' This judgment shall decide Civil Revisions Nos.62 and 63 of 1994 and as they arise out of a common judgment of a learned Additional District Judge, Rawalpindi.
2. On 15-2-1990 the petitioner in these two cases filed a suit against the respondents Nos. 1 to 6.
According to the plaint Allah Rakha and his brother (respondent No.6) were co-owners of Shop No.C-276, Rawalpindi City. Allah Rakha died in June, 1973 and was survived by the said respondents and one Mst. Rashida Bano as L.Rs. He purchased the 2/15 share of Mst. Rashida by means of registered sale-deed, dated 26-12-1988 and became co-owner in the shop. With these averments he sought the separate possession of the said 2/15 share in the said shop by partition. A written statement was filed by respondent No.6. He explained that C/W-276 was in fact a house, lower portion whereof was converted into a shop. This was transferred to Qamar Ahmed vide P.T.D. Dated 28-3-1963. He alienated the lower portion of the house vide registered sale-deed dated 4-6-1963 to the said respondent No.6, Allah Rakha and Muhammad Fazal Khan. On the same day by means of another registered sale-deed the upper portion was sold to the respondents and his brother Allah Rakha in equal share. Later he gifted away his share to his son Muhammad Bashir (respondent No.7). Allah Rakha died on 1-6-1973 leaving behind a widow and five daughters, including Mst. Rashida Bano and respondent No.6 as residuary being brother. The said Allah Rakha was also owner of a Houses Nos.B-271 and 247/576 share in lower portion of C-276. The respondent No.6 filed a suit against the said widow and daughters of Allah Rakha for partition of the said estate. A compromise was entered into. He surrendered his share in B-271 to the said widow and daughters of Allah Rakha and also paid sum of Rs.1,50,000 and they surrendered their shares in C-
276. The case was decided on 13-6-1978. Thus the said widow and daughters of Allah Rakha became exclusive owners of House No.B-271 and he became exclusive owner of C-276. He further stated that the said widow and daughters sold the entire house B-271 vide registered sale-deed dated 14-11-1978 to a son of one Faqir Muhammad. He thus stated that Mst. Rashida Bano was left with no interest in C-276 which she could transfer to the petitioner. He then stated that the shop in question C-276 was let out to the petitioner on 24-8-1978. When he transferred the property to his son (respondent No.7) the notice under section 13-A of the Urban Rent Restriction Ordinance, 1959, was served on 30-5-1988. He did not pay the rent. On 18-7-1988, an ejectment application was filed.
In response to the ejectment petition the petitioner filed a reply on 18-3-1989 disclosing that he had purchased the said share.
3. Another suit was filed by Muhammad Bashir respondent No.7 against the petitioner and Mst.
Rashida Bano claiming the declaration that the said sale-deed dated 26-12-1988 is void. In reply to this suit the defence was taken that Mst. Rashida was minor at the time the compromise was affected and as such her rights in the property are intact as leave of the Court was not obtained in terms of Order XXXII, rule 7 of the C.P.C.
4. Both the suits were consolidated. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit filed by the petitioner but decreed the suit -filed by respondent No.7 vide judgment and decree dated 30-11-1992. First appeals filed by the petitioner were dismissed by a learned Additional District Judge, Rawalpindi, on 4-1-1994.
5. Learned counsel for the petitioner argues with reference to the cases of Mst . Sahib-un-Nisa and others v. Mst. Mehmooda Begum PLD 1959 Lahore 511 and Ittoli Moidin Koya's son Koyatti and others v. Imbichi Koya and others AIR 1946 Madras 534 that the compromise proceedings recorded in the said partition suit had been recorded in violation of the terms of Order XXXII, rule 7, C.P.C. And as such the decree based thereon is nullity, so far as Mst. Rashida Bano vendor of his client is concerned. Learned counsel for the respondents, on the other hand, argues that there is no evidence on record that Rashida Bano was minor at the relevant time. Further contends that not only was the compromise for the welfare of the said minor but in fact was acted upon by her inasmuch as she sold away alongwith her other co-owners the House No.B-271.
