' RUSTAM S. SIDHWA, J.--This is a letters patent appeal filed by Ghulam Muhammad and two others, appellants Nos.1 to 3, against the judgment of a learned Single Judge of this Court dated 9-2-1968 accepting the second appeal (R.S.A. No.55 of 1957) filed by Fateh Muhammad and others, respondents Nos.1, 3, 4 and 5, and setting aside the judgments and the decrees of the Courts below and decreeing the suit of the said respondents and of Muhammad Sadiq, respondent No.2.
2. The facts leading up to this appeal are as follows. One Budha, who owned land measuring 222 Kanals and 4 Marlas in Chak No.47/R.B., Tehsil Lyallpur, executed a will on 23-4-1944 bequeathing 3/4th of his land in favour of Bashir, Rashid and Nazir, the present respondents Nos.6 to 8, the sons of his daughter Mst. Hakam Bibi, and the remaining 1/4 in favour of one Muhammad Din son of Fateh Din, his cousin, the predecessor-in-interest of Ghulam Muhammad, Ahmad Khan and Rehmat Khan sons of Jawaya, the present appellants Nos.1 to 3, and Fazal Din son of Wali Dad.
(Fazal Din was a respondent in R.S.A.No.55 of 1957 and died during its pendency, when, Ghulam Muhammad, Ahmad Khan and Rehamt Khan, appellants Nos.1 to 3, and Mst. Inayat Bibi and Mst.
Aisha Bibi, the nieces of the said Fazal Din, respondent, were brought on the record).
3. On 15-9-1945, the aforesaid Budha changed his mind and willed the entire property in favour of his second wife Mst. Taleh Bibi.
4. On 6-7-1946, Budha died and on 25-8-1946 the whole of his land was mutated in favour of Mst.
Taleh Bibi his widow.
5. Bashir, Rashid and Nazir, respondents Nos.6 to 8 appealed to the Collector against the above mutation, but the appeal failed. Thereafter on 6-11-1946 they filed a civil suit in the Court of a Civil Judge at Lyallpur impleading Mst. Taleh Bibi and Muhammad Din as defendants. The said suit of respondents Nos. 6 to 8 was for a declaration that they were owners of half the land of Budha, that Mst. Begum Bibi, respondent No.9, a daughter of Budha out of his first wife was owner of 1/4 of his lands and Muhammad Din was owner of the other 1/4 and that the second will was inoperative against their rights as granted to them by the first will. Muhammad Din did not contest this suit at all. On 27-3-1947, a compromise was effected between the parties, on the basis of which judgment Exh.D.2 and decree Exh.P.13 was drawn up. Through this compromise it was agreed that land measuring 109 Kanals and 15 Marlas being 1/2 share of the land measuring 219 Kanals and 10 Marlas out of square No.50 would belong to Bashir, Nazir and Rashid, respondents Nos.6 to 8, while out of 1/2 share of the land measuring 112 Kanals and 9 Marlas out of square No.3, half would go to Mst. Taleh Bibi and the other half to Muhammad Din and after the death of Mst. Taleh Bibi, her share would devolve upon Muhammad Din. On the basis of the above compromise decree, a mutation No.78 Exh.P.9 was sanctioned on 2-7-1947.
6. At this stage it may be relevant to state that in 1948, the Enforcement of Shariat Application Act came into force.
7. On 5-5-1949, Muhammad Din died and his 1/4th share was mutated in favour of his heirs as follows:- "Ghulam Muhammad, appellant No.1)
Ahmad Khan, appellant No.2. 1/2 share Rehmat Khan, appellant No.3 Fazal Din and Allah Ditta sons of Wali Dad 1/2 share ' This was effected by mutation No.80 Exh.P.16 sanctioned on 26-12-1950.
