' This judgment will dispose of the revision application which is preferred against the judgment and decree, dated 30-4-1985 and 22-5-1985 respectively, passed by the learned III-Additional District Judge, Larkana in Civil Appeal No, 49 of 1982 filed by the respondents Nos.1 and 2 whereby he set aside the judgment and decree, dated 16-10-1982 passed by the II-Senior Civil Judge, Larkana in favour of the applicants in Civil Suit No,85 of 1969.
2. The applicants filed the suit on 31-7-1969 in the Court of First Class Civil Judge, Larkana for cancellation and possession of the suit land to the extent of their share of 80 paisas. The suit in the first instance was filed against the respondents Nos.1 to 3 but thereafter respondent No,4 was joined as party on the application of applicants dated 23-5-1974. The case of the applicants as set up in the plaint is that the suit land shown along with other properties was owned by Pheroomal the grandfather of applicants said Gurnomal died in or about 1939 leaving Phanrijmal, Remechand, Jiandas i,e, the respondent No,3, Gurnomal Ramjhomal, Shirimati Tahmul Bai and Shirimati Lashi Bai as his legal heirs. Subsequently Remchand died who was survived by a son and widow.
Thereafter, the matter was brought before First Class Court, Larkana and the decree was passed in a First Class Suit No,4 of 1960 according to which the suit land was given to Jiandas the respondent No,3, the father of the applicants. This property was joint family property of the respondent No,3 and the applicants as they constituted joint Hindu family. The respondent No,3 being the Head of the Family acted as Manager (Karta) of the said property having 20 paisas share whereas the applicants jointly have 80 paisas share therein. There respondent No,3 sold away the entire suit land including the share of applicants to respondents Nos.1 and 2 by a registered sale-deed, dated 22-8-1963 and transferred to them the possession thereof. It is claimed by the applicants that the sale was made without any legal or religious necessity, and, therefore, it is not binding upon them to the extent of their share. They asked the respondents Nos.1 and 2 to return the suit land to them but they refused and therefore they filed the suit. During pendency of the suit the respondent No,2 Moulvi Wahid Bux expired hence his legal heirs respondents Nos.2-A to 2-C were joined by the order, dated 7-6-1979.
3. Respondents Nos.1 and 2 only contested the case and the other respondents remained absent without intimation, and therefore, respondent No,3 and the respondent No,4 were declared ex parte on 22-10-1969 and 22-9-1976 respectively. The respondent No,4, thereafter, moved an application under Order 9, Rule 7, C.P.C. On 13-10-1981 to set aside the ex parte order which was disallowed by the order dated 3-1-1982 against which order he did not file any appeal. The respondents Nos.1 and 2 in their written statement have controverted all averments made in the plaint. Their case is that the respondent No,3 was the sole owner of the suit land and that he was in possession of the land as such he was competent to sell the land. Their alternate plea is that the respondent No,3 was badly in need of money as he required the same for maintenance of his large family and education of the applicant; and to defend himself and his wife in the case of Ghonda Act; and having no other source of income the respondent No,3 entered into the transaction with the respondents Nos.1 and 2. They claimed that the applicants raised no objection for the sale of suit land, and, therefore, they are now estopped from challenging the title of respondents Nos.1 and 2.
They further claimed that the respondent No, 3 and the applicants have filed the suit in collusion as respondent No,3 had also executed the separate agreement of sale of the suit land with Muhammad Nawaz the respondent No,4 who filed the First Class Suit No,21 of 1964 for Specific Performance which was dismissed on 29-4-1967. Their further plea is that the suit is insufficiently stamped and that it is not in proper form.
4. On the pleadings of the parties my learned predecessor framed the following issues on 24-6- 1970.
(1) Whether the suit is not in proper form?
(2) Whether the plaint is insufficiently stamped?
(3) Whether the sale by respondent No,3 of land shown in the schedule attached to the plaint in favour of respondents Nos.1 and 2 was void, if so, to what extent?
(4) Whether the applicants are entitled to possession suit land to the extent to other share?
(5) Whether the applicants are entitled to have cancellation of the sale dated 22-3-1963?
(6) What should the decree be?
5. The parties adduced their evidence and when the learned counsel for both parties addressed the arguments it was found that the main issue regarding joint family was not framed. Therefore, the following additional issue was framed on 22-2-1981.
7. Whether plaintiffs were members of joint family with defendant No,3 at the time of sale of land in favour of defendants Nos.1 and 2?
6. The parties were asked to produce the evidence on this issue, when the plaintiffs examined Shirimati Bhanwari Exh. 159 and the learned defence counsel gave statement as Exh.161 that he did not want to lead further evidence.
7. Both the parties led evidence and trial Court decreed the suit on all issues but in appeal the Appellate Court maintained, the findings on issue No,7 and dismissed the suit on all other issues.
8. Heard Mr. Lachhmandas, learned counsel for the plaintiff and Mr. Rehmat Ali Rajput learned counsel for the defendants Nos.1 and 2. Mr. Lachhmandas learned counsel for the applicant has referred to the cases of Noorunisa v. Abdul Salam and others 1983 SCMR 1012, Ram Narain Kaul v.
