' Noor Ahmad and Sultan Ahmad, defendants-respondents are real brothers and Aftab Ahmad plaintiff-respondent is the son of the former. They had 28 Kanals and 11 Marlas of land in village Sharqpur, District Sheikhupura. It was purchased by Barkat Ali petitioner-defendant vide registered sale-deed dated 9-7-1960 (Exh.D.5). Admittedly at that time Aftab Ahmad was minor and his share was sold by his father Noor Ahmad, consideration received and possession delivered.
2. Aftab Ahmad filed a suit for possession of his 1/3rd share (9 Kanals 10 Marlas) of the suit land against Barkat Ali and impleaded his father Noor Ahmad and real uncle Sultan Ahmad also as defendants. His precise averment in the plaint was that at the time of sale he was minor so his father and uncle could not sell his land and so the same being without any authority, was illegal and void. The suit was contested by Barkat Ali and the following among other issues were settled:-
(3) Whether the plaintiff has no right to file the suit?
(9) Is the sale in dispute an act of good management? (translated by the learned Additional District Judge as "Whether the sale of the disputed land is proper"?)
(10)Whether the defendants 2 and 3 were not entitled to sell the share of land belonging to the plaintiff?
3. Learned Civil Judge, Ferozewala vide judgment dated 10-5-1976 answered the above issues in favour of the plaintiff and decreed the suit. The petitioner preferred an appeal but without success.
The same was dismissed by the Additional District Judge, Sheikhupura on 8-3-1978. Aggrieved of the judgments and decrees of the two Courts below, he has come up in revision.
4. The essential facts seem to be admitted. Aftab Ahmad plaintiff was minor on 9-7-1960 when the registered sale-deed (Exh.D.5) was executed by his father Noor Ahmad and uncle Sultan Ahmad in favour of Barkat Ali defendant. Share of Aftab Ahmad was sold by his father Noor Ahmad. Both the Courts below relied upon the enunciation of Muslim Law by Mulla in his book in para. 362, regarding the power of the natural guardian i,e. The father while disposing of the immovable property of his minor son. As the property was not-sold at double the value of the market price, so it was held to be not valid and legal.
5. This very point has been argued in revision. Learned counsel for the petitioner has further contended that the oral and the documentary evidence was not appraised in proper perspective nor any conclusion natural and logical flowing therefrom was drawn to determine the matter He made pointed reference to the following facts:- ' In sale-deed (Exh.D.5) it is clearly recited that the land was being sold for Rs,5,000 as money was needed for the construction of the house at Gujranwala town. It is also represented in this very deed that Noor Ahmad the guardian of Aftab Ahmad minor had protected the rights and interests of his minor son in every manner and the sale proceeds would be spent towards the share of Aftab Ahmad in the under construction Bungalow No,45-A, Satellite Town, Gujranwala. The family house of Aftab Ahmad, his father and uncle at Sharqpur was mortgaged by the latter two vide deed (Exh.D.17) on 7-2-1962 when Aftab Ahmad was still minor. When he had come of age this very house was sold by all the three jointly vide registered deed (Exh.D.9) on 3-10-1968. In this deed the address of Aftab is clearly given as '45-A, Satellite Town, Gujranwala'. The remaining agricultural land of the three in village Sharqpur was also sold by the father and uncle vide mutations (Exhs.D.18 and D.4) dated 1-11-1960 and 4-4-1962 respectively. Barkat Ali defendant (D.W.3) in categorical and express terms stated that when the suit land was sold wife of Noor Ahmad (who is described as doctor Noor Ahmad in the statement) had inherited some property in Gujranwala from her parents, the family shifted to Gujranwala, had no house over there, rented one and then started constructing a bungalow and also started selling their agricultural land. The whole of the land and property in the village had been disposed of and permanent residence shifted to Gujranwala where they were residing in 45-A, Satellite Town. He was not contradicted in cross-examination on these aspects. Aftab Ahmad himself (P.W.1) admitted that the land was sold by his father and uncle jointly and no more land in the village was left. He also admitted that he and his father had sold their house in Sharqpur as well. He also stated that the house in Sharqpur which was on mortgage had also been sold by him and that no property of theirs had been left in the village and they had permanently shifted to Gujranwala. He also told that when the bargain for the plot at Gujranwala was settled he was minor but denied that with the money obtained on the sale of land by his father and uncle , Bungalow No,45-A, Satellite Town, Gujranwala had been constructed. He, however , admitted that the said bungalow was completed in the year 1965. This clearly means that when the disputed land was sold Bungalow No,45-A, Satellite Town, Gujranwala had still not been completed.