8. On 7-5-1949, Ghulam Muhammad, Ahmad Khan and Rehmat Khan, appellants Nos. 1 to 3, and Fazal Din, claiming themselves to be the heirs of Budha and showing themselves to be the full owners of the entire land measuring 221 Kanals and 2 Marlas left by Budha, deceased, exchanged the said land with Fateh Muhammad, Muhammad Sadiq, Ibrahim, Ghulam Haider and Ghulam Rasool, respondent Nos.1 to 5, in return for their land measuring 161 Kanals and 11 Marlas situated in village Hamidpur Khurd, Tehsil Gujranwala, transferred to them, regarding which exchange deed Exh.D.1/P.1 was executed.
9. No mutation in the column of ownership was effected by either of the two parties to the exchange deed in respect of their lands taken over by them in the revenue records.
10. Sometime later Mst. Taleh Bibi also died and her 1/4th share in square No.3 was mutated in the name of Sardara, respondent No.12, her son out of her first husband, and her daughter Mst. Begum Bibi, respondent No.9, out of her second husband Budha, who sold her share to Muhammad Malik, respondent No.10.
11. On 24-2-1953, Fazal Din, predecessor-in-interest of Ghulam Muhammad, Ahmad Khan and Rehmat Khan, appellants Nos. 1 to 3, and Mst. Inayat Bibi and Mst.Aisha Bibi, exchanged 16 Kanals of land which originally belonged to him with Fateh Muhammad, respondent No.1, vide exchange deed Exh.P.2.
12. On 26-6-1953, the aforesaid Fazal Din sold 28 Kanals 0 Marlas of land originally belonging to him to Muhammad Alam, respondent No.11, and Fateh Muhammad, respondent No.1, vide sale-deed Exh.P.1.
13. On 22-5-1955, Ghulam Muhammad, Rehmat Khan and Ahmad Khan, appellants Nos.1 to 3, and Fazal Din (the predecessor-in-interes of the said three appellants and Mst. Inayat Bibi and Mst.
Aisha Bibi) got mutation No.966 Exh.P.10 sanctioned in their favour in respect of the land secured by them through the exchange in village' Hamidpur Khurd, Tehsil Gujranwala, in their favour.
14. On 21-7-1955, Fateh Muhammad and others, respondents Nos.1 to 5, filed a suit against Ghulam Muhammad and others, appellants Nos.1 to 3, and Fazal Din for a declaration that they were owners of the land in question, that the exchange deed had not been acted upon and, therefore, did not effect their rights in the land, or, in the alternative, for a declaration that the exchange deed dated 7-5-1949 being based on fraud, misrepresentation and concealment of true facts was illegal, null and void and inoperative and did not effect their rights of ownership in the land and that the defendants be restrained from interfering in their ownership of their lands.
15. The proceedings against Bashir, respondent No.6, Nazir, respondent No.8, Muhammad Malik, respondent No.10, and Muhammad Alam, respondent No.11, were taken ex parte. Mst.Begum Bibi, respondent No.9, supported the exchange effected by Ghulam Muhammad and others, appellants Nos.1 to 3, and Fazal Din, whilst Rashid, respondent No.7, was represented by a guardian-ad-litem appointed by the Court. Ghulam Muhammad and others, appellants Nos. 1 to 3, and Fazal Din contested the suit pleading that the wills executed by Budha were invalid and, therefore, their predecessor-ininterest Muhammad Din inherited the whole of the land left by Budha when he died and that since he was not a party to the compromise in the suit brought by Bashir and others, respondents Nos. 6 to 8, he was neither bound nor affected by the compromise decree and, therefore, they were the full owners of the land given to Fateh Muhammad and others respondents Nos.1 to 5, in exchange for the land in dispute. They denied that they had practised any fraud or misrepresentation to obtain the exchange and that the exchange deed was executed by both the parties with the full knowledge of the facts behind them. It was also alleged that the exchange deed was acted upon and the land given to Fateh Muhammad and others, respondents Nos.1 to 5, in exchange had been partly in their possession and partly in possession of the mortgagees. The bar of limitation was also pleaded and it was alleged that Fateh Muhammad and others, respondents Nos.1 to 5, were estopped by their conduct to sue.
