MAULVI ANWARUL HAQ, J.--- Some admitted facts of this case are that the suit plot was allotted to Musawar A.I Khan, the predecessor-in-interest of the petitioners and respondents Nos. 2 to 8, by respondent No. 9. He paid the price, got the map. Approved and built a house thereon. Before the conveyance could be executed in his favour, he died on 8.6.1968. On his death, the petitioners and respondents Nos. 2 to 8 were entered in the record of respondent No. 9 as his legal representatives.
Respondents Nos. 2 to 8 proceeded to enter into an agreement with respondent No. 1 whereby the entire suit property was transferred to respondent No. 1 for a consideration of Rs.80,000/-. Out of this amount the share payable to the petitioners was worked out as Rs.36,666/- and was deposited in a bank in trust for them. The plot was thus transferred to respondent -No. 1 on 15.3.1971.
2. On 26.5.1977 the petitioners filed a suit seeking a declaration that the said transfer in favour of respondent No. 1 in as much as it purports to be on their behalf is void as they were minors at the time the alleged transfer was made and no lawfully appointed and lawfully authorised guardian entered into the agreement on their behalf. They sought a declaration that the transfer be declared to be void and ineffective upon their right. The suit initially was contested only by respondent No. 1 who informed the Court that he had further transferred the plot to respondents Nos. 10 and 11. Consequently, the said respondents were impleaded as parties. The defence taken by the respondent No. 1 as also respondents Nos. 10 and 11 was that although the petitioners were minors at the time of the said transfer in favour of respondent No. 1 yet no prejudice has been caused to them as their share of the consideration was kept intact in their respective accounts. Another common plea raised by the said respondents was that the respondent No. 2 had undertaken that if the respondent No. 1 was to lose the property on account of minority of the petitioners he will compensate him.
Respondent No. 9 also put in a written statement wherein a prayer was made for dismissal of the suit with special costs but otherwise the contents of this written statement are meaningless, so far as the controversy in hand is concerned. Following issues were framed by the learned Trial Court on 26.7.1977:- "(i) Whether this suit cannot proceed in its present form?
(ii) Whether the plaintiffs have no locus standi and cause of action to bring this suit?
(iii) Whether Ghazanfar Hussain, etc. Are the necessary parties to this suit, if so what are their particulars and what is the effect of their non-joinder?
(hi) Whether defendant No. 1 is entitled to recover special costs from the plaintiffs?
(v) Whether this suit has been improperly valued for the purposes of Court-fee and jurisdiction?
(vi) Whether the rights of the plaintiffs in the suit property have been validly transferred to defendant No. 1, if so when and with what effect?
(vii) Whether the proceedings of the transfer of rights of the allotment to the suit property in favour of defendant No. 1, are illegal valid, without authority and in operative as against the rights of the plaintiffs for the grounds mentioned in the plaint?
(viii) Whether the agreement of transfer of rights in favour of the defendant No. 1 is illegal, void, collusive, mala fide, and in operative as against the rights of the plaintiffs?
(ix) Whether the plaintiffs are the owners in possession of the suit property and whether they are entitled to the injunction prayed for by them?"
3. On 9.5.1979, the said issue No. Ill was struck off and following two issues were framed:- "(10) Whether the plaintiffs have not come to the Court with clean hands, and are estopped from filing the suit?
(11) Whether defendant No. 1 had sold the entire suit property with possession to defendants Nos. 10 and 11, so. Its effect? OPD 1.0 and 11"
4. Evidence of the parties was recorded. The learned Trial Court dismissed the suit vide judgment and decree dated 18.4.1987. The learned Trial Court found all issues in favour of the respondents except issue Nos. IV and V. Feeling aggrieved, the petitioners filed first appear which was heard by a learned Additional District Judge. Sargodha. The learned Additional District Judge reversed the findings of the learned Trial Court on issue No. VI holding that the transfer by or on behalf of petitioners in favour of respondent No. 1 was not valid. He then proceeded to observe that petitioners Nos. 5 and 6 have ratified the agreement by operating their accounts in the National Bank and consequently he answered issue No. VI in favour of petitioners Nos. 1 to 4. Despite the said finding on issue No. VI the learned Additional District Judge opted to maintain the judgment and decree passed by the learned Trial Court and dismissed the appeal on 6.6.1988.
5. Mian Nisar Ahmad, learned counsel for the petitioners argues that admittedly the petitioners were minors at the time of the transfer in favour of respondent No. 1 and the said transfer was illegal and void so far as the petitioners are concerned. Learned counsel complains that even the learned Additional District Judge was constrained to reverse the findings of learned Trial Court on issue No. VI yet he did 'not grant the relief prayed for. According to the learned counsel, there is no concept of ratification of a void contract. Further contends that the deposit of consideration in the accounts of the minor petitioners would be of no avail and would be of no relevance in judging the validity of the-contract. Also question& the findings of the learned Courts below as to the maintainability of the suit in the present form. Generally challenges the findings of learned lower Courts on issues decided against his clients. Syed Iftikhar Hussain Shah. Learned counsel for respondents Nos. 10 and 11 on the other hand tries to support the impugned judgment and decree by-attacking the form of the suit and stating that the contract stood ratified by some of the petitioners.
