' SABIHUDDIN AHMAD, J.---According to the case set-up in the memo. Of petition itself, the petitioner is a Zamindar and the father of Respondents Nos.3 and 4 as well as minor Faraz Ali all of whom were born out of his marriage with his second wife Mst. Gulshan. It may be pertinent to reproduce paras. 3, 4 and 6 of the memo. Of petition, in verbatim, which read as under:--- "3.---That due to promulgation of M.L.R. 115 and by the family arrangement some of the agricultural property was gifted to Nawab Arshad Ali and Rashid Ali who were minors at that time and record of rights were mutated.
4. That subsequently, the petitioner on 10-12-1987 gifted out certain land to Faraz Ali minor from land of Nawab Rashid Ali' and Arshad Ali.
6. That the petitioner had taken certain loans from Agricultural Bank of Pakistan by mortgaging land in the name of his sons for the development of the said land."
2. In 1978 the petitioner submitted an application under section 7 of the Guardian and Wards Act, 1890 before the District Judge, Hyderabad, praying that he be appointed guardian of his 11 children including, the Respondents Nos. 3 and 4 as well as the aforesaid Faraz Ali (described as Faraz Farooq). The learned District Judge disposed of the application by order, dated 16-7-1978 observing that under the Muslim Law a father is already the legal and natural guardian of the property of his minor child and a Court certificate is not necessary. However, for reasons best known to the petitioner himself, another application being Civil Appeal No,4 of 1991 was made before the 1st Senior Civil Judge, Hyderabad and by a certificate, dated 3-8-1991, the petitioner was appointed guardian of the person and property of the minor Faraz Ali. The petitioner, however, in the said certificate was required to note as under:- "You shall not mortgage, lease, dispose of the property of the minor in any manner whatsoever without prior permission of this Court."
' However, on the very next day. i,e,, 4-8-1991, the learned Senior Civil Judge, granted the petitioner permission for "mortgaging the property of minor with Agricultural Development Bank of Pakistan or any other Agency for obtaining loan for the purchase of fertilizer, pesticides, equipment and machinery. He was however, directed to inform the Court, immediately on receipt of the loan amount, as to how much loan has been obtained against the property of the minor.
3. According to the petitioner, differences arose between the petitioner and his second wife, Gulshan i,e,, the mother of respondents Nos. 3 and 4 as well as minor Faraz Ali and eventually and consequently the Respondents Nos. 3 and 4 submitted applications before the Respondent No,1, alleging that the petitioner was a person of wasteful habits, was squandering away the property of the applicants (which was under the control and management of the petitioner), and had mortgaged the applicant's property with the Agricultural Development Bank of Pakistan, and prayed that the Manager be appointed under section 3 of the Sindh Encumbered Estates Act, 1896.
A similar application was made by Mst. Gulshan on behalf of minor Faraz Ali.
4. By order, dated 6-12-1992 notified in the Sindh Government Gazette, dated 10-12-1992 the Respondent No,1 ordered that in accordance with the provision of section 7(c) of the aforesaid Sindh Incumbered Estates Act the property of Respondents Nos.3 and 4 as well as Faraz Ali stood vested in the Additional Deputy Commissioner II and Manager. Sindh Incumbered Estates, Hyderabad District. By notification published in the Gazette, dated 14-1-1993, the aforesaid Manager invited claims against the property placed under his charge. Upon coming to know of the appointment of the Manager, the petitioner preferred an application for revision against the aforesaid order, dated 6-12-1992 before Respondent No,2 which came to be dismissed vide order, dated 22-8-1993 passed by the Senior Member Board of Revenue and Secretary Revenue Department.
5. The petitioner has called in question the aforesaid orders of the Respondents Nos.1 and 2, dated 6-12-1992 and 22-8-1993 by way of this petition. However, it may be pertinent to mention that apart from preferring the statutory revision mentioned in para. 4 the order, dated 6-12-1992 has also been questioned by the petitioner in a declaratory suit being F.C. Suit No,230 of 1993 in the Court of II Senior Civil Judge Hyderabad. Indeed the factum of filing of such suit, refusal of the trial and the First Appellate Court to get interim relief to the petitioner and pendency of a revision application against such orders before this Court has been mentioned in para. 12 of the memo. Of petition and has also been discussed in the impugned order, dated 22-8-1993. This matter came up before another Bench on 4-2-1997 it was ordered that file of Revision Application 111 of 1993 filed by the petitioner be also tagged with this petition. Accordingly, we have also examined the aforesaid file.