Mst. Bishan Rani AIR 1938 Lahore 321), Asa Ram and others v. Jagan Nath and others (AIR 1934 Lahore 563), Asif Hussain v. Mushtaq Ahmed etc. (AIR 1942 Lahore 209), Taj Muhammad and others v. Muhammad Iqbal and others (1986 SCMR 276), Mst. Amna's case (1990 CLC 1492), Nisar Muhammad Khan v. Abdullah Khan and others (PLD 1965 Supreme Court 690), Summer Gul v.
Central Government and others (PLD 1986 Supreme Court 35), Iqbal Qureshi v. Daibakalal Bask (PLD 1965 Dacca 439), Syed Hussain Shah v. Shamshad Ali Shah (PLD 1964 Supreme Court 143), Usman and others v. Haji Noor Muhammad Jamot (PLD 1993 Karachi 23), Mian Jamal Shah v. Member Election Commission (PLD 196 Supreme Court 1), Chaman Ara Begum v. Jamal Ali (PLD 1968 Dacca 190), Nasir Abbas v. Manzoor Haider Shah (PLD 1989 Supreme Court 568), Moolchand and others v.
Muhammad Yousuf (PLD 1994 Supreme Court 462), Nasiruddin v. Provinces of Pakistan (PLD 1969 Dacca 363), Syed Ali Hussain Shah v. Improvement Trust Multan (PLD 1973 Note 152 at p. 232), Muhammad Mushtaque and others v. Arif Hussain and others (1989 MLD 3495), Sardara Bibi and others v. Muhammad Amin (1987 CLC 1653, Lahore), Muhammad Nazir v. Mst. Nasir Sultana (1995 CLC 1745 Lahore) and Dr. Faqir Muhammad v. Major Ameer Muhammad (1982 SCMR 1178) and Mr. Rehmat Ali Rajput referred to the cases of Binyameen and 3 others v. Choudhry Hakim and others (1996 SCMR 336-339), Mst. Jannat Bibi v. Sher Muhammad and others (1988 SCMR 1696), Sudhangshu Bimal Niswa s v. Chaudhry MD. Mustafa (1968 SCMR 213), Mian Iqbal Mahmood Banday v. Muhammad Saddiq (PLD 1995 Supreme Court 351-361), Dhani Bux v. Mst. Mahmoodunisa (PLD 1981 Karachi 650-654), Sharafat Khan and others v. Hussain Shah and others (1998 CLC 1869-1871), Waris Khan and 2 others v. Mst. Zainab Nisa and others (1999 SCMR 526-528), Habibullah v. Abdul Hakim and 11 others (1997 SCMR 11391143-1146), Mir Muhammad alias Miral v. Ghulam Muhammad (PLD 1996 Karachi 202-205), Ilamuddin through legal heirs v. Syed Sarfraz Hussain through legal heirs and 5 others (1999 CLC 312), Secretary to Government, West Pakistan (now N.-W.F.P.), Department of Agricultural and Forests, Peshawar and 4 others v. Kazi Abdul Kafil (PLD 1978 Supreme Court 242-249-250).
8-A. The provisions of sections 212 (Joint Hindu Family), 213 (Coparcenary), 236 (Manager), 242 (alienation by manager of coparcenary property for legal necessity), 243 (what is legal necessity), 244 (burden of proof of necessity), 255 (who alienate coparcenary property), 256 (alienation by father), 268 (setting aside sales and mortgages-Madrass and Bombay), section 269 (setting aside sales and mortgage---other status) of Hindu law have also been referred by both the counsels.
9. This is a fit case for interference under the Revisional jurisdiction and so this revision application to be allowed for the reasons to follow.
ISSUES NOS. 1 and 2: ' A perusal of the judgment of trial Court shows that the trial Judge while dealing with these issues has given findings in favour of the applicants after discussing the provisions of section 39 of the Specific Relief Act and section 7(4)(c) of the Court Fees Act and rightly concluded that the suit was in the proper form and that the plaint is properly stamped. The trial Court rightly held that the relief of declaring the instrument can be granted under Order VII, Rule 7, C.P.C. Even otherwise as held in PLD 1986 Supreme Court 35 (supra) the Court is empowered to grant such relief as justice of case demand and for determining the relief asked for whole of the plaint must be looked into so that the substance rather than the form should be examined. The suit has filed for cancellation of sale and possession but it appears that there is no prayer clause to the effect of cancellation of sale-deed.
A perusal of the plaint shows that it is a suit for cancellation of the sale-deed Exh. 89 in respect of the suit property and for possession thereof. It will not be appropriate not to grant a relief of cancellation of the sale-deed though it has not been specifically prayed for. The applicants, however, are to pay the court-fees if any, on such relief at the time of execution of decree. The trial Court had rightly rejected the contention of the respondent No, 1 and as to the maintainability of the suit on the ground that the mother of the minor plaintiffs had not filed an affidavit in respect of the minor and the power of attorney in respect of the major applicants. The finding of the trial Court is just and proper in holding that these are simple irregularities and applicant cannot be non.-suited on those grounds. Apart from the above the respondents Nos.1 and 2 have not taken the plea of non-filing of the affidavit and the power of attorney by the mother of the applicants before the Appellate Court and the Appellate Court, therefore, had not given any contrary finding to that of the trial Court. Such contention cannot be entertained at this stage.