16. The proceedings against defendants Nos.5, 7, 9 and 10 were taken ex parte. Defendant No.8 supported the exchange effected by defendants Nos.1 to 4, while defendant No.6 was represented by the Court Guardian ad litem. The defendants Nos. 1 to 4 contested the suit, pleading that the wills effected by Budha were invalid and, therefore, their predecessor-in-interest, Muhammad Din, inherited the whole of the land left by Budha when he died and that since he was not a party to the compromise in the suit brought by defendants Nos.5 to 7, he was in no way affected by the compromise decree and, therefore, they were the full owners of the land given to the plaintiffs in exchange for the land in dispute. They denied that they had practised any fraud or misrepresentation on the plaintiffs to obtain the exchange and that the exchange deed was executed with the full knowledge of the facts. It was also alleged that the deed was acted upon and the land given to the plaintiffs in exchange had been partly in their possession and partly in possession of the mortgagees. The limitation was also pleaded and it was alleged that the plaintiffs were estopped by their conduct to sue.
17. The learned Senior Civil Judge tried the suit on the following issues:-
(1) Whether the execution of the exchange deed Exh.P.1 by plaintiffs was obtained by fraud or misrepresentation?
(2) Whether the exchange has not been acted upon and what is the effect?
(3) Is the suit within time?
(4) Are plaintiffs estopped from suing by word or deed?
(5) Relief.
18. Issue No.1 was answered in the negative, while issue No.2 was partly answered in favour of the plaintiffs against the defendants and the finding was to the effect that the exchange in dispute was inoperative as far as defendant No.4 was concerned, but was binding on plaintiffs so far as defendants Nos. 1 to 3 were concerned. On issue No.3, the finding was that the suit was barred by time as limitation had started to run from the date of the execution of the exchange deed. Issue No.4 was also decided against the plaintiffs and it was held that there was no evidence on record to show that Muhammad Sadiq was present at the time when the exchange mutation was sanctioned. As a result, the suit against defendants 1 to 3 was dismissed, but in respect of 1/4th share of defendant No.4, the suit was decreed.
19. In appeal before the learned District Judge, the judgment and decree of the learned Senior Civil Judge was modified to the extent that instead of one-fourth share, the suit was decreed against Fazal Din in respect of half share and dismissed against defendants Nos. 1 to 3 regarding the remaining half share.
20. Being dissatisfied with the judgment of the learned District Judge, Fateh Muhammad, Ibrahim, Ghulam Haider and Ghulam Rasool, Respondents Nos. 1 to 4, preferred a second appeal (R.S.A.No.55 of 1987) before this High Court, which was accepted on 9-2-1968. Whilst accepting the appeal, the learned Single Judge of this Court held that the exchange had been obtained by fraud and misrepresentation, that the exchange deed had not been acted upon by the parties, and that there was no covenant for title in the exchange deed and, therefore, the plaintiffs had the right either to cancel the bargain and get back their property or to obtain compensation for the loss suffered by it. On the question of limitation, the learned Single Judge held that the suit was within time. In view of the said findings, the judgments, and decrees of the Courts below were set aside and the suit was decreed with costs in favour of Fateh Muhammad and others, respondents Nos.1 to 5.
21. Ghulam Muhammad and others, appellants Nos.1 to 3, being aggrieved by the aforesaid judgment, preferred a letters patent appeal (I.C.A .No.118 of 1969) against the said judgment, which is now before us for disposal.
22. We have heard the arguments of the learned counsel for the appellants and the respondents and have perused the record.
