stated to have filed some suit but the filing of such suit was not established. Reference was made to the testimony of official respondents who had produced exhibits 'Pl4/1', '
P14/2' and 'P15' and had denied the existence of such a suit. When the fact of filing the suit was not established its dismissal could also not be, let alone attribute knowledge to the respondents Nos. 1 and 2. Conjecture is not a substitute for facts and on such a weak foundation the plea of res jadicata cannot succeed. It is also not established that the respondents Nos. 1 and 2 had prior knowledge of the sale.
10. The suit was filed on 21 Septembe r 1991, which was a little over three years and 'seven months after respondent/plaintif f No. 1 attained majority but about ten years and seven months after the respondent/plaintif f No. 2 attained majority . The date of filing of the suit may be construed to be within a reasonable period of respondent No. 1 attaining majority but it is questionable whether it was within a reasonab le period of respondent No. 2 attaining majority in terms of the decision in the case of Mehr Manzoor Hussain v. Muhammad Nawaz (above).
This is not the only aspect of the case which raises questions about respondent No. 2.
11. A serious question about the identity of respondent No. 2 has also been raised. In the plaint she is described as Raiba Kausar alias Farzana Yasmin daug hter of Khurshid Haider' but the document produced to show her to be a minor at the time of execution of General Power of Attorney and Sale Deed. was entry dated 28 February 1963 in the 'Register of Births' exhibited as 'P5' (page 163, Part II) which showed 'Syed Haider Ali Shah' to be the father of Raiba Kausar' . The extract from 'Register Haqdaran-e-Zameen' exhibited as 'P2' (page 160, Part II) shows the name of the owner as "Yasmin daughter of Khurshid Haider'. The Special Power of Attorney dated 12 September 1991, which was exhibited as `111' (pages 156-159, Part II), on the basis of which the respondent/plaintif f No. 1 (Sajjad Abbas) also filed the suit on behal f of respondent/plaintif f No. 2 describes her as 'Farzana Yasmin daughter of Khurshid Haider Shah wife of Azhar Hussain' . The plaint was neither signed nor verified by respondent/plaintif f No. 2 and she did not come forward to give evidence. The mystery regarding her name, her father's name and her age may have been resolved if she had elected to come forward and testified but she did not do so; the fact that she did not testify seriously undermined her case.
12. There is yet another significant discrepancy regarding the Special Power of Attorney whereby respondent/plaintif f No.1 was appointed attorney in respect of land situated in mouza (village) Baseerpur (which was then in District Sahiwal and which is now part of District Okara) whereas the subject land is situated in mouza Kanipur , Tehsil Depalpur of District Okar a. C.M.A. No. 6078 of 2020 was filed on 5 October 2020 on behalf of respondents Nos. 1 and 2 saying that, 'The said respondent [respondent No. 21 does not own any property in.
Baseerpur and it was a clerical error' made in the Special Power of Attorney . Therefore, we read the entire Special.
Power of Attorney to determine whether the same could be categorised as a clerical error and concluded that it could not be a clerical error, because no particulars of the property in respect wher eof the attorney was appointed, save that it is situated in mouza Baseerp ur, were mentioned therein. And, it cannot be permitted (after about thirty years and in this the final and fourth court) to contend on behalf of respondent No. 2 that she had appointed an attorney in respect of her land situated in mouza Depalpur instead of mouza Baseerpur .
13. In the suit it was alleged that: the plaintif fs' brother Zulqarnain had committed a fraud by using the General Power of Attorney and as consequence of his fraud third parties were defrauded. Therefore, we cannot view the respondent No. 2 in a different light and apply a different test for her, accept and condone a mistake purportedly made in the Special Power of Attorney and that it was made by her. The mistake can also not be seen in isolation by disregarding the other facts (as noted in paragraphs 10 to 12 above) which taken together de-suit plaintif f No. 2 and without a suit filed on her behalf let alone one that established that she was a minor on the date that the General Power of Attorney and the Sale Deed were executed.
14. However , as regards appellants Nos. 4 to 7 their case is distinguishable. Yar Muhammad Khan sold his entire share of land vide registered sale deed dated 23 February 1983 to appellants Nos. 4 to 7 who were independent third parties, the sale was bona fide, the purchasers had no notice of any defect in the title of the seller and it took place long before the filing of the suit (on 21 September 1991). Therefore, it would be unfair and unjust to affect the rights of appellants Nos. 4 to 7 and their acquisition of 56 kanals of land.
15. Therefore, for the reasons mentione d above we partly set aside the impugned judgment of the High Court dated 15 August 2011 in Civil Revisions Nos. 73 and 382 of 2000 and the judgment dated 30 October 1999 of the Additional District Judge, Okara in Civil Appeal No. 39-ADJ of 1999 by excluding therefrom (a) the land sold by Yar Muhammad Khan to the appellants Nos. 4 to 7 vide registered sale deed dated 23 February 1983 and (b) the land/share in land previously owned by respondent/plaintif f No. 2. Since Zulqarnain Haider son of Khurshid Haider had defrauded the parties the aggrieved parties may pursue their remedies against any estate which he left at the time of his death. C.M.A. No. 2009-L/201 1 is allowed, the petition is converted into an appeal and, consequently , both the appeals are partly allowed in the aforesaid terms. There shall be no order as to costs.