SYED ZAH1D HUSSAIN, J. -- Judgment dated 28.1.1979 passed by the learned Addl. District Judge, Lahore, has been challenged through this appeal whereby the judgment of the learned Trial Court dated 6.11.1972 was set aside and the appeal was accepted. These judgments relate to a suit filed by the respondents for declaration that appellants/defendants' right of redemption in the suit land has extinguished and the respondents/plaintiffs are the lawful owners in possession.
2. The predecessor-in-interest of Taj. Din mortgaged with possession agricultural land measuring 30 kanals and 1 marla comprising of khasra 526, 527 and 535 in village Lakho Dahir, Lahore to the predecessor of Ameer Ali alias Fateh Ali with possession in the year 1856 (The mortgage money as disclosed is Rs.51/52). Ameer Ali the successor of the original mortgagee sold the mortgagee rights to respondents/plaintiffs on 26.7.1950. On 28.7.1967 respondents Karim Bakhsh etc. Filed the present suit for declaration that the right to redeem the mortgage has come to an end and extinguished by efflux of time, as the same was never redeemed within the period of 60 years and the plaintiffs are lawful owners of the suit land. In the written statement filed by Taj Din, the very mortgage was denied and at the same time it was pleaded that the land stood redeemed vide redemption deed dated 31.1.1947 (Exh. D/1) executed by Mehar Din a de-facto guardian of Ameer Ali (husband of Ameer Ali's cousin) who was minor at that time. It was his contention that since the land had already been redeemed, Ameer Ali, had no right left in it or to sell the same. On this controversy necessary issues were framed by the Trial Court. Parties led their respective evidence. The learned Trial Court dismissed the suit on 6.11.1972; as in his view the land had been redeemed oh 31.1.1947.
Respondent filed an appeal thereagainst which was accepted by the learned Appellate Court vide judgment dated 28.1.1979, which judgment is the subject-matter of the present appeal.
3. Learned counsel for the appellant has contended that although Ameer Ali was minor on 31.1.1947, yet Mehar Din his de-facto guardian acted on his behalf, received the payment and executed the deed of redemption (Exh. D/1) on his behalf. It is also contended that in the presence of said agreement of redemption a subsequent sale-deed by Ameer Ali dated 26.7.1950 (Exh. P/1) was invalid and inoperative. It is contended that although Ameer Ali was minor at the time of agreement of redemption, yet he never challenged the said agreement of attaining majority. In the alternative he submits that even on 26.7.1950 Ameer Ali was minor and the agreement in favour of respondents/plaintiffs is void and inoperative. It is contended that a right of redemption was available to the mortgagor for a period of 60 years and the mortgage was redeemed within foe limitation vide agreement dated 31.1.1947, therefore, Ameer Ali had no right to enter into any agreement thereafter. It is contended that only foe alienation of some right or interest is void on account of the minority of a person but redemption or foe agreement for that purpose is not an alienation of any right or interest, therefore, agreement dated 31.1.1947 does not suffer from any such disability.
4. As against this foe learned counsel for foe respondent has supported the judgment of foe learned Appellate Court. It is contended that there is no objection raised in foe written statement as to foe age of Ameer Ali, no issue was framed nor any evidence led on foe point. He relies on Exh.PW- 3/1, an application dated 11.4.1951 made to foe Revenue Assistant from which the age of Ameer Ali is ascertainable that on 26.7.1950, he was major and competent in law to execute any agreement. It is contended that Ameer Mi appeared as witness (PW-4) and he categorically disowned foe agreement Exh. D-1, dated 31.1.1947 whereas agreement Exh. P-1 has been duly acknowledged and owned by him. He has contended that admittedly on 31.1.1947 Ameer Ali was minor that is why some third person claiming to be as a de-facto guardian executed the same, whereas on 26.7.1950 Ameer Ali was major and agreement Exh. P-1 is validly executed by him in favour of plaintiffs/respondents. It is contended that in any case Exh. D-1 was executed after 60 years which as the rights of foe mortgagor had on expiry of 60 years period become extinct. Section 28 of the Limitation Act has been relied upon by him. In support of his contention that de-facto guardian has no authority to deal with foe property of foe minor, he has relied upon PLD 1950 Pesh. 69, AIR 1926 Lahore 160 and PLD 1954 Dacca 364.
