' Civil Revision No,92 of 1983 arises in the background of facts that Faqir Muhammad joining along his minor grand-daughter Mst. Tahira Bibi, herein petitioner, had brought a suit for declaration in respect of the inheritance of Mst. Khaibar Jan under a statement that the land belonged to Mst.
Khaibar Jan, the mother of Mst. Tahira Bibi, on whose death it devolved on her daughter Mst. Tahira Bibi and husband Kala Khan who had also later on died and his inheritance devolved on his daughter Mst. Tahira Bibi and father Faqir Muhammad and as such they were the owners in possession of the suit land and that mutation No,1488 earlier entered in the life-time of Mst. Khaibar Jan and attested after her death in favour of Shandad son of Walia was void and inoperative qua their rights. A decree for possession was prayed for in the alternative.
2. The suit was decreed whereagainst Shandad went in appeal.
' Faqir Muhammad had died pending appeal and he was substituted by his L.Rs, in his sons Gul.
Zaman and Mir Muhammad. Mst. Tahira Bibi's deceased guardian-ad-litem was also substituted by Gul Zaman her uncle. On 12-3-1983 Gul Zaman and Mir Muhammad recorded a statement that they were the respondents and also the guardian of respondent No,1, Mst. Tahira Bibi, and that they were to make an offer to Shandad appellant that he should take an oath on the Holy Qur'an that he had purchased the suit land from Mst. Khaibar Jan with her consent and had also paid the sale consideration to her then his appeal may be accepted. The offer made as above was accepted and Shandad was accordingly administered oath on the Holy Qur'an. He made a statement that he had correctly purchased the suit land from Mst. Khaibar Jan the mother of Mst. Tahira Bibi and duly paid the sale consideration to her and that he had committed no fraud. In view of the offer and acceptance as above followed/by the statement on special oath the appeal was accepted and judgment sand decree of the trial Court was set aside and the suit was dismissed whereagainst the present revision petition was filed by Mst. Tahira Bibi minor through her maternal grand mother's sister which was admitted to hearing for want of the compliance of the provisions of Order XII, Rule 7, C.P.C.
3. Mr. Fida Muhammad Khan, Advocate representing the petitioner raised the objection with reference to Order XXXII, Rule 3, sub-rule (4), C.P. C. That guardian of Mst. Tahira Bibi minor respondent before the appellate Court was not appointed after a notice addressed to her but in this regard he could not lay hands on a case-law that appointment of a guardian of the minor without notice to the minor is illegal. In fact what is required is that there shall be appointed a guardian of the minor defendant/respondent firstly the person who has been appointed as guardian by the competent authority in that behalf and in the absence of such guardian the father or in his absence other natural guardian or in the absence of the latter under whose care the minor is living and last if there is no other person fit and willing to act as his guardian the Court may appoint any official to be such guardian, always keeping in view the supreme rule to safeguard the interests of the minor. Reference was next made to Order XXXII, Rule 7, C.P.C. And it was contended that without express leave of the Court the guardian of the minor could not enter into an agreement or compromise on behalf of the minor with reference to the proceedings. Reliance was placed on 1983 CLC 99, an S.B. Authority of the Landre High Court, when in the circumstances of the said case there has been no abandonment of issues and the impugned judgment and decree was found based on compromise pure and simple since the parties had recorded a joint statement that pursuant to Allah Mahi having made the proposed oath the matter was compromised between the parties and judgment was based on the said statement and compromise. A reference in the said case was made to AIR 1936 Lah. 235 in which it was ruled that if the next-friend of the minor expresses his willingness to relinquish the claim of the minor, pursuant to an oath of the opposite party, it was only a special method of proof adopted by the next-friend and was not a compromise. The learned Judge had distinguished the facts of the case before him from the facts of the cited case as there has been no abandonment of other issues and the impugned judgment was considered purely based on compromise. The said judgment was also followed in an unreported judgment in C.R. No,118 of 1982, Circuit Bench, Abbottabad, decided on 14-9-1983, but the facts were again different as there has been no acceptance on behalf of the next-friend of the minor nor appointed guardian of the minor in the case and there was also no evidence forthcoming on record to show that the decree-holders were served for the date fixed in the appeal. On the other hand 18 Punjab Record 1891, a Full Bench authority, laid down a law that the next-friend of a minor plaintiff is competent to bind the minor by an offer under the provisions of the Indian Oaths Act, 1873 and that the oath or solemn affirmation by the other party to, or by any witness in such proceedings shall as against the minor be conclusive proof of the matter stated and the leave of the Court under the Code of Civil Procedure shall not be required. The said Full Bench Authority was followed in AIR 1936 Lah. 235 in complete consonance therewith. PLD 1966 Pesh. 137 had also laid down a rule that where the next-friend of minor recorded a statement that if the opposite party took an oath as to the consideration paid for the purpose of land in dispute the plaintiff minor would be bound by that statement although the trial Judge might not have recorded in so many words that the compromise was for the benefit of the minor but as it transpired that the Judge had applied his mind to the case and had come to the conclusion that the decision in the case was in the interest of the minor as such there cannot be taken any exception to a decision based on the proposed special oath of the opposite party. Reliance was also placed on AIR 1930 Cal. 463, a Division Bench Authority in which it was held that minor is bound by the consent of the guardian to abide by the deposition given by the opposite party on oath although without leave of the Court provided that there is no fraud or negligence on his guardian's part. AIR 1959 All. 93, again a Division Bench Authority, laid down a rule that there was no necessity for the next-friend or guardian for suit of obtaining the leave of the Court when he makes an offer to be bound by the statement on special oath by the opposite--party or a witness.
A plethora of case-law was referred to in the said judgment and the above ratio was deduced as a result of detailed discussion.
4. As far the facts of the present case are concerned Faqir Muhammad the grandfather of Mst.
Tahira Bibi, minor, had brought a suit on his own behalf as well as next-friend of Mst. Tahira Bibi minor and had claimed the inheritance of Mst. Khaiber Jan to have devolved on Mst. Tahira Bibi her daughter and Kala Khan her husband and on latter's death on Mst. Tahira Bibi daughter and Faqir Muhammad father. Mst. Khaiber Jan was also to have heirs other than her daughter and husband, in her parents, brothers and collaterals. It is said that Shandad the defendant in whose favour the impugned sale mutation was effected was her real brother but even still there was made no such statement in the plaint. In the list of L. Rs, of Faqir Muhammad and also Mst. Tahira Bibi the names of Gul Zaman and Mir Muhammad her uncles have been given and she has been first sued through her grandfather Faqir Muhammad in the appeal and when he died pending the appeal her guardian was substituted by her uncle Gul Zaman, again a natural guardian. The interests of her uncles in the proceedings were identical to her interests as they all were to retain a decree in respect of the suit land in success of the case and if in the circumstances there has been made an offer by the respondents for themselves as well as guardian of the minor that let Shandad make a statement on Holy Quran that the impugned sale mutation was effected in his favour for consideration paid and that he has not-played fraud on the mother of Mst. Tahira Bibi the vendor and on acceptance of the offer there was made a proposed statement of facts on special oath, the evidence as such must serve as conclusive proof of the matter as against the persons who offered to be bound by it.
5. In fine, there cannot be taken exception to the impugned judgment and decree of the appellate Court both on legal and factual plane and the revision petition, after having been found devoid of merit, is hereby dismissed with costs, to be paid by her next-friend in the person of her maternal grandmother's sister.