6. I have gone through the copies of the records appended with this C.R., with the assistance of the learned counsel for the parties. As stated by me above there is no dispute whatsoever that the petitioners were in fact minors at the time their property was transferred in favour of respondent No. 1. It is also admitted position that no lawfully appointed and lawfully authorised guardian entered into the transaction with respondent No. 1 for and on behalf of the petitioners. The contract, therefore, squarely falls within the mischief of Section 11 of the Contract Act, 1872 and is void. This in fact is also the finding of the learned Additional District Judge. The finding has not been challenged by filing cross-objections and even the learned counsel for the respondent has not made even an attempt to challenge the same invoking his right under Order 41, Rule 22, C.P.C. It thus stands established that the contract on behalf of the petitioners was void.
7. The learned Additional District Judge after holding the contract to be void has proceeded to, non-suit the petitioners on the following grounds:-
(i) Petitioners Nos. 5 and 6 have ratified the contract by operating their accounts in National Bank.
(ii) The interests of the minors were safeguarded by respondent No. 9 by deposit of their share of the consideration in the National Bank.
(iii) The petitioners have not been prejudiced because the transaction in question is mere an agreement in favour of respondent No. 1 and it does not create any title in favour of respondent No 1.
(iv) Since the respondents Nos. 2 to 8 have remained absent in the Trial Court as well as in the Court of first appeal, the said fact speaks for collusion between the petitioners on the one hand and the said respondents Nos. 2 to 8 on the other.
(V) The petitioners are not in possession of the suit property and suit for declaration and injunction is not maintainable.
8. So far as the said first reasoning is concerned, I am in complete agreement with the learned counsel for the petitioners that the contract by a minor being void there is no question of its ratification by the minor after attaining Majority. Learned counsel relies on the case of Govind Ram Vs. Piran Ditta and others (AIR 1935 Lahore 561). In this case a Full Bench of this Court observed that "since the contract entered into, by the minor during his minority is a nullity and un-enforceable at law, no question therefore of its ratification arises."
9. In the case of the Chairman District Screening Committee, Lahore and another Vs. Sharif Ahmad Hashmi (PLD 1976 SC 258), although the case did not pertain to a contract by a minor yet the Supreme Court of Pakistan observed at page 264 of the report:- "A common place instance of a void act or transaction in the sense of an absolute nullity is an agreement by a person under a legal disability e.g. a minor or a person of un-sound mind. Such act is void ab initio and is incapable of ratification or confirmation. Law forbids the enforcement of such a transaction even if the minor were to ratify it after attaining majority."
10. In view of the abovesaid proposition of law there was no question of ratification of the void contract by any of the petitioners.
11. Even on the factual plank .I have failed to find any evidence on record that any of the petitioners had withdrawn the money deposited knowingly that the same constituted consideration for the void contract.
12. So far as the said second reason is concerned, the same is also fallacious. The learned Additional District Judge lost sight of the fact that the contract being void as a whole the said consideration was also unlawful. Under the law it shall be deemed that the minors were not a party at all. They did not rather could not accept a proposal or to settle any consideration or to receive any consideration for the same deposit and that too by the respondent No. 9 would be of no relevant in order to adjudge the validity of the contract which was void ab initio.
13. So far as the said third reasoning is concerned, although the learned Additional District Judge has stated a correct proposition of law that the agreement simpliciter does not create any title yet the learned Additional District Judge failed to see that the effect of the said agreement was that the names of the petitioners were removed from the records of the respondent No. 9 and instead the name of respondent No. 1 was entered therein as a transferee:: This does prejudice the-minors. .
14. So far as the said fourth reason is concerned, to my mind, it seems to be ridiculous. In fact, upon reading of the pleadings, issue No. IX does not arise at aft. In any case there is not an iota of evidence on record to show that the suit in any manner was collusive as held by the learned Additional District Judge.
15. So far as the said fifth reasoning is concerned, suffice it to say that in case of success by the petitioners in obtaining the sought for declaration they would become co-sharers in the suit property and in any case the petitioners and respondents Nos. 2 to 8 according to-Muslim law are co-sharers in the estate of deceased transferee. They-, were not at all .Required to sue for possession. In fact, a suit for possession itself would not be maintainable as the only suit competent would be a suit for partition.
16. In view of the said discussion, the findings of learned Additional District Judge on issue No. VI in as much as he holds that petitioners Nos. 5 and 6 ratified the contract are reversed and issue No. VI in its entirety is decided in favour of the petitioners. Findings on issues. Nos. I. VII, VIII. IX and 10 are also reversed. So far as issue No 11 is concerned it is held that the sale by respondent No. 1 in favour of respondents-Nos. 10 and 11 which is admittedly pendent lite, shall be of no effect, so far as the rights of the petitioners in the suit property are concerned. I may point out here that P.W.1.
Muhammad Aslam, an official of respondent No. 9 has stated with reference to records that the agreement in favour of respondents Nos. 10 and 11 has not been implemented in the records of respondent No 9.
17. The learned lower Courts have acted without jurisdiction and without lawful authority in up- holding a contract which was void ab initio and as such the impugned judgments do fall within the mischief of Section,115, C.P.C. This C.R. Is accordingly allowed. The judgments and decrees of both the learned lower Courts are set aside and the suit filed by the petitioners is decreed with costs.