Learned counsel for the petitioner on the basis of the above documentary and oral evidence further pointed out that neither the father nor the uncle had been put in the witness-box nor the plaintiff himself had pleaded in the plaint or stated in the witness-box that his father was a spend- thrift and not a man of upright character or had wasted the property or not properly utilised the funds raised for the benefit of the minor. Argument was built up and correctly that Noor Ahmad and Sultan Ahmad had sold their immovable property in village Sharqpur shifting their residence to Gujranwala permanently and it cannot be said that the plaintiff-respondent had no share in Bungalow No,45-A overthere or the land was not sold for his benefit or as a measure of good management. Finding on issue No,3 is accordingly recorded in favour of the petitioner-defendant.
6. The crux of the matter lies in the enunciation of Muslim Law, whether the father as such and being the natural guardian of the minor plaintiff could have sold the property on his behalf. Land measuring 28 Kanalsand 10 Marlas was sold by N )or Ahmad and Sultan Ahmad including 1/3rd share of the plaintiff-respondent for Rs,5,000. The share of the petitioner was, therefore, not more than Rs,2,000. Lands in the village were sold vide documents (Exhs.D.10, 11, 12 & 13) and as correctly brought out by the learned Additional District Judge, the sale price was from Rs,106 to Rs,140 per Kanal while the suit land was sold at the rate of Rs,165 per Kanal. It, therefore, cannot be said that the suit land was just thrown away. Should in such circumstances the principle that double the price of the market value had not been obtained, so the transaction could not be held to be legal and valid, strictly applied? It was also argued by the learned counsel that this enunciation of obtaining double the price than the market value to make a transaction valid on behalf of the minor, entered into on his behalf by his natural guardian i,e. The father, was not based upon any authentic text i,e. The Holy Qur'an or the Sunnah of the Holy Prophet (peace be upon him), the primary sources of Muslim Law. I am inclined to agree with him. He referred to Muhammadan Law by Syed Amir Ali Vol. II 1965 Edition published by All Pakistan Legal Decisions, Nabha Road, Lahore where at page 503 the principle deduced is that natural guardian may sell the immovable property to a stranger for double its value or where it is to the manifest advantage of the ward. As discussed and concluded above, the family had sold away their property including the house at Sharqpur, had permanently shifted to Gujranwala Bungalow No,45-A, Satellite Town over there in which as per the representation made in the registered sale-deed (Exh.D.5) the plaintiff- respondent had a share and the money raised by the sale had been spent thereon. It was, therefore, clearly an act of good management and of manifest benefit to the plaintiff. Learned counsel for the petitioner further relied upon Fatawa Alamgiri Vol.4 published by Sh. Ghulam Ali & Sons, Kashmiri Bazar, Lahore (p.554), the principle of Islamic Law enunciated is tiat sale by father at the market price (Misl Qeemat), the father being of good reputation/character was valid. The principle has been extended to say that the sale would also be valid if it is also for the benefit of the minor. I would, therefore, not approve the enunciation that to make the sale of immovable property by father on behalf of his ward valid, double the price is a must, rather the father being of good character and reputation, the transaction entered into, by him on behalf of his ward would not be invalid if the market price has been obtained or it is for the manifest advantage of the ward or as an act of good management.
7. The upshot is that the revision petition is accepted. The judgments and decrees of the two Courts below are hereby set aside and the suit dismissed. The parties are, however, left to bear their own costs throughout.