6. It transpired that on 15-6-1993 the petitioner filed the aforesaid suit arraying the Deputy Commissioner Hyderabad (Respondent No,1 in this petition) and the Additional Deputy Commissioner II (appointed Manager of the Estate) as the only defendants, The following reliefs were claimed:---
(i) A declaration that the plaintiff is the owner of the suit land (i,e, property in respect of which a Manager has been appointed under the impugned order) and that the gifts, dated 30-7-1997 (in favour of Respondents Nos. 3 and 4) and 10-12-1987 (in favour of minor Faraz Ali Farooq) stand revoked.
(ii) A declaration that the order, dated 16-12-1992 passed by the defendant No,3 (Deputy Commissioner Hyderabad) and further proceedings taken in pursuance thereof are illegal, void, mala fide and not binding on the plaintiff (petitioner).
(iii) A permanent injunction restraining the defendants from interfering with the ownership of the plaintiff and from acting upon the order, dated 16-12-1992.
7. In the body of the plaint it has been stated that on 30-7-1993 the plaintiff made a gift of land in favour of his two sons Arshad Ali and Rashid Ali (Respondent Nos.3 and 4) who were minor at that time,, as "a family arrangement and in order to save the lands from resumption under the Land Reforms." A gift in favour of minor Faraz Ali is to have been made on 10-12-1987 and it has been admitted that the record of rights stood mutated in favour of the three sons. However, it is stated that the plaintiff (petitioner) continued to remain in possession of the land and has been obtaining loans for their development through mortgaging them. It is further stated that in July, 1992 owing to family disputes the petitioner's sons and their mother Mst. Gulshan filed frivolous application before the Deputy Commissioner requiring the latter to afford protection of the Sindh Incumbered Estate Act whereupon the impugned order, dated 6-12-1992 was passed. It is further contended that since the aforesaid sons have raised dispute and set-up the defendants to oust the plaintiff, the plaintiff has revoked the gift and is owner of the suit land Interestingly the donees of the gift have not been arrayed as defendants in the suit.
8. While the above suit is still pending an application for interim injunction submitted by the petitioner/plaintiff was dismissed by the Trial Court on 26-6-1993. The petitioner preferred an appeal before the IIIrd Additional District Judge which came to be dismissed through an elaborate order, dated 11-8-1993. It was inter alia observed that the gift having been made to his minor sons no question of delivery of physical possession and mutations having been effected in the names of donees the gift stood completed and became revoked. Moreover, the plaintiff could not take advantage of his own fraud by contending that the gift was only made to avoid surrender of land under the Land Reforms Regulation. We would, however, refrain from commenting further on this aspect of the matter as the question of so-called revocation of the gift is not before us. A revision application was filed in this Court on 24-8-1993. However, after the petitioners statutory revision under the Sindh Incumbered Estates Act came to be dismissed by the Respondent No,2 on 22-8- 1993, he filed the present petition on 11-10-1993, For some reasons, however, though pre-admission notices were issued the matter has not crossed Katcha Peshi stage.
9. At the hearing of this petition, Mr. Kishanchand learned counsel for the petitioner, did not press his case in so far as appointment of Manager in respect of the properties of Respondents Nos. 3 and 4 was concerned. He mainly contended that no Manager can be appointed in respect of the properties of minor Faraz Ali on the basis of an application preferred by the minor's mother Mst.
Gulshan. He relied upon the provisions of section 3(2) Sindh Incumbered Estates Act, 1996, which reads as under:- "When any Zamindar or other person entitled to make an application under this section is a minor, or of unsound mind or an idiot, such application may be made on his behalf by the guardian or other legal curator of his person, or by the legally constituted Administrator or Manager of his estate" (underlining is ours)."
' Both the learned counsel agree that they had not been able, to place their hands on any reported judgments. Where this expression has been defined. Mr. Kishanchand placed reliance on Dictionary meaning of the expression 'curator' and referred to the New Oxford Illustrated Dictionary, Vol. I, where this expression has been defined in the following terms:--- 'curator' Person in charge, manager; keeper, custodian of museum; member of board managing property or having general superintendence in university. Guardian of minor, lunatic, etc."
