This civil revision has arisen from a suit, by Mst. Abdara daughter of. Muhammad Sher and wife of Shams-uz-Zaman, brought against Salim Khan and others, defendants/respondents herein. The suit was for declaration of her title to and confirmation of her possession over her share in the land measuring 177 Kanals 16.Marlas bearing Khasra Nos. 2437, 3437/1 and 2443, Khata No.281/549 and situate in village Yaqubi, Tehsil and District, Swabi or in the alternative for possession of her aforesaid share in the property of her father Muhammad Sher. The- suit was dismissed by a learned Civil Judge, Swabi on the 16th of May, 1989. An appeal filed before the learned Additional District Judge, Swabi was also dismissed on 28th June, 1990. Hence this revision petition.
2. The allegations on which the suit was founded were that she had inherited the disputed land from her father who died under the domain of Muslim Law. The plaintiff and the defendants succeeded to the estate as Muslim Law heirs and that she had been in possession of her share of the disputed property by receiving her share of produce from the defendants. About a year prior to the institution of her suit on 3-12-1983, she intended to alienate some of the land aforesaid and on inspection of the record it transpired that defendants Nos. 2 to 6 had alienated their share including the plaintiff's share in the disputed land to defendant No.l and thus on these wrong entries Mutations Nos.6029 and 6030 had been attested on behalf of defendants Nos. 2 to 7 in favour of defendant No.l on 7-10-1971, the propriety and validity of which had also been challenged in the suit. It has been further urged that the plaintiff was a `pardahnashin' lady who had neither sold any land nor she had received any sale consideration or thumb-impressed the registered sale-deed or any mutation or she had made any statement to any local Commissioner consenting to the attestation of registered sale-deed or any mutation.
3. In defence, in two sets of written statements, it was contended on behalf of the defendants that Mst. Zulekha, mother of the plaintiff, had by virtue of registered sale-deed dated 13-10-1938 not only sold her own share but had also disposed of the share of the plaintiff. It was further averred that the sale aforesaid was successfully pre-empted by one Purdil predecessor-in --interest of defendants Nos. 1 to 6, on whose death it devolved upon the last --mentioned defendants. Defendants Nos. 2 to 6, it is maintained, in turn sold it to defendant No.l by Mutations Nos. 6029 and 6030 attested on 7- 10-1971 who was in possession thereof as a full-fledged owner. A few legal objections including that of limitation were raised on the contention that the plaintiff's suit having been instituted after 35 years of the said alienation was barred by limitation. The defendants by their exclusive possession as full owners over the property to the knowledge of the plaintiff for over 35 years have also acquired prescriptive ownership over it.
4. The pleadings of the parties gave rise to as many as 14 issues but for the purposes of this revision the findings of the two Courts below were mainly challenged on the following issues:- (1)Whether the suit is within time?
(5)Whether the plaintiff is an owner in possession of the suit land?
(8)Whether the mother of the plaintiff has sold the suit land to Shahdad and Sherdad, if so, its effects?
(9)Whether the entries in the Revenue Record are wrong against facts and collusive and Mutations Nos. 6029, 6030 attested on 7-10-1971 in the column of cultivation are void and ineffective against the rights of the plaintiff?
The decision of the learned trial Judge on issue No.1 was that the disputed land was sold on' the basis of registered deed through her mother in the year 1938 when the plaintiff was minor and the suit having been brought by her long after attaining majority was barred by limitation. He took up issues Nos.5, 8 and 9 together and held against the plaintiff. The remaining issues were not pressed before the learned trial Judge by the learned counsel for the parties and were thus decided in the negative. On appeal the learned appellate Court affirmed these findings and dismissed the appeal. Hence this revision.
5. Haji Z. Mahfuz Khan, learned counsel for the petitioner contended on the authority of Ghulam Ali and others v. Mst. Ghulam Sarwar Naqvi and others PLD 1990 SC 1 that the sale-deed having been registered in the year, 1938 against the petitioner, the impugned sale mutations attested on 7-10- 1971, after the failure of the petitioner to challenge it for a long period, would not constitute such a conduct which would render the respondents' possession as adverse to her. It was next contended that Mst. Zulekha, mother of the petitioner, being not the guardian of the property of the petitioner could not have legally transferred the share of the petitioner to Shahdad and Shah Madar sons of Fazal Baig and Purdil. In this context, reliance was placed on the cases of: (1) Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1965 SC 690 and (2) Mst. Subhan Bibi and another v. Mst. Musarrat Jabeen and others PLD 1969 Kar 563. In the former authoritative pronouncement B. Z. Kaikaus, J., as his Lordship then was, re-affirmed the following dictum:- "In Muhammadan law the only guardians of property of a minor are the father or the executor of the father or the person appointed as guardian by his will and the grandfather or his executor or the person appointed as guardian by his will. The father's brother is nowhere in the list of guardians.
