By this common judgment, I propose to dispose of 1st Appeals Nos.102 of 1987, 103 of 1987 and 104 of 1987, since the facts and law in all the appeals are almost identical. There are, however, certain variations in the facts to illustrate which I shall deal with these separately wherever necessary.
2. All these appeals arise from judgment, dated 28-10-1987 of Senior Civil Judge, Tando Allahyar in First Class Suits Nos.40 of 1985, 41 of 1985 and 72 of 1985, whereby the learned Senior Civil Judge decreed the suits as prayed vide decree, dated 3-11-1987.
3. Briefly, the facts of the case in various suits are as under:--Suit No,40 of 1985---1st Appeal No,102 of 1987
4. The respondent while a minor owned 87 Paisas share in agricultural land comprising of Serial Nos.309/1, 2 and 4, 310/3 and 4, 332 to 4, 333/1, 2, 2-A, 3,.4 and 4-A, 334/1 to 4, 335/2 and 3, 336/1 to 4, admeasuring 88.21 Acres in Deh Kohi, Tapa Saharpur Taluka Tando Allahyar, District Hyderabad.
This land was sold by minor's father Allah Bux the respondent No,2 to the appellants on 13-5-1976, when the minor was 3 years old. The sale-deed was duly registered on 15-5-1976. It is significant to note that the respondent No,2, father of the minor was not impleaded as defendant in the suit, but added subsequently, at the instance of the appellants. The respondent No,1 subsequently, filed a suit in January, 1985, when he was 12 years old through his elder brother and next friend Sohbat Khan against appellants claiming that since the sale was carried-out by a person, who was not appointed as guardian by the Court, it was invalid. He, therefore, prayed that the sale-deed be cancelled and he be put in possession of the property and also mesne profit be allowed to him from 13-5-1976, till possession is given to him.
Suit No,41 of 1985---1st Appeal No,103 of 1987 and Suit No,72 of 1985---1st Appeals Nos.1 to 4 of 1987 The respondent No,1 while a minor owned 87 Paisas share in 2 parcels of the land, described as under:-- Suit No,72 of 1985---First Comprising of Survey Nos.302/4, 305/3 and 4, 322/1 to 4, 323/1 to 4, 324/1 to 4, 325/2 and 3 admeasuring 65.19 Acres in Deh Koraiki Taluka. Tando Allahyar.
Suit No,41 of 1985---Second Comprising of Serial Nos.326/1 to 4, 327/1 to 4, 342/1 to 4 and 343/1 to 4, admeasuring 62.8 Acres in Deh Koraiki Taluka Tando Allahyar.
In the year 1976, when the respondent No,1 was still a minor, his father respondent No,2, on 15-5- 1976 exchanged the First parcel of land owned by respondent No,1 with land comprising of Serial Nos.90 and others, admeasuring 64.28 Acres in Deb 102, Taluka Mirpurkhas., District Tharparkar, jointly owned by late Mir Khan, ancestor-in-title of appellants and Mir Khan's brother Sher Khan. The exchange of property was effected by taking statements on 15-5-1976 before Evenue Authorities.
Upon the same date i,e, 15-5-1976 the respondent No,2 sold the Second parcel of the land, owned by respondent No,1, to appellants Nos.1 to 4, who were the sons of late Mir Khan and appellants Nos.5 and 6, who were the sons of Sher Khan for consideration under a registered deed. Both these transactions i,e, exchange and sale was entered in the Revenue Record and the lands were mutated in the names of respective parties. Thereafter, the new owners of the property are in peaceful possession and in enjoyment of the exchanged/sold property. After the death of said Mir Khan, his share in the land, that is the one acquired by exchange, has now devolved on his heirs, the appellants. After 9 years of the completion of the above transactions, the respondent No,1 in January, 1985, filed a suit against the appellants wherein, he prayed that the sale of his 87 Paisas share for the second parcel of land mentioned above by his father respondent No,2, be declared invalid, as his father during his minority had no authority to sell the land. This suit was then followed by another Suit No,72 of 1985, filed in February, 1985, by respondent No,1 against Sher Khan and against legal heirs of late Mir Khan including some of the appellants in this appeal, wherein the exchange of land effected by respondent No,2 was challenged. The respondent also claimed mesne profit from 15-5-1976 till the time of delivery of possession of the land. It is significant to note that in both the suits the father of respondent No,1 was included as a party only at the instance of the appellants. These suits were defended by the appellants mainly on the ground that these were barred by law of limitation. Their other defence was that the transfers of the property were duly made by the natural guardian of the minor for a valuable consideration and for better management and benefit of the minor. The respondent No,2 also filed his written statement in both the suits and his defence was that in exchange for 66.12 Acres of land in Taluka Mirpurkhas the respondent No,2 gave away the land measuring 188 Acres and did not receive anything in consideration thereof.
