' RAJA MUHAMMAD SABIR, J.--This regular first appeal arises out of the order of the learned Civil Judge Ist Class, Faisalabad dated 6-11-1994, whereby he refused to set aside Award, dated 22-1- 1991 and made it Rule of the Court.
2. Brief facts of the case are that the land in dispute, approximately measuring 14-1/2 acres, was undeniably owned by Muhammad Hussain son of Darghai Shah. He had two sons, namely Muhammad Saeed and Muhammad Shafique and four daughters, namely Mst. Farhat Iqbal, Mst.
Naseem Bibi, Mst. Saleema Bibi and Mst. Manzoor Bibi. Dispute arose among them when Muhammad Saeed got prepared general power of attorney from his father Muhammad Hussain in favour of his own son Muhammad Ahsan. Power of attorney was registered with the Sub-Registrar, Faisalabad on 23-4-1988 and in pursuance thereof a sale-deed dated 27-4-1988 was got executed by the said Muhammad Saeed in his own name from the said son Muhammad Ahsan as Attorney of Muhammad Hussain. Transferring to him land measuring 51 Kanals 5 Marlas, and consequently Mutation No,2352 was also sanctioned on 16-6-1988 in his name. Upon getting knowledge thereof Muhammad Shafique the other son of Muhammad Hussain filed an application on 10-7-1990 under section 62 of Lunacy Act for declaration that Muhammad Hussain his father was lunatic. Another suit for declaration and cancellation of the aforementioned Power-of-Attorney, sale-deed and mutation was filed on 19-1-1990 by Muhammad Hussain through Muhammad Shafique as his guardian, categorically pleading that Muhammad Hussain was an old man of 100 years of age, he was almost blind, and was incapacitated. Further it was alleged that Muhammad Hussain was mentally deranged and he was in wrongful and illegal confinement of Muhammad Saeed.
Similarly. Mst. Farhat Iqbal also filed an application on 5-8-1990 under section 62 of the Lunacy Act for her appointment as guardian of the property of Muhammad Hussain. In the said petition, the learned District Judge, Faisalabad granted status quo order with regard to the property of the lunatic Muhammad Hussain whereupon Muhammad Saeed and Muhammad Shafique joined heads together, and prepared a false and forged Arbitration Agreement dated 31-7-1990 referring the matter regarding the sale-deed in favour of Muhammad Saeed as well as the inheritance of the land of Muhammad Hussain to the arbitration of Ch. Fateh Muhammad, respondent No,5. This was done behind the back of the appellants and respondents 3 and 4 the other two daughters of Muhammad Hussain. Moreover, it was during the pendency of the proceedings under the Lunacy Act as well as the suit filed by Muhammad Hussain through Muhammad Shafique as his guardian.
After the said collusion between Muhammad Saeed and Muhammad Shafique the suit filed by Muhammad Hussain through Muhammad Shafique as his guardian was withdrawn on 19-11-1990 and according to the appellants it was done without their knowledge and respondents 3 and 4.
Fateh Muhammad the so-called Arbitrator, gave an Award on 22-11-1991 holding inter alia that the land measuring 14-1/2 acres owned by Muhammad Hussain should be divided by the two brothers, Muhammad Saeed and Muhammad Shafique, in equal shares. All the four daughters were completely ignored. The Award was filed on 27-1-1991 in the Court of learned Civil Judge Ist Class, Faisalabad for making the same Rule of the Court. Thereafter, Muhammad Shafique withdrew on 7- 2-1991 his petition under section 62 of the Lunacy Act. When Mst. Naseem Akhtar came to know about the filing of the application under section 14 of the Arbitration Act, she filed on 9-3-1991 an application before the learned trial Judge for her impleadment as a party. The said application was accepted and she became party in the proceedings. In the application under section 62 of the Lunacy Act filed by Mst. Farhat Iqbal, the learned District Judge, Faisalabad, made a reference to the Medical Superintendent, District Headquarters Hospital, Faisalabad, for determination of mental status of Muhammad Hussain. On 7-3-1991, the Medical Superintendent, District Headquarters Hospital, Faisalabad, reported on the basis of the examination conducted by Dr.Shaukat Ali Zahid, Assistant Professor of Psychiatry, that Muhammad Hussain was an old man of about 85 years of age, was having Physiological consequence of his advanced age, i,e, he was hard of hearing, had poor memory and comprehension. It was further observed that he had bilateral advanced cataract and that said ailments had contributed towards his "impaired mental capabilities rendering him incapable of managing his affairs adequately". Similarly, earlier on 12-11-1990 Ch. Maqsood Ahmad, Advocate, who had been appointed as Local Commission by the learned District Judge, Faisalabad, had reported that Muhammad Hussain was a mentally deranged person.
