' CH. MUHAMMAD ARIF, J.---Leave to appeal is claimed under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973 against judgment dated 20-7-1998 passed by a learned Judge in Chambers of the Lahore High Court, Lahore whereby petitioner Taj Din's R.S.A. No.334 of 1979 impugning the judgment and decree of the 1st Appellate Court dated 28-1-1979 reversing the judgment and decree of the trial Court, was dismissed.
2. Petitioner Taj Din's predecessor mortgaged with possession his agricultural land measuring 30 Kanals, 1 Marla comprising of Khasra Nos.526, 527 and 535 in village Lakhodher to the predecessor of Amir Ali alias Fateh Ali in the year 1856. Amir Ali, the successor of the original mortgagee, sold the mortgagee rights to the respondents/plaintiff s on 26-7-1950. It was on 28-7-1967 that respondents Karim Bakhsh etc. Filed the present suit for declaration that the right to redeem the mortgage has come to an end has been extinguished by efflux of time as the same was never redeemed within the period of 60 years with the result that they are lawful owners of the suit land. Taj Din submitted his written statement to the plaint wherein the mortgage was denied and simultaneously it was pleaded that the land stood redeemed vide a redemption deed dated 31-1-1947 (Exh.D/1) executed by Mehar Din, a de facto guardian of Ameer Ali, married to Ameer .Ali's cousin, who was minor then and that Ameer Ali had no right left in him to sell the same. The pleadings of the parties are duly reflected in the following issues struck by the trial Court:--- "(1) Whether the suit is not maintainable in the present form? OPD
(2) Whether Ameer All alias Fateh Ali is a necessary party? OPD
(3) Whether the suit is not properly valued for the purpose of court-fee and jurisdiction? OPD.
(4) Whether the property in dispute was got redeemed by the defendant as alleged? OPD.
(5) If Issue No.4 is not proved in the affirmative, whether the plaintiffs purchased the mortgagee rights and their title has been ripened into ownership? OPP.
(6) Relief."
3. After the parties had led whatever oral as well as documentary evidence they wanted to, the trial Court came to the conclusion that (1) the suit was maintainable in its present form; (2) it was properly filed and (3) Ameer Ali had no right left in the suit property as to sell the same. It was ruled that the land in dispute stood redeemed vide redemption deed Exh.D/1 dated 31-1-1947 with the result that the instant suit, having been instituted on 29-7-1967, was liable to be dismissed. This happened on 6-11-1972.
4. As mentioned above, the appeal of the respondents under section 96, C.P.C. Was allowed by a learned Additional District Judge, Lahore on 28-1-1979. Paras. 9, 10 and 11 of the judgment dated 28- 1-1979 read thus:-- "9. The findings of the trial Court that Ameer Ali should have filed a suit to avoid the contract Exh.D-1 after attaining majority are also erroneous. It is a well established law that a de facto guardian has no authority to transact on behalf of the minor and to affected any interest in immovable property.
If any such transaction is affected by a de facto or self-constituted guardian that would be void ab initio and would not in any manner bind the minor. Such a transaction is also not capable of ratification. The observations made in this behalf by the trial Court are not sustainable for yet another reason. It is obvious that Ameer Ali has not in any manner ratified the so-called redemption effected on 31-1-1947 and the fact that he had entered into a transaction with the plaintiffs/appellants for the sale of mortgagee rights speaks volumes to the effect that the action of the so-called redemption made by the de facto guardian and under the circumstances it was not at all necessary for Ameer Ali to file a civil suit after attaining majority and to get the effect of impugned action. Nullified. The authorities cited by the learned counsel for the plaintiffs/appellants in this behalf are PLD 1954 Dacca page 104, AIR 1926 Lahore page 170, Privy Council 34 Allahabad 213, AIR 1938 Patna page 337, PLD 1950 Peshawar 69 and AIR 1940 Calcutta 589. These pronouncement duly lent support to the case of the plaintiffs/appellants. Paras. Nos.361 and 364 of the Mulla's Muhammadan Law can also be read with advantage on the point.