ISSUE NO.7: Before dealing the other issues it would be proper to deal with this issue as all other issues are dependent thereat. Both Courts below have their findings in affirmative in favour of the applicant and hold that the subject property is the joint family property and that the defendant No,3 A was the manager/Karta thereof. Neither the above finding has been challenged through the revision nor it has been contested in the case by the respondents Nos.1 and 2 therefore, no further discussion is required in respect thereof.
ISSUE NO.3: Examined the findings of both of the trial Court as well as the Appellate Court and found that the First Appellate Court had neither appreciated provisions of sections 243 and 244 of Hindu Law nor the evidence adduced by the parties in that regard. Section 243 of Hindu Law defines the ingredients of legal necessity on the basis of which the manager/Karta can sale/dispose of the joint family property whereas section 244 (ibid) makes purchaser of the joint family property liable to prove that either there was a legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such necessity and did all that was reasonable to satisfy himself as to the existences of the necessity. The Appellate Court erred in law in holding that applicants were under burden to prove that the respondents Nos.1 and 2 have not fulfilled the condition of legal necessity before the purchase of suit property as contemplated by section 243 of Hindu Law. This finding is contrary to law as the provisions of section 244 are very clear and it burdens the purchaser to prove that he was satisfied with the requirement of section 243 before entertaining into the transaction with the manager/Karta of joint family property. The observation of the Appellate Court that the burden shifted on the applicants is not in accordance with law. The trial Court had discussed in detail the evidence adduced by the applicants as well as by the respondents Nos.1 and 2 and rightly came to the conclusion that the respondents Nos.1 and 2 have failed to discharge their burden to satisfy the requirements of sections 243 and 244 Hindu Law. In fact the respondents Nos.1 and 2 had in their pleadings and in their evidence at the first instance attempted to show that the subject property was solely owned by the respondent No,3 and the applicants had no right or interest therein and thereafter, a plea was taken that the respondents Nos.1 and 2 made enquiries from the mother of the applicants and their neighbours as to any objection before entering into transaction. The respondents Nos.1 and 2 failed to produce. The mother of the applicants and the neighbours to prove their contention. The Appellate Court failed to appreciate that the respondents Nos.1 and 2 and respondent No,3 while executing the sale deed Exh.89 have not been remotely mentioned therein the details of other copartners nor the legal necessity for which the subject property was being transferred. This very fact clearly shows that the respondent Nos.1 and 2 in spite of having knowledge that it was a joint family property deliberately and in collusion with respondent No,3 executed Exh.89 concealing therein the true facts and as such deprived the applicants of their lawful right to the suit property. There is no substance in the contention on behalf of the respondents Nos.1 and 2 that Shrimati Bhanwari, the maternal grandmother of the applicants who appeared in Court to prove the issue No,7, had not said anything that the applicants were being maintained by her and not by their father and as such, the contentions of the applicants that they were maintained by their maternal grandmother was not proved. It may be noted that the said witness appeared in Court only in respect of the additional issue i,e, issue No,7 and therefore, she was not supposed to make any statement in respect of the maintenance of her grand sons. Though the case of the respondents Nos.1 and 2 is that the maternal grand mother of the applicants was not alive and that the applicants were maintained by their father and not by their maternal grand mother but they failed to cross examine Shirimati Bhanwari. The respondents Nos.1 and 2 also failed to prove that the respondent No,3 actually needed the money of the maintenance/education of the applicants and or that he required the money to defend himself and his wife in Ghonda Act case. The respondent No,1 in his evidence was not even clear as to who was actually involved into the Ghonda Act case. It was not a responsibility of respondents Nos.1 and 2 to see that the money received by respondent No,3 from them was actually spent on the necessities mentioned in section 243 but their responsibility is to prove that any of the legal necessity mentioned in section 243 actually existed; the respondents Nos.1 and 2 as stated above failed to prove the same. The trial Court erred in law in holding that section 269 of Hindu Law was applicable in this case. In fact section 268-B (ibid) applies in Pakistan wherein it has been provided that an alienation is not for legal necessity or payment of an antecedent debt and it is set aside at the instance of the other coparceners as regard their shares, there is no equity entitling the alienee to a refund to proportionate part of purchase money in respect of those shares, and therefore, the respondents Nos.1 and 2 are not entitled for the refund of the purchase money from the applicants in respect of their shares which has been illegally transferred through the sale-deed dated 22-8-1963 by the respondent No,3 to them.
The upshot of the above discussion is that the Appellate Court has misapplied, misinterpreted the law and based his judgment on misreading of evidence. Therefore, this Revision Application is allowed and the judgment of the appellate Court is set aside and in addition to the relief granted by the trial Court the sale-deed dated 22-8-1963 is cancelled under section 39 of the Specific Relief Act subject to the applicants paying required court-fees within a period of one month from the date of the judgment. No order as to costs.