During the pendency of the application under section 14 of the Arbitration Act and the Lunacy Act and the existence of status quo order granted by the learned District Judge, Faisalabad.
Muhammad Ahsan on the basis of Power-of-Attorney referred to above executed another sale- deed on 19-12-1991 in favour of Muhammad Shafique, transferring to him land measuring 16 Kanals 13 Marlas, owtted by Muhammad Hussain. Muhammad Khawar Shafique, a son of Muhammad Shafique candidly admitted during the proceedings that there was a stay order operative regarding the entire property of Muhammad Hussain.
3. Muhammad Hussain died on 31-12-1991. Thereafter, his widow and the other three daughters including Mst. Farhat Iqbal appellants No,1 were impleaded as parties. They were awarded opportunities to file reply, They filed reply wherein they opposed to the application and pleaded that the award be set aside and may not be made Rule of the Court. After framing issues and recording evidence of the parties, the learned trial Judge passed the impugned order whereby the alleged Award, dated 22-1-1991, was made Rule of the Court.
4. Learned counsel for the appellants contends that Muhammad Hussain was mentally deranged.
He was not a man of sound mind hence, neither he could execute the impugned agreement for arbitration nor he had voluntarily executed any general power of attorney. He further argued that respondents 1 and 2 fabricated the documents in their favour to deprive their four sisters of land belonging to Muhammad Hussain. Although succession had not opened under the Islamic Laws as it could not open only on the death of the owner namely Muhammad Hussain.
5. Learned counsel for the respondents on the other hand contends that the order of the Court below was valid and the documents executed by Muhammad Hussain are in accordance with law hence, the appeal is without any substance and is liable to be dismissed.
6. We have carefully gone through the record of the trial Court, available on the file and have examined the evidence adduced by the parties. It is an admitted position that the application under section 62 of the Lunacy Act was pending prior to 31-7-1990 when the arbitration agreement was executed. Muhammad Hussain was not competent to enter into any agreement regarding the property in dispute being not a sane person. Even according to the version of respondents Nos.1 and 2 also the application was pending under section 62 of the Lunacy Act as such Muhammad Hussain could not enter into any valid agreement being a man of impaired capabilities. Sons of Muhammad Hussain could not refer the matter to arbitration as during his lifetime they could not become the owner of the disputed land. General power of attorney also does not inspire confidence and appears to be forged and fabricated document. Arbitration agreement has been signed by Muhammad Saeed and Muhammad Shafique also who were not the owner of property of Muhammad Hussain during his lifetime, hence, they were not entitled to make any reference to arbitration. The arbitration agreement on this ground also cannot be sustained so far as Muhammad Hussain is concerned besides the fact that he was not a man of sound mind and as such could not enter into any valid agreement. The appointment of arbitrator by itself being unlawful, the arbitration agreement is void ab initio. The planning of the brothers was to deprive their sisters from inheriting legal share from the property of their father Muhammad Hussain. On the one hand Muhammad Shafique son of Muhammad Hussain had approached that Court for a declaration that he was not a person of sound mind and on the other hand sale deeds have been executed on the basis of forged documents. Application under section 62 of the Lunacy Act was filed even by one of his sons. Whether Muhammad Hussain could enter into any valid agreement regarding his property is legal question of general importance. In this connection reference may be made to section 11 of Contract Act, 1872 which reads as under:-- "11. Who are competent to contract.--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."
