MAULVI ANWARUL HAG, J.-- On 30.1.1984 the petitioner filed a suit against the respondents. I may state here that the parties are children of Ch. Hidayatullah. In the plaint it was stated that the parties entered into agreement dated 13.1.1984, whereby it was agreed that none of the parties who were co-sharers in the property left by their father shall alienate the same, and the suit property comprised of a house and a ship. Regarding the house it was agreed that the sister wilt be paid her share in the house in the form of a plot while the shop will not be partitioned; that in violation of the said agreement the respondents have taken steps to alienate half share of the house vide agreement dated 25.1.1984 for a consideration of Rs. 1,00,000/-, thereafter the agreement was amended and the consideration was settled at Rs. 3,00,000/- vide document dated 28.1.1984. With these averments a permanent injunction was sought restraining the respondents from alienating, the suit property, The respondents contested the suit with the plea that the agreement dated 13.1.1984 is illegal and they are not bound by it. A preliminary issue was framed as to whether the agreement is illegal and the same was answered in favour of the respondents by the learned Trial Court on 5.3.1984. The suit was dismissed. The petitioner filed an appeal which was heard by a learned Additional District Judge, Toba Tek Singh who dismissed the same on 9.7.1984.
2. Learned counsel for the petitioner argues that the agreement was legal and enforceable as its purpose was to keep the suit property intact under a family arrangement. Learned counsel for the respondents, supports the impugned judgments and decrees.
3. I have gone through the record. I find that through the present suit the petitioner sought, to enforce a stipulation in restraint of alienation of property. There is no dispute that the property the respondents are going to alienate does not belong to them. Such a stipulation is illegal. Section 10 of the Transfer of Property Act, 1882 may be referred to in this behalf as it places a complete restraint on providing a condition or limitation restraining disposal of interest in property. I also agree with the learned Courts below that not only that the agreement is without consideration but also that the agreement falls squarely within the mischief of Section 23 of the Contract Act.
4. The matter can also be examined from another angle Article 23 of the Constitution vests every citizen of the country with a fundamental right to acquire, hold and dispose of property in any part of Pakistan. This fundamental right is only subject to the Constitution and any reasonable restrain by law in the public interest. To my mind no citizen of the country can contract out of the said right confirmed by the Constitution. Article 8(2) of the Constitution prohibits the State from making any law which takes away or abridges the rights conferred under Chapter I of the Constitution. The Courts have been vested with the authority to declare any law made in violation of the said command contained in the Constitution to be void. The Courts can, therefore, of course declare any act of the citizens themselves which constitutes abridgment of the said right to be void. It also needs to be stated here that the provisions of MLR 115 placing restrictions on alienation of agricultural land have since been declared to be against the Injunctions of Islam by Shariat Appellate Bench of the Supreme Court of Pakistan under Article 203-D of the Constitution. It can thus be said that the agreement in question is not only violative of the Constitution as also of the law of the land but also of Injunction of Islam.
5. This .Civil Revision is, therefore, without any force, is frivolous and as such is dismissed with costs throughout.