In Imam Bandi v. Din Mutsaddi (451 A 73) the Privy Council had found the mother to be in the position of a stranger as regards the property of her children and the position of an uncle is no better than that of a mother for all who are not included among the guardians mentioned above are strangers. If the plaint does not mention that there was an agreement by the minors through a guardian it amounts to this that no legal agreement had been alleged so far as these two plaintiffs are concerned."
In the latter case of Mst. Subhan Bibi, Dorab Patel, J., as his Lordship then was, followed the dictum of the Privy Council in the case of Imam Bandi referred to above in the judgment of the Supreme Court in Abdullah Khan's case cited above and held that a de facto guardian of the children had no power to alienate the property and the partition was prima facie illegal.
6. Haji Muhammad Zahir Shah, learned counsel for the respondents, on, the other hand, invoked the provisions of section 6 of the Limitation Act, 1908 and contended that the onus was on the petitioner who sought to bring her case within time by virtue of disability provisions to prove that the suit was instituted within the period allowed by the Limitation Act and that having utterly failed to discharge this burden the suit was barred by time under Article 44 of the -Limitation Act.
According to the learned counsel, on 13-10-1938, when the registered sale-deed regarding the suit land was executed by her mother the petitioner was 7 years of age and thus attained majority on 12-10-1949 and, therefore, declaration should have been sought within six years under Article 120 and possessory relief should have been claimed within 12 years either under Article 142 or under Article 144 of the Limitation Act and thus the suit brought on 3-12-1983 was hopelessly barred by time. In support of this proposition reference was made to Mahmood Khan v. Muhammad Hasan and others (1991 SCM R 1566). The learned counsel further urged that the suit was bad for non- joinder of the original vendees, namely, Shah Madar and or their successors-in-interest and further that the pre-emptive. Decree in favour of Purdil had not been challenged. Lastly, he submitted that the plea that original transaction of sale was void ab initio having not been taken up in the suit or in the appeal could not be agitated at the revisional stage.
7. This is a settled proposition that under the Muslim Law mother is not a de- jure guardian. She is only a de facto guardian--a bare custodian of property--has got no authority of full disposition of a minor child's property. The irresistible conclusion, therefore, is that the sale of the suit property belonging to the petitioner by her mother Mst. Zulekha was void. Article 44 of Schedule I of the Limitation Act, 1908 prescribed a period of 3 years within which a ward who has attained majority may sue to set aside transfer of his property made by his lawful guardian. Article that applies to a transfer by a de facto guardian, as is the case in hand, is Article 144 read with section 8 of the Act, which prescribes a period of 12 years from the time when the possession of the respondents became adverse to the petitioner. In consequence, the finding of the two Courts below that mother of the petitioner has validly sold the property of the petitioner is set aside. It is obvious that she had no authority to sell the petitioner's property but since the petitioner has not filed the suit within 12 years i.e. From 12-10-1947 to 12-10-1959, and had instead filed the suit in the year 1983, therefore, the suit for declaration is barred under Article 120 and for possessory relief it is barred under Article 144 ibid. In this context, the latest authority of the Supreme Court in the case of Mahmood Khan cited by the learned counsel for the respondents is applicable to the case in hand.
8.It is, therefore, held that the petitioner was minor when the sale of her land was made by her mother in favour of the original vendees through a registered sale-deed dated 13-10-1938 from whom it was successfully pre--empted by the predecessor-in-interest of Purdil. He in turn had sold it to respondent No. 1 in the year 1971. Admittedly, the petitioner attained majority on 12-10-1947 while the present suit was brought on 3-12-1983. Thus p the suit is clearly barred by time and the two Courts below have rightly held it so.
10. In view of what has been discussed above, this petition has no merit, which is accordingly dismissed. There shall, however, be no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.