' Bare reading of the above said provision clearly contemplates that only a person who is of sound mind can enter into valid contract. In the present case we find that Muhammad Shafique son of Muhammad Hussain had submitted an application under section 62 of Lunacy Act, 1912, alleging therein that Muhammad Hussain was not a man of sound mind, hence proceedings under section 62 of the above said Act were initiated. Subsequently Muhammad Hussain himself through Muhammad Shafique challenged the alienation by filing a declaratory suit for cancellation of sale- deed and mutation, which was subsequently withdrawn on 19-11-1990 without knowledge of the appellants. Thus, Muhammad Hussain could not enter into a valid arbitration agreement and, therefore, the entire proceedings pursuant thereto including the impugned Award are patently illegal. Besides, Mst. Farhat Iqbal had also submitted an application under section 62 of Lunacy Act on 5-8-1990 before the District Judge, Faisalabad to the same effect with the same prayer wherein order for status quo was passed. Arbitration agreement was executed by both the brothers namely Muhammad Saeed and Muhammad Shafique and their father Muhammad Hussain himself on 29- 7-1990. Petition under section 62 of Lunacy Act was pending before the District Judge when this Arbitration agreement was executed and one of the signatory namely Muhammad Shafique was an applicant under section 62 of the Lunacy Act which was filed by him on 10-7-1990. Muhammad Hussain was the owner of the property and during his lifetime Muhammad Shafique and Muhammad Saeed being his sons could not inherit because under the Muslim Law inheritance of the Muslims opens on the death of the owner. Admittedly the property was in the name of Muhammad Hussain. Muhammad Shafique and Muhammad Saeed could not enter into any arbitration agreement as they were not the owners of the land in dispute at that time and admittedly Muhammad Hussain the real owner had not only sons but daughters as well. The question whether the arbitration agreement and the transactions on behalf of Muhammad Hussain can, at all, be held valid needs serious consideration. Registration of sale-deed by a person of unsound mind through 1 his second friend is devoid of validity.. This question was examined by one of us (Mr.Justice Malik Muhammad Qayyum) in the judgment reported as Sultan and others v. Nazar Sultan PLD 1993 Lahore 232. It was held that whether a person was or not of sound mind is for the parties to produce evidence to establish these facts, but in matters brought before the Court under the Lunacy Act, 1912, the Court acts in locus parentis and lis, strictly speaking, is not inter parties. And, even if in such proceedings sufficient evidence is not brought on record, it becomes the duty of the Court, acting as guarding of the lunatic to protect his property. In these contexts it was observed as follows:-- "....The scope of two proceedings is entirely different. In matters brought before the Court under the Lunacy Act, 1912, the Court acts in locus parentis and lis, strictly speaking, is not inter parties. In these proceedings, if sufficient evidence is not brought on record, it becomes the duty of the Court, acting as guardian of the lunatic to take all possible measures to protect his interest. However, in an inter parties dispute, it is for them to prove their cases by leading sufficient evidence. This distinction becomes clear from following pages at page 1380 of Mst. Jamila Begum v. Awamun Nas etc. PLD 1978 Lahore 1376:--
(9) The learned District Judge has treated this case as that of a dispute between party and party who are thereby thrown into the vortex of litigation, the intention of one party being merely to hit the other or to avenge itself.
(10) This is not the object of the Lunacy Act. This Act confers upon the Courts the powers of pater patriae as a father over his children. The Act deals with the care of lunatics and idiots in the same manner as the Guardians and Wards Act provides for the inherent prerogative of the Courts acting as a prudent natural parent of, the infant.
(11) The object of inquisition is to find out whether is, in fact, of unsound mind or idiot to bring him within the four corners of the Act and after finding him so disabled to look after his person and property and to make arrangement for their custody. The learned District Judge has found in this inquisition Abdus Salam to be a lunatic and yet has dismissed the application without making proper arrangement of his property which to all intents and purposes is the motive force behind the application under the Act."
7. Similarly in another case reported as Amiruddin Khan v. Atta Mohyuddin Khan and others holding that Court while proceeding under section 62, Lunacy Act, 1912, must first satisfy itself by inquiry and personal interview with alleged lunatic that there was a proper ground for embarking upon inquisition--where Court, after examining alleged lunatic considered it unnecessary to proceed further, it had power to drop proceedings relating to inquisition--holding of interview with alleged lunatic for testing soundness of his mental health was a permissible course in law. The relevant observations which are (A&B) at pages 379 and 380 see as under:-- "(A) Therefore, the Judge holding the proceedings under section 62 of the Lunacy Act, 1912, must first satisfy himself by inquiry and personal interview with the alleged lunatic that there is proper ground for embarking upon inquisition. Having due regard to provisions in section 62 of the Act, if the Court after examining the alleged lunatic considers it unnecessary to proceed further, it has power to drop the proceedings in the matter of inquisition. In Vemasanin Narasamma v. Vemasani Rama Naidu and another AIR (38) 1951 Madras 648, it was observed that where an application is made for directing an inquisition, the first thing which has to be done is that the Judge, either with notice to the lunatic or without notice, should carefully consider, whether the case is one which calls for an order directing an inquisition.....