5. Learned counsel for foe vendees who had been impleaded through a later application has adopted foe arguments of the learned counsel for the appellant and supported him.
6. The mortgage is now not in dispute nor foe possession of Ameer Ali as a successor of mortgagee. The entire controversy is as to the effect of deed of redemption dated 31.1.1947 Exh. D-1 executed by Mehar Din claiming to be the de- facto guardian of Ameer Ali and its validity and foe sale-deed dated 26.7.1950 Exh. P-1, executed by Ameer Ali himself in favour of the respondents/plaintiff.
7. The position as to the authority and competency of defacto guardian to deal with the property of a minor has come up in number of judgments by now and foe principle is now well-settled that a de-facto guardian of a minor has no power to transfer any right or interest in immovable property of a minor. A de-facto guardian "is a person who is neither a natural guardian, a legal guardian nor a guardian appointed by the Court, who has voluntarily placed himself incharge of foe person and property of a minor. He is merely a custodian of a person and the property of the minor". Reference may be made to paragraph 361 of principles of Muhammadan Law by D.F. Mulls 15th Edition and Muhammad Afzal Khan and another Vs. Mst. Khurshid Begum and others (PLD 197S Pesh. 24). A person acting in such a capacity has no power to convey to another any right or interest in immovable property was the principle stated by the Privy Council in Imam Bandi Vs. Mutsaddi (AIR 1918 Privy Council 11). This proposition was found as a settled law by a Division Bench of Lahore High Court in Rang Elahi Vs. Mehboob Elahi (AIR 1926 Lahore 170), that a Muhammadan mother has no power to alienate the property of her minor son. Applying this principle a mortgage in that case made by the mother of the mother was held to be void ab initio. The principle is after partition also well-settled in India as well as in Pakistan. In Muhammad Amin etc. vs. Wakeel Ahmad etc. (AIR 1952 SC 358) the principle was reiterated as follows: - "Under Muhammadan Law a person who has charge of the person or property of a minor without being his legal guardian and who may, therefore, be conveniently called a de-facto guardian, has no powers to convey to another any right or interest in immovable property which the transferee can enforce against an infant."
In this case a family settlement executed by a brother of the minor as a de- facto guardian was held to be void and not binding on the minor irrespective of the consideration that it benefitted him or the arrangement was followed for a long period. In Ali Muhammad Vs. Ram Niwas (AIR 1967 Rajisthan 258), a mortgage was made by the mother of the minor and it was observed that in view of the legal position "I have no manner of hesitation in coming to the conclusion that not only the document Exh. A-1 was not binding on the minor but it was void and inoperative with respect to other parties concerned with the documents including his mother and the defendants could not take any advantage of it." In Tikan Chand Luna V. Rahim Khan Ishaq Khan (AIR 1971 M.P. 23), deed of partition executed by the mother of a minor acting as de-facto guardian was held to be void and not binding on the minor, irrespective of considerations that it benefitted him.
In Pakistan also the principle is firmly established through judicial pronouncements. In Zarat Gul vs. Mian Khan (PLD 1950 Pesh. 69), the alienation of minor's property by a de-facto guardian was held to be void ab initio and not ratifiable. In Sultan Ahmad Vs. Fazul Kabir alias Munohar Ali Ch. (PLD 1954 Dacca 104) it was held that a self-constituted guardian cannot transfer minor's property and that such a transfer was void. In Ahmad Khan Vr. Rasool Shah (PLD 1975 S.C. 311) a document executed by the mother of minor concerning the interest of the minor in the property was held to be void, a brief portion from the judgment at page 315 may be reproduced which is as follows: - "It is well-established principle of Muslim Law that a de-facto guardian of a minor has no power to transfer any right or interest in immovable property of a minor. Such a transfer is not merely , voidable but is void."