"10 It is not the case of the defendant/ respondent that Ameer Ali was a minor at the time of the execution of sale-deed Exh.P.1 made in favour of the, plaintiffs/ appellants. It seems that the trial Judge has fallen into error while drawing conclusions in regard to the age of Ameer Ali at the time of the execution of Exh.P-1. The mere fact that Ameer Ali while appearing as P.W.4 had stated that his age was 30 years was not enough to hold that he was minor when he sold the mortgaged rights in favour of the plaitniffs/ appellants. It is a common knowledge that these villagers are illiterate, rustics and usually tell their ages wrongly and approximately telly while they appear in the Courts. It is clear from Exh.P.W.3/1 which was filed by the defendant /respondent himself that he has manifestly stated in para. No.3 that the age of the Ameer Ali was 16 years on 31-1-1947. In this view of the matter also Ame.Er Ali was major at the time of execution of Exh.P.5 for all intents and purposes. The observations of the trial Court in this behalf are, therefore, whimsical and unfounded, particularly when no such objection was taken up by the defendant/ respondent either in the pleadings or in the evidence recorded before the trial Court and no issue was framed as well.
Ameer Ali while appearing as P.W.4 has fully supported legality of the execution of Exh.P.1 in favour of the plaintiffs/ appelants and in the circumstances, the defendant /respondent has no right whatsoever to raise any objection in that appeal, Ameer was a minor at the time or for that matter to support the observations of the trial Court recorded in this context without any cogent reason.
The fact that Exh.P.1 was duly registered before the Registrar under the law is a conclusive evidence and the matter could not be so ligibly re-opened as has been done by the trial Judge."
"11. As a result of what has been held above, the findings of the trial Court on Issue No.4 cannot be upheld and sustained in the eyes of law. It is accordingly held that the property in dispute was never got redeemed by the defendant/ respondent from the plaintiffs/ appellants or their predecessors-in-interest. Consequently, the suit filed by the plaintiffs/ appellants must succeed and I order accordingly. I, therefore, set aside the impugned judgment and decree by accepting this appeal and deciding Issue No.5 in favour of the plaintiffs /appellants, decree the suit filed by them against the defendant /respondent. In view of the protracted litigation between the parties they are left to bear their own costs.
"5. The learned Judge in Chambers upheld the judgment dated 28-1-1979, vide the impugned judgment, paras. 10, 11 and 12 whereof read as under:--- "10 There is an other aspect of the matter which is that in 1951 the appellants/ defendants instituted an application (Exh.P.W.3/1) for redemption before the Revenue Authorities, which was rejected by the Revenue Assistant vide order dated 28-7-1951 (Exh.P.W.6/1). It was not 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 the time also, is belied by the contents of the application Exh.P.W.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 P.W.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 mortgagor 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 v Abdul Ghaffar and others (PLD 1966 SC 267). Therefore, the suit was rightly decreed by the learned Appellate Court.
' In view of the above, I find the judgment of the learned Appellate Court dated 28-1-1979 absolutely unexceptionable and is upheld. This appeal accordingly fails and is dismissed without any order as to costs."
6. Hence this petition.
7. Mr. Jehangir A. Moja learned counsel appearing in support of this petition, was critical of the impugned judgment as well as the judgment of the 1st Appellate 'Court with the submission that the learned Judge in Chambers was in error in not allowing petitioner's second appeal. According to him section 28 and Article 144 of the Limitation Act do not automatically extinguish the rights of the owners. Sale-deed Exh.P/1 is tantamount to acknowledging the mortgagee rights and, therefore, makes available a further period of 60 years to his client for redemption. He referred to Maqbool Ahmed v. Government of Pakistan (1991 SCMR 2063) to contend that this Court having declared section 28, Limitation Act (No.IX of 1908) as against the tenets of Islam, his clients should have succeeded in this lis, on that ground as well. Contrarily, Mr Saleem Shahnazi, learned Advocate Supreme Court appearing on behalf of the respondents/ caveators, has supported the impugned judgment in its entirety.