(B) Therefore, holding of an interview with the alleged lunatic for testing of the soundness of his mental health appeared to be clearly a permissible course in law. As observed above, not only the learned Additional District Judge but by a learned Judge of this Court also, the behaviour of the alleged lunatic was found normal. In view of mental health of Wazirud Din, he could not be found to be a lunatic. It follows, therefore, that the appeal fails and is dismissed with costs and the judgment of the Court below is affirmed."
8. Another important judgment on the interpretation of section 62 of the Lunacy Act, 1912, is reported as Abdul Salam and 4 others v. Abdul Rashid and another, 1988 M LD 579); the relevant passage in the judgment is reproduced below:-- "I am of the opinion that where an application is made for directing an inquisition for the purpose of ascertaining whether a person is of unsound mind and incapable of managing his/her own affair the first thing which has to be done is that a notice shall be given to the alleged lunatic of the time and place at which it is proposed to hold inquisition. In my opinion an order directing an inquisition into a man's or woman's state of mind is very serious thing, and such an order is intended by the State to be a judicial determination carefully made upon adequate materials. If the Judge considers that it calls for an order directing an inquisition, then it is his/her obvious duty to record an order directing an inquisition. When once that is done, then the application has served its primary purpose. The Judge should then take certain steps with regard to notice and such notice should be given as provided by section 64 of the Act. Thereafter, he/she should hold the inquisition either by himself/herself or with the aid of assessors."
9. The above said judgment makes it abundantly clear that once a matter is brought before the Court through application under section 62 of the Lunacy Act, 1912, then a person who is alleged to be lunatic must be examined in the light of the observations made above and further steps may be taken thereafter.
10. In the present case the application was made by Muhammad Shafiq to the District Judge, Faisalabad, who was under duty to asertain mental capacity of Muhammad Hussain. Muhammad Shafiq withdrew the application and entered into an arbitration agreement, got it signed from Muhammad Hussain also and referred the matter to the Arbitration who filed the award in the Court on 27-1-1991 and subsequently Muhammad Shafiq son of Muhammad Hussain withdrew his application under section 62 of the Lunacy Act, 1912, on 7-2-1991 and the award has subsequently been made Rule of the Court vide impugned judgment by the learned Civil Judge, Faisalabad.
11. Muhammad Shafiq and Muhammad Saeed admittedly were not the owners of the property regarding which arbitration agreement was executed by them. It was Muhammad Hussain, who, according to showing of Muhammad Shafiq his son was an owner. He has already submitted an application before the learned District Judge and the said application was pending at the time of arbitration agreement. The arbitration agreement itself was in violation of section 11 of the Contract Act and was void ab initio as Muhammad Hussain could not enter into any valid contract.
Therefore, all the proceedings based on the said Arbitration agreement dated 314-1990 are illegal and stand vitiated. In fact it appears that Muhammad Shafiq and Muhammad Saeed in order to deprive their sisters of the property of Muhammad Hussain, their father, got the signature of Muhammad Hussain also and prepared the arbitration agreement. Neither Muhammad Shafiq nor Muhammad Saeed could enter into any agreement of the property of their father nor Muhammad Hussain being of unsound mind could execute the arbitration agreement.
12. It was incumbent upon the learned District Judge to have disposed of the application pending before him under section 62 of the Lunacy Act, 1912, as he was acting in locus parentis and should not have considered it as a matter between parties. Even if there was no sufficient evidence on record, it was his duty to collect evidence.
13. Learned District Judge had referred Muhammad Hussain for medical examination and doctor has categorically stated that he was of impaired mental capability and incapable of understanding. In view of this he should not have permitted Muhammad Shafiq to withdraw the application under section 62 of the Lunacy, Act, 1912, which was withdrawn with ulterior motive to deprive the daughters of Muhammad Hussain from his inheritance. The withdrawal of application under section 62 of Lunacy Act, 1912, by Muhammad Shafiq speaks about his intention to grab the shares of his sisters. On this ground also the impugned judgment is not sustainable.
14. Accordingly, we accept the appeal and set aside the impugned judgment and decree dated 6- 11-1994 of the learned Civil Judge Ist Class, Faisalabad. The parties shall bear their own costs.