There is thus no manner of doubt whatsoever that the rights or interest of a minor in an immovable property cannot be dealt with by a de-facto guardian. In the judgments referred to above, the transactions were entered into by the de-facto guardian such as mother and brother and held to be void and in-operative against the interest of the minor. In the present case a remote relation of Amir Ali namely Mehar Din who is a cousin's husband has purported to deal with his property through Exh. D-1 which was in view of the established law without any lawful power or authority thus void and in-operative.
8'. No one can deal with the property of the other including a minor, unless possessed with a lawful power or authority for the purpose. The Guardian and Wards Act, provides, the method of appointment of guardian for the person and property and in particular for dealing with the property of a minor, the guardian is bound down with the restrictions imposed by the Court. The said power of disposition is exercisable only in the interest and welfare of the minor, which is supervised by the Court concerned. Otherwise the property of the minor can be squandered away by any person/relation claiming to be the de-facto guardian. This is why the safe-guards have been provided for the protection of minors in the Guardian and Wards Act. As Ameer Ali was minor on 31.1.1947, Mehar Din had no authority to act as his guardian, nor had the power or authority in any way to deal with his property or dispose it of. The so-called redemption deed was void and in- operative against the rights of the minor Ameer Ali on this ground as well. The finding of the learned Court to the contrary was not correct and rightly set aside by the Appellate Court.
9. The contention of the learned counsel for the appellant that by executing deed of redemption Mehar Din the de-facto guardian did not deal with the property of the minor has no substance inasmuch as a valuable right in the mortgaged property had occurred to the minor Ameer Ali by efflux of time with the extinction of the right of mortgagor and redeem the property, thus a valuable right in the property vested in Ameer Ali. "Equity of redemption by itself is an immovable property within the meaning of Transfer of Property Act", as held in Mst. Zarmewa and 8 others Vs. Khial Bat Khan and 53 others (1992 SCMR 1804). Thus any transaction or execution of a. Document affecting such a right would be hit by the principle that a de-facto guardian has no power or authority to deal with the rights and interest of the minor. The contention therefore, is un-tenable in view of the number of precedents referred to above.
10. There is another aspect of the matter which is that in 1951 the appellants/defendants instituted an application (Exh.PW-3/1) for redemption before the Revenue Authorities, which was rejected by the Revenue Assistant vide order dated 28.7.1951 (Exh.PW-6/1). It was not challenged any more and thus attained finality. It also shows that appellant himself was doubtful about the validity of the so- called redemption deed dated 31.1.1947. There was thus no need for Ameer Ali also to challenge Exh.
D-1 which had no legal effect whatsoever.
11. The objection to Exh. P-1 sale-deed in favour of the respondents/plaintiffs dated 26.7.1950 that Ameer Ali was minor at that time also, is belied by the contents of the application Exh.PW-3/1, made by the appellant/defendant to the Revenue Assistant which gives the age of Ameer Ali as 16 years on 31.1.1947, whereas Exh. P-1 was executed on 8.4.1950 and registered on 26.7.1950 and thus at that time his age was 19 years plus. He was major under the law and could deal with his property. The view of the learned Appellate Court was thus based on a proper appreciation of the facts and circumstances of the case and rightly set aside the findings of the learned Trial Court on this point.
It is worth noting that Ameer Ali himself appeared as PW-4 and owned and acknowledged the execution of Exh,P-1 which is a registered document.
12. Period of limitation for redemption is 60 years from the date of mortgage which expired long before. The rights and interest of the mortgagors or their successor stood extinguished on expiry of the said period as no redemption took place within the period of limitation, as held in Nazeef Vs. Abdul Ghaffar and others (PLD 1966 S.C. 267). Therefore, the suit was rightly decreed by the learned Appellate Court.
13. In view of the above, I find the judgment of the learned Appellate Court dated 28.1.1979 absolutely un-exceptionable and is upheld. This appeal accordingly fails and is dismissed without any order as to costs.