8. We have considered the arguments addressed at the Bar and have also been taken through the available material by the learned counsel. What meets the eye is that out of the variant findings of the trial Court and the 1st Appellate Court, the learned Judge in Chambers upheld those of the latter. The case-law on the effect of deed of redemption dated 31-1-1947 (Exh.D/1) executed by Mehar Din claiming to be de facto guardian of Ameer Ali and:its validity and (2) the sale dated 26- 7-1950 (Exh.P/1) executed by Ameer Ali himself in favour of respondents/ plaintiffs, i.e. Muhammad Aizal Khan etc. v. Mst. Khurshid Bibi (PLD 1975 Pesh. 24). Imam Bandi v. Mutsaddi (MR 1918 PC 11), Rang Elahi v. Mehboob. Elahi (AIR 1926 Lahore 170), Muhammad Amin etc. v. Wakeel Ahmad etc. (AIR 1952 SC 358), Ali Muhammad v. Ram Niwas (AIR 1967 Rajasthan 258), Tikan Chand Luna v. Rahim Khan Ishaq Khan (AIR 1971 M.P. 23), Ziarat Gul v. Mian Khan (PLD 1950 Pesh: 69), Sultan Ahmad v.
Fazul Kabir alias Monohar Ali Ch. (PLD 1954 Dacca 104) and Ahmad Khan v. Rasool Shah (PLD 1975 SC 311) was duly noticed by the learned Judge in Chambers to reach the conclusion that the rights and interests of a minor in an immovable property cannot be dealt with by a de facto guardian. It was observed that in the case in hand it was not even a near relative but a remote relation of Ameer Ali, namely Mehar Din the husband of a cousin of his, who had ".. 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 inoperative." (Underlining is for emphasis).
9. As regards the plea that by executing deed of redemption Mehar Din the de facto guardian, did not deal with the property of the minor, the learned Judge in Chambers was quite right in observing that the same has no substance. It was correctly observed that ".. as a valuable right had accured in favour of the minor Ameer Ali by efflux of time with the extinction of the right of the mortgagor to redeem the property thus a valuable right in the property vested in Amir Ali. "Equity of redemption by itself is an immovable property within the meaning of Transfer of Property Act" as held in Mst. Zaman and 8 others v. Khiat Bat Khan and 53 others 1992 SCMR 1804). These any transaction or execution of a document effecting 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."
(Underlining is for emphasis).
10. The matter does not end here. It was in the year 1951 that the petitioners/defendants filed an application (Exh.P.W.3/1) before the Revenue Authorities seeking redemption but the same was dismissed by the Revenue Assistant vide his order dated 28-7-1951 (P.W.6/1). The learned Judge in Chambers was quite right in observing that these two documents clearly show that petitioner-Taj Din was himself in doubt about the validity of the so-called redemption deed dated 31-1-1947.
Further, this situation would also favour Ameer Ali as he had no need to challenge Exh.D/1 which, in its own turn, had no legal effect whatsoever.
11. Similarly, the learned Judge in Chambers correctly observed that: "The objection to Exh.P.1 sale- deed in favour of the respondents/plaintiffs dated 26-7-1950 that Ameer Ali was minor at the time also, is belied by contents of application Exh.P.W.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 26-7-1950 and thus at that time his age was 19 years plus It is worth noting that Ameer Ali himself appeared as P.W.4 and acknowledged the execution of Exh.P.1 which is a registered document. (Underlining is for emphasis).
12. We find that that limb of the argument of Mr. Jhoja which relates to the execution of sale-deed Exh.P.1 tieing tentamount to acknowledging the mortgage rights for another period of 60 years for redemption, was advanced without noticing that the learned Judge in Chambers had referred to the law declared by this Court in Nazeef v. Abdul Ghaffar and others (PLD 1966 SC 267) that the rights and interests of the mortgagors or their successors stood extinguished on expiry of the said period as no redemption took place within the period of limitation. As regards the second limb of Mr. Jhoja's argument that section 28 ibid has been declared to be against the tenets of Islam, we suffice by observing that neither the case of Maqbool Ahmad (supra) is applicable to the facts and circumstances of this case nor the petitioners can be permitted to blow hot and cold in the same breath. Moreso, when admittedly the first limb of Mr. Jhoja's argument on the point of limitation was rightly repelled by the learned Judge in Chambers on the strength of Nazeef (supra). Moreover, the judgment in Maqbool Ahmad (supra) was to take effect on 31st of August, 1991 and as the judgment of the 1st Appellate Court favouring the respondents was made on 28-1-1979, the precedent will not have any retrospective effect.
13. For all that has gone before, the instant petition is dismissed and leave refused.