23. So far as issue No.1 is concerned, namely, whether the heirs of Budha, deceased, had secured the exchange deed Exh.D1/P1 by practising fraud and misrepresentation, it is necessary to reproduce below a part of the exchange deed Exh.D1, the translation whereof appears in the judgment of the learned Single Judge at page 12-13: "The land measuring 212 Kanals 4 Marlas situate in Chak Bal No.47/RB, Tehsil and District Lyallpur devolves on the first party as inheritance of Budha, son of Sirbuland, caste Jat, resident of Bal Chak No.47/RB, Tehsil and District Lyallpur, the issueless deceased. Budha aforesaid deceased executed a will in favour of his grandsons (daughter's sons) namely Bashir, Rashid and Nazir, sons of Hayat Muhammad, caste Jat Goraya, residents of Bal Chak No.47/RB, Tehsil and District Lyallpur, during his lifetime merely to infringe the rights of reversionary heirs. The grandsons of Budha aforesaid, who was issueless, got executed the will of 3/4 share of the aforesaid land in their favour, in order to damage and infringe the inheritance rights of the real heirs and reversioners of Budha, by collusion, undue coercion, by persuading and defrauding Budha aforesaid and by deriving undue benefit of his old age. In order to strengthen the above will, they got executed and settled 1/4th share of the aforesaid inheritance of Budha, in favour of Muhammad Din, son of Fateh Din. That will was illegal, meaningless, void, ineffective and fictitious and was in no way effective on the inheritance rights of the reversionary heirs. Consequently, afterwards, Taleh Bibi, wife of Budha aforesaid got executed and transferred in her favour the said land through a written will, by persuading, defrauding and with collusion of Budha aforesaid, in order to cause damage to the rights of the reversionary heirs.
Consequently, the second will is also illegal, meaningless, void and ineffective and has no effect on the rights of inheritance of the reversionary heirs. After the death of Budha, issueless deceased, Muhammad Din son of Fateh Din caste Jat resident of Hamidpur Khurd, tehsil Gujranwala, became inheritor of the land owned by Budha, who has now died issueless. Now the first party is the lawful heir of the said land left by Budha aforesaid deceased and, therefore, the first party is competent to alienate it in every way."
' On 7-5-1949 when the exchange deed Exh.D1/P1 was executed, Budha had died and Muhammad Din had also died. The three appellants/ defendants and Fazal Din were the heirs of Muhammad Din, deceased, and had inherited his estate and since Muhammad Din was a beneficiary under the compromise decree Exh.P.4, it cannot be said that they had no knowledge of the said compromise decree. Mst. Taleh Bibi was alive on the date of the exchange deed. She is not referred to in the exchange deed as a deceased person. The trial Judge also found as a fact that she had died definitely much after 1948 i.e. After the Shariat Application Act had come into force. It is, therefore, obvious that she definitely was a beneficiary in the estate of Budha, deceased. The extract of the exchange deed quoted above clearly shows that the three appellants/defendants and Fazal Din showed themselves as full owners of the property of Budha, deceased. The said persons were, therefore, guilty of suggesting a fact, which was not true and which they knew and had reason to believe was not true. By the said representation, they obviously decieved or induced the respondents/plaintiffs to enter into the exchange with them. They are, therefore, guilty of fraud within the meaning of section 17 of the Contract Act. In this view of the matter, the exchange deed Exh.D1/P1 entered into by the respondents/plaintiffs was a deed voidable at their option, as their consent was secured through fraud.
24. The only question that now arises is whether the respondents/ plaintiffs had the means of discovering the truth with ordinary diligence, when they executed the exchange deed, for, if it be so, then they cannot avoid the said deed by virtue of the first Exception grafted to section 19 of the Contract Act. From the extract of the exchange deed quoted in para 23 above, it is apparent that the appellants/defendants not only pointed out that Bashir, Rashid and Nazir, respondents Nos.6 to 8, and Muhammad Din were beneficiaries under the first will, but also that Mst. Taleh Bibi, the second wife of Budha, deceased, was a beneficiary under the second will. If this be so, it is not possible to believe that Fateh Muhammad and others, respondents/plaintiffs, who were attempting to secure exchange of so large a tract of land as 222 Kanals and 4 Marlas from the appellants/ defendants in exchange for 161 Kanals and 11 Merles of land to be delivered by them to the others, would not have gone and made inquiries from the said Bashir, Rashid and Nazir, respondents Nos.6 to 8, or from Muhammad Din, or from Mst. Taleh Bibi as to whether they still had any claims to the land proposed to be transferred by the appellants/defendants in their favour and, if so, to what extent and how they justified the same. We firmly believe that the representation in the exchange deed was such as to place the respondents/plaintiffs on guard and compel them to make inquiries and if they had so made the inquiries, they would have been informed of the suit filed by Bashir, Rashid and Nazir, respondents Nos.6 to 8, against Mst. Taleh Bibi and Muhammad Din and the decree passed in their favour and the land passing to Muhammad Din through that decree, though he had not contested the suit. It is also obvious that Mst. Taleh Bibi was alive then and in view of the presence of the Enforcement of the Shariat Act, 1948. It was clear to the respondents/ plaintiffs that Mst. Taleh Bibi was a beneficiary of some land left by Budha. There was thus, no fact which was not within the easy reach of the respondents/plaintiffs and which they could not have been able to discover, if they had made a simple effort of discovering the truth with ordinary diligence. In this view of the matter, by the application of the first Exception to section 19 of the Contract Act, even assuming the consent of the respondents/plaintiffs was induced by the suggestion of a fact which was not true and was fraudulent within the meaning of section 16 thereof, the exchange deed is nevertheless not voidable, as the respondents/plaintiffs had the means of discovering the truth with ordinary diligence. We, therefore, agree with the findings of the learned trial Judge and of the first appellate Judge on issue No.1 and respectfully disagree with that recorded by the learned Single Judge on this issue and hold that the exchange deed cannot be avoided by the respondents/plaintiffs for fraud or misrepresentation.
