This is an application in revision by the defendant against the judgment and decree dated 3-4- 1988 passed by the District Judge, D.I. Khan, affirming those of trial Court dated 30-3-1987 decreeing the suit of the plaintiff.
2. Facts of the case, briefly stated, are that the disputed house as described in the title of the plaint originally belonged to one Mst. Asma t Bibi. By a registered sale-deed dated 25-6-1962, she sold it jointly to Gul Rehman's, plaintiff, and Rahim Bakhsh, father of Karim Bakhsh, defendant, in equal shares. It is claimed that northern half of the house fell to the share of the plaintiff while the southern half was allotted to the father of the defendant. Since there was no partition wall between the two portions of the said house, the plaintiff instituted a suit for possession by partition of his northern portion. The defendant then contested the suit and controverted the claim of the plaintiff by alleging that the plaintiff had sold his share of the house through his father on the strength of thirty unregistered sale-deeds dated 8th and 9th of May, 1967 and had also received the sale consideration there for through his father and thus the defendant had become the owner-in- possession of the entire house. The plaintiff on his part has attacked the alleged unregistered sale- deeds purporting to have been executed by his father Ghulam Qasim as forged, fictitious, fraudulent and without consideration and thus void and ineffective against his rights. The learned trial Judge framed as many as ten issues, but for the purpose of this revision, the following two issues, one of which is more of a statement rather than an issue, are material.
(8)Whether the unregistered sale-deeds, serial number of the register of petition-writer 392 to 415, 416 to 421 dated 8-5-1966 and 9-5-1966 from Ghulam Qasim the father of the plaintiff in favour of the defendant regarding sale of share of suit house are wrong, fictitious, fraudulent, without consideration and void and, therefore, are ineffective against the plaintiff's rights and are liable to cancellation and if the above documents are proved to be executed by the father of the plaintiff, even then they are wrong and illegal, because of minority of the plaintiff by that time and without notice and knowledge?
(9) Whether the plaintiff is entitled to the decree for possession through partition of 1/2 share out of the suit house mentioned in the plaint? `4 order dated
3. The learned Civil Judge, IV Class, D.I. Khan, by her 30-3-198'7 decreed the suit of the plaintiff. The defendant, feeling aggrieved, filed an appeal which too was dismissed by the learned District Judge, D.I. Khan. Hence this petition in revision.
4.During the pendency of this petition, the learned counsel appearing on behalf of the defendant- petitioner moved an application under Order VI, rule 17,;a C.P.C. For amendment of the written statement with a view to add the new plea of `Benami' and also of `bona fide purchase' by the defendant petitioner of the disputed portion of the house in suit, which were inadvertently omitted therein. This judgment will govern both this application and the revision petition.
5. Adverting to the application for amendment of the written statement, suffice it to say that amendment in the pleadings at the revisional stage is rarely granted in contra-distinction to such application being moved in the trial Courts A wherein the permission is not to be withheld normally.
Looking to the case in hand, it is apparent that if the petitioner is allowed to add the pleas of `Benami' and `bona fide purchase' in the written statement, it would change the complexion of the suit and destroy the rights of the other side which deserve protection by a Court. The two, pleas, which are now claimed, were not taken up at the appropriate stage and it is now too late in the day to accept the application for amendment and allow the petitioner to insert the two new pleas in the written statement. I am, therefore, not inclined to exercise this discretion in favour of the petitioner and his application for amendment of the written statement is dismissed.
6. The grund-norm of the defendant-petitioner's case is that he had purchased the share of the house in dispute belonging to the plaintiff-respondent on the basis of un registered sale-deeds what has been described as "through his father Ghulam Qasim", because the respondent was minor at that time.
7. Syed Zafar Abbas Zaidi, the learned counsel for the petitioner, however, contended- that the two Courts below have failed to appreciate that the respondent at the time of the purchase of the suit house was an infant having no means of earning and that the suit house was purchased by his father while the respondents was a `Benamidar' on behalf of his father Ghulam Qasim and thus the real owner having sold the suit house to the petitioner whose rights were protected being a bona fide purchaser for consideration and without notice. The learned counsel further argued that the two Courts below have fallen into an error to hold that the execution of the unregistered sale- deeds was far from proved, although a document could be proved by the production of a marginal witness and the mere fact that the marginal witnesses are somehow related to a party cannot outweigh their statements.