6. The father of the respondent No,1 in all suits also filed a written. statement through which he has supported the claim of the plaintiff (respondent No,1) in the suit. He states that he has not received the consideration mentioned in the sale-deed and that the quality of land that he received in exchange was of inferior quality.
7. Based on the pleadings of the parties, the following common issues were framed in all three suits:--
(3) Whether the suit is improperly valued? If yes, what is its effect?
(4) Whether the plaint is improperly stamped? If yes, what is its effect?
(5) Whether the suit is time-barred?
(6) Whether the suit is not maintainable under the provisions of Specific Relief Act and Transfer of Property Act?
(7) What should the decree be?
8. Following were the issues that were not common in the three suits:--Suit No,40 of 1985
(1) Whether sale of the suit land, dated 13-5-1976, by defendant No,7 in favour of defendants Nos.1 to 6 is legal and valid? If not what is its effect?
(2)Whether defendant No,7 had legal authority to sell the property of the plaintiff in favour of defendants Nos.1 to 6?
Suit No,41 of 1985
(1) Whether sale of the suit land, dated 13-5-1976 by defendant No,7 in favour of defendants Nos.1 to 6 is legal and valid? if not what is its effect?
(2) Whether defendant No,7 had legal authority to sell the property of the plaintiff in favour of defendants Nos.1 to 6?
Suit No,72 of 1985
(1) Whether the transfer of the suit land by way of statement, dated 15-5-1976 by defendant No,10 in favour of defendant No,1 and late Mir Khan the predecessor-in-title of defendants Nos.2 to 9 is legal and valid? If not what is its effect?
(2) Whether the defendant No,1 had legal authority to transfer the property of the plaintiff in favour of defendant No,1 and Mir Khan Mari?
9. I. have perused the record and proceedings, have examined the evidence on record and have heard the learned counsel at length.
10. Learned counsel for the appellants argued mainly on the basis that in Appeals Nos.103 of 1987 and 104 of 1987, the respondent No,1 at the time when the lands in question were sold and exchanged, was 16 years old and not 8 years, as claimed by the respondent No,
1. He referred me to various documents that had been brought on record, which 'included the School Leaving Certificate of the respondent No,1 as well as Form "B" that is filled under National Registration Act, in connection with the National Identity Card. He also referred to the copy of the sale-deed filed in Court, which shows the age of the respondent No,1 to be only 8 years, whereas, he maintained that in the original sale-deed, the age was shown as 16 years. In so far as the School Leaving Certificate is concerned, it shows the date of birth of respondent No,1 to be 1-7-1960, and the Form "B" shows the year of birth of respondent No,1 to be 1960. Consequently, it would appear that at the time when the transaction took place, the age of the respondent No,1 was indeed 16 years. However, the counsel for the appellants maintained but somewhat halfheartedly that in the original Form "B", the year of birth was shown as 1968. The reason why the counsel for the appellants took pains to emphasise the discrepancies in the age, as shown in the pleadings of the respondent No,1 and those shown in the documents, brought on record through evidence was that, according to him, when the suit was filed in January, 1985, the age of the respondent No,1 was 25 years. However, the plaint itself describes the age of the respondent No,1 in the title to be 21 years. According to learned counsel for the appellants the contract entered into on behalf of the minor by a duly appointed guardian or the natural guardian is valid particularly when it was for the benefit of the minor as in this case. However, he conceded that the contract of sale/exchange is voidable by the minor upon his attaining majority. He further, stated that since the respondent No,1 attained majority on 1-7- 1978, under Article 44 of Limitation Act, the time limit for him to avoid the contract began at the time and expired in 1981. Consequently, the suit filed in 1985 was barred by time, and, therefore, the sale/exchange has become valid and unassailable. The learned counsel for the appellants further contended that if the Court reaches 'the conclusion that the sale was void at the choice of the minor attaining majority, the respondent No,1 would be entitled to compensation because he had taken over an arid piece of land and had through great deal of effort and expense converted it into fertile land which respondent No,1 has been cultivating for many years.
11. The learned counsel for the respondents on the other hand has stated that notwithstanding the age shown in the School Leaving Certificate, the age of the respondent No,1 at the time of filing of the suit was 8 years and that if calculated from that age, the suit was filed within time. He also asserts that he has shown the age of respondent No,1 at the time of filing of the suit in the title of the plaint as 21 years and this fact, has not been controverted in the written statement, and, therefore, would be deemed to be admitted by the appellants. He, therefore, claims that the appellants now at the appellate stage cannot resile from the admission at the time of filing their written statement. But all these are weak arguments and I find no force in these. The documents clearly show that the date of birth of respondent No,1 Sohbat Khan is 1-7-1960. Consequently, he was 25 years old at the time of filing of suit and, hence, the suit is hopelessly barred by time. The fact that limitation has not been pleaded by respondent No,1 in their pleadings is of no consequence as under section 3 of Limitation Act, the Court is bound to reject a suit barred by time.