10. From the above Mr. Kishanchand argued that in the context of minors expression "legal curator" could only be referred to the Guardian of the minor and since, under the Muslim Law, the petitioner was a natural guardian of the person of the minor and the only person competent to deal with his property, no appointment of a Manager could be made upon an application preferred by any other person. Mr. Abdul Sattar Shaikh on the other hand contended that the expression words "guardian or other legal curator" indicated that the expression "legal curator" was of wider import because redundancy cannot be attributed to the Legislature. Without expressing any definite opinion we must state in all fairness to Mr. Kishan Chand that particularly in the absence of a guiding precedent amplifying the import of the expression legal curator we might have admitted this petition for detail consideration. However, keeping in view the fact that this petition was filed more than four years ago, we have had the benefit of hearing counsel for both the parties and there are other compelling reasons for refusing relief we do not consider any justification for protracting such litigation.
11. In the first place we find that whereas the petitioner has challenged the appointment of a Manager in respect of minor Faraz Ali on the application made by his mother Mst. Gulshan, neither minor nor his mother have been impleaded as respondent. The petitioner may indeed be himself the natural guardian of the minor but in the above matter his interest appears to be prima facie in conflict with that of the minor and it was necessary to implead the minor either through his mother or to seek the appointment of a guardian ad litem to protect the minor's interest. We, therefore, consider the petition to be barred for non-joinder of necessary parties. Indeed, we could have granted him time to rectify the defect, but are not inclined to do so for reasons stated below.
12. Secondly, it is apparent that the order, dated 6-12-1992 impugned in this petition was already questioned by the petitioner by way of a suit in Civil Court and the alternate remedy being available and in fact having been availed of by the petitioner we are of the view that a basic precondition for the exercise of jurisdiction under Article 199, has not been satisfied. Indeed the subsequent order in revision, dated 22-8-1993 had not been challenged in the aforesaid suit but the fact remains that the latter order was only passed pursuant to the former one and the petitioner could conveniently amend his plaint. The petition is therefore, liable to be dismissed on this score as well.
13. Above all it is axiomatic that discretionary relief under Article 199 of the Constitution can only be granted to a person who approaches the Court with clean hands. According to the petitioner's own showing, he executed gifts in favour of his minor son and necessary mutation were also effected in the record. By doing so he completely divested himself of all interests in the gifted property. No question of completion of gift only through delivery of possession could arise in the circumstances.
Obviously, possession had to remain with him on account of his being natural guardian of the property of the minors. Such possession, however, was in a different capacity i,e,, by way of trustee (require to act in the interest of minor). The gift was completely irrevocable under the Muslim Law.
His attempt to revoke gift can be treated as nothing but to attempt to misappropriate the property of the minors. The manner in which he obtained orders from a Civil Court for mortgaging the property of minors does not speak of his bona fides in protecting the minors interest. At the same time, his contention that the gift in favour of the Respondents Nos. 3 and 4 was only intended to avoid surrender of land under the M.L.R. 115 manifests intention to play fraud on the law, the petitioner cannot be allowed to take advantage of his own fraud in the exercise of our equitable jurisdiction.
14. Even if it be held that the Respondent No,1 has no jurisdiction to appoint a Manager on the basis of an application submitted by the mother of the minor, this petition could not be allowed. It has been consistently held by our superior Courts that even an order without jurisdiction need not be set aside if no injustice is caused thereby. Reference may be made to a recent pronouncement in the case of Export Promotion Bureau v. Qaiser Shafiullah (1994 SCM R 859). Admittedly a statutory functionary has been appointed Manager of the estate of the minor for protection of such estate. It has not even been alleged that such appointment is detrimental to the interest of minor. His brothers have expressed complete satisfaction with such arrangement. His father i,e,, the petitioner has clearly declared that his interest is adverse to that of the minor. Obviously, the petitioner is not interested in protecting the interest of the minor i,e,, the owner of the property but is admittedly attempted to appropriate the property for himself. In the circumstances, there is considerable force in the contention that he does not even have locus standi to file this petition. A petition questioning an order appointing a Manager of the property of the minor should be filed by somebody acting bona fide in the interest of the minor and not one interested in appropriating the same.
15. We are, therefore, of the view that this petition is not maintainable and would dismiss the same with special costs of Rs,15,000 (Rupees fifteen thousand).