8. In support of his first contention, the learned counsel for the petitioner referred to "Khalid Javaid Abbasi v. Sharafat Ali Abbasi" (1984 CLC 1803). This authority, I am afraid, has no application to the facts of this case because the ratio therein was that the share-holders of property with minor could validly enter into an agreement to sell without prior permission of the Guardian Court. It was however, pointed out that there was no irregularity in approaching the Court of the Guardian Judge for permission for sale of shares of minors. In the instant case, the proposition falling for determination was as to whether Ghulam Qasim, father of his minor son, Gul Rehman's plaintiff- respondent herein, was competent to sell the minor's immovable property without the permission of the Guardian Judge as contemplated by law. Obviously the answer would be in the negative. In this context, section 11 of the Contract Act, 1872 (Act IX of 1872), is very clear which reads as under: "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."
This section mentions three kinds of disqualifications, namely, those H arising from (i) minority; (ii) insanity; (i.e) personal law. In regard to minority, it provides that' a person, who by reason of minority is not competent to make a contract within the meaning of section 11 ibid. A contract entered into by a minor, therefore, is null and void. Consequently, a minor is incapable of entering I into a valid contract of sale of his property either personally or through an agent who may be even his father. There is, however, one exception to this proposition of law, namely, that a guardian duly appointed after obtaining valid permission within the contemplation of Guardians and Wards Act, 1890 (Act VIII of 1890) may alienate the property of a minor and not otherwise.
9. It is not disputed that on the 8th and 9th of May, 1967, when the so --called unregistered sale- deeds were purportedly executed on behalf of the plaintiff respondent through Ghulam Qasim his father he was minor. Even if it is conceded that Ghulam Qasim had executed the sale-deeds acting on behalf of his minor son, or else the minor had executed those deeds, in both the eventualities, C the transactions evidenced by the impugned unregistered sale-deeds were void and must be regarded as a nullity in the eyes of law, and cannot be used for conferring any right or title on Karim Bakhsh.
10. The two pleas, namely, that the impugned transaction being `Benami' in the name of the plaintiff-petitioner and father of the plaintiffs-respondents being the real owner was competent to sell it and, that the defendant-petitioner's father was a bona fide purchaser for consideration without notice were not taken up in the written statement and that is why application for amendment thereof was moved in this Court. The said application, as indicated earlier, having no legal justification, has been dismissed by me. In the instant case, the principle of `secundum allegata et probata' is applicable to the circumstances of this case. The principle means that a fact has to be alleged by a party before it is allowed to be proved. This principle has been duly incorporated in Order VI, rule 2 and Order VIII, rule 2 of the Civil Procedure Code. . The rationale behind these provisions of the C.P.C. Is that if there is no pleading about a specific plea, the opposite party would have no opportunity to controvert the same and consequently neither any issue thereon would be framed nor any evidence could be adduced. In the instant case too, the two pleas having not been specifically taken up in the written statement, the defendant- petitioner would neither be allowed to plead them nor any evidence could be led and even if it was adduced, it could not be looked into. The contention raised on behalf of the petitioner, on this score, therefore, stands repelled.
12. I have decided to refrain from making any observations on the controversy on the question of the propriety and genuineness or otherwise of the alleged sale-deeds. Nonetheless, the two Courts below have found the issues reflecting these pleas against the defendant-petitioner and I do not find any wrong with those findings. Be that as it may, the finding on the first part of issue No.8 of the two Courts below does not affect the merits of the case as it has been concurrently held by both the Courts below that the alleged sale of the disputed share of the house by the father of the plaintiff-respondent during latter's minority was void. Both the Courts below have, therefore, correctly concluded that F the claim of the plaintiff respondent to the title of the disputed portion of the house cannot be denied by the defendant-petitioner on the strength of the alleged unregistered sale-deeds.
13. The learned counsel for the petitioner having failed to make out a case for misreading or non- reading of evidence on the crucial question of the validity of the alleged sale of the disputed house by virtue of the unregistered sale-deeds justifying interference in revisional jurisdiction and having also failed to show that Courts below committed any irregularity amounting to illegality has pressed into G service the application for amendment of the plaint which I have already disallowed.
14. After hearing the learned counsel for the parties, I am of the considered opinion that it is not a fit case where I should exercise discretion under section 115 of the Civil Procedure Code. This revision petition has no merit and is hereby dismissed with no order as to costs.