25. We now take up issue No.2, namely, whether the parties had not acted upon the exchange deed and, if so, what is its effect. The learned trial Judge decreed the suit of the respondents-plaintiffs against Fazal Din, defendant, only in respect of one-fourth share of the land on the ground that the said defendant by his own acts had treated the exchange in dispute as inoperative and void, as he had treated the land given by him in exchange as being still his property and that in 1953, he had executed a sale-deed Exh.P.1 in favour of Muhammad Alam, respondent No.11, and Fateh Muhammad, respondent No.1 and exchange deed Exh.P.2 in favour of Fateh Muhammad respondent No.1, covering some of the land he had given in exchange. The learned trial Judge held that by these acts Fazal Din, defendant, had clearly induced the respondents-plaintiffs to believe that the earlier transaction of the exchange in dispute had become inoperative and void, so far as he has concerned, and as the respondent-plaintiffs had been made to change their position to their own detriment, Fazal Din, defendant, was estopped from claiming that the exchange in dispute was still operative. The respondents-plaintiffs challenged the said finding in their appeal before the learned District Judge, Gujranwala, but during arguments gave up their challenge to issue No.2. In this connection, the following extract from the judgment of the learned District Judge, Gujranwala, may be reproduced:- "With regard to the exchange having been acted upon as comprised in issue No.2 the trial Court held that the exchange in dispute is inoperative so far as defendant No.2 is concerned, but is binding on the plaintiffs so far as defendants Nos.1 to 3 are concerned. These findings as well have not been challenged before me by K.B. Ch. Muhammad Hussain, Advocate learned counsel for the appellants."
' However, during arguments, the learned appellate Judge noted that the learned trial Judge by inadvertance had referred to one-fourth of the property as belonging to Fazal Din, defendant, instead of half, with the result that after hearing and rejecting the arguments dealing with issue No.1 covering fraud, the learned District Judge, perhaps acting under section 152 C.P.C., accepted the appeal so far as it related to the remaining one-fourth of the property inadvertently not allowed, thus making it clear that decree was allowed for half of the property against Fazal Din and that the remaining half of the property would be retained by the appellants-defendants. In view of this position, it is clear that Issue No.2 was not agitated by the respondent-plaintiffs before the appellate Court, as it was given up. The circumstances in which the learned Single Judge proceeded to dispose of this issue in the second appeal leaves much to be desired, but it appears that his attention was not drawn to the fact that Issue No.2 was given up by the respondents- plaintiffs before the learned District Judge. We would, therefore, respectfully set aside the finding of the learned Single Judge on issue No.2 and restore the findings given by the learned trial Judge, as modified by the first appellate Judge, on this issue.
26. No other issue was seriously taken up or argued before us by any of the parties.
27. In view of the above, we hereby accept this appeal and restore D the judgment and decree of the District Judge. The appellants-defendants shall be entitled to their costs.