12. So far as, the first Appeal 102 of 1987 is concerned, there is no dispute about the age of respondent No,1 at the time of filing of the suit and consequently it is clear that his age at the time of sale of property was 3 years, and, hence, he would be about 12 years old at the time of filing of the suit. Considering that the respondent No,1 has now attained majority, under the provisions of Order 32, Rule 12, C.P.C. he can maintain this suit and seek the discharge of the next friend. However, the question whether the respondent No,1 is entitled to avoid the contract entered into by his father in his capacity as a natural guardian is a question that still needs to be answered, even though the learned counsel for the appellant has not attempted to argue on this point as regards this appeal i,e, Appeal No,102 of 1987. There is no doubt that under section 11 of the Contract Act the minor is incompetent to enter into a contract, and hence, any contract entered into by a minor, would be invalid. Nevertheless, under Muslim Law it is now well-established that a duly appointed guardian or the father, being a natural guardian may enter into a contract on behalf of his son or daughter, provided that such agreement is for the obvious benefit of the minor, to the extent that under the authority of Mulla's Muhammadan Law the price obtained by the father for the property belonging to the minor should be as high as twice its value. It is obvious that in the developed markets of today it would be impossible to sell a property at twice its value. The intention behind this proposition appears to be that the benefit to the minor in the deal concerned should be manifestly to the advantage of the minor. Barkat Ali v. Aftab Ahmed 1997 CLC 1490. It is obvious that this has been provided to avoid a profligate father wasting away the property in the name of his minor son/daughter. A sale of property entered into by a father on behalf of his minor child to his obvious benefit would, thus, be a valid sale under the Islamic Law. But the question arises whether such a sale can be avoided by the minor upon attaining majority. It is now well-established that an alienation by a natural guardian otherwise than for legal necessity is voidable. If any authority is required for this proposition the case of Buland Khan v. Muhammad Rafiq and 6 others reported in PLD 1979 Lah. 237, which lists a number of authorities can be seen. There is obviously a subtle distinction between benefit of the minor and legal necessity. Whereas benefit of minor entails eventual material and commercial advantage to the minor, legal necessity would refer to means of sustenance and upkeep of the minor. Consequently, I am of the view that as a rule sale entered into by a natural or duly appointed guardian for the benefit of the minor is a valid sale but is voidable at the instance of the word upon his/her attaining majority. However, if sale/alienation has been made by a natural or duly appointed guardian for legal necessity related to the minor then such sale would not be voidable and would be unassailable on the grounds of incapacity of minor to enter the contract. It would appear that these proposition of law relating to void ability of sale at the instance of minor attaining majority presuppose a conscious independent and bona fide assertion of his rights but when there is a collusive attempt by the father and the child to deprive a bona fide purchaser of the property then he may have a claim for damages or compensation against the natural guardian.
In so far as this case is concerned, the contents of the written statements filed by the father clearly show that there are some ulterior motives behind filing of the suits. Otherwise it is inconceivable that the father should awake after 9 years to the sudden realization that a deal entered into on behalf of his son, while he was a minor, was without authority or that consideration mentioned in the sale-deed at the time of its execution was never received by him. The evidence brought on record clearly shows that the families of the father and the appellant were related due to inter marriages and considerable acrimony existed between the two families. In order, therefore, for the respondent No,1 to show that the sale entered into by his father was void, it would be necessary for him to show that the sale was not for his benefit. He could show this amongst other things, by bringing evidence to the effect that the father was profligate or extravagant in the absence of which presumption would lie to the effect that the father would inevitably have the interest of the minor at heart. Such evidence has not been brought on record by the respondents. Thus, one is led to irresistible conclusion that the purpose of these proceedings is merely to continue a proxy war between the families in the arena of Court-room, thereby misuse the process of the Court. It is obvious that such conduct cannot be termed as a conscious independent and bona fide assertion of the minor's rights upon attaining majority. Nor is there any evidence to show and indeed this is not even the appellant's case that the alienation of the said property by the father was for legal necessity related to the minor. Nevertheless the fact remains that the sale of property subject- matter of Suit No,40 of 1985 and 1st Appeal No,122 of 1987 is voidable at the instance of respondent No, 1.
In the circumstances I dismiss 1st Appeal No,102 of 1987 leaving the appellant free to seek remedy under the law for recovering damages/ compensations from respondent No,7, if they so choose. All other Appeals Nos.103 of 1987 and 104 of 1987 are allowed and judgments/decrees in Suits Nos.41 of 1985 and 72 of 1985 are set aside.