6. I have examined the records of the trial Court records, which are available, with the assistance of the learned counsel for the parties. I have already reproduced the relevant contents of the pleadings of the parties above. Now there is no denial that respondent No.6 did file the said suit against the widow of Allah Rakha and his daughters; that there was a compromise the terms whereof are not questioned. It stands proved on record that it was recorded and further the said lady alongwith her mother and sisters proceeded to sell the house that was adjusted and held to be owned exclusively by the said ladies. At the same time it is apparent on the face of record that in the earlier suit filed by respondent No.6 (plaint Exh.D.4) Mst. Rashida Bano (the name recorded is only Bano but all present agreed that this is Rashida Bano) was described as a minor and was sued through Mst. Feroza Begum her mother. A written statement was filed by the said defendants on 9-4-1975 and it was filed on behalf of Mst. Rashida Bano by the said guardian ad litem i.e. Her mother Feroza Begum (Exh.D.5) I find that it was a fair statement. It was not seriously contested that the said properties are joint. The share was not denied. Only the plea taken was that the property described as shop C-276 has not been clarified. The reason for this plea was that it was explained that C-276 is in fact double-storey property and it was prayed that in case of partition both the said portions are to be partitioned. On 2-2-1977 (Exh.D.7) the parties got their statements recorded. The respective shares being claimed were admitted. Consequently a preliminary decree was passed and local Commissioner was appointed to propose the mode of partition. It was during the proceedings conducted by the said local Commissioner that parties arrived at the said agreement. The local Commissioner recorded the same and filed his report in Court on 20-5-1978.
Then vide Exh.D.10 the statement of local Commissioner was recorded in Court on 13-6-1978 who reported the details of the compromise. The statement of Allah Ditta respondent was recorded who paid Rs.1,00,000 in cash and promised to pay the remaining amount within two months. Feroza Begum alongwith the counsel for the defendants in the said case admitted the said statement.
Vide Exh.D. Lithe learned Court directed that Allah Ditta will pay the balance amount on 13-10-1978 in the Court otherwise his suit will be dismissed and on the said payment he will be deemed to be owner of shop C-276 exclusively while the said defendants shall be deemed to be owners of house B-271. Vide registered sale-deed, dated 18-11-1978 (Exh.D.13) Mst. Feroza Begum and all her daughters including Mst. Rashida Bano stated to be aged 20 years, sold away the said house B-271 to Abdur Rashid son of Faqir Muhammad. Now it is in the said sale-deed that the said ladies became the owners of the said house by means of the said decision dated 13-6-1978 of Hafiz Khalil Ahmed, Civil Judge, Rawalpindi. Vide sale-deed dated 26-12-1988 (Exh.P.W 1/4) said Rashida Bano proceeded to sell 247/4320 share of 247/576 share of shop' C-276 in favour of the petitioner. It is further matter of record that Rashida Bano never took any step to avoid the said decree.
7. Now before proceeding further I may say that learned Additional District Judge in his impugned judgment has proceeded on very dangerous course which might have proved disastrous to the contesting respondent No.7 in this case. He says that since in the said sale-deed Exh.D.13 the age of Rashida Bano is recorded as 20 years and the document is dated 18-11-1978. She had attained majority at the time of said compromise and as such Order XXXII would not be applicable.
However, while doing so learned Additional District Judge has not taken note of the fact that suit Exh.D.4 was filed on 10-10-1973. According to the said reasoning of the learned Additional District Judge himself Rashida Bano was minor at the time of institution of the suit and there is no cavil that she was sued as such by her mother Feroza Begum. Learned Additional District Judge has lost sight of the fact that going by his logic she may not be even a party to the suit being major and represented by guardian ad litem.
8. Now Order XXXII, Rule 3(5), C.P.C. Provides that a person appointed to be guardian for the suit for a minor shall, unless his appointment is terminated, by retirement, by removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in the Appellate or Revisional Courts and any proceedings in the execution of a decree. It will thus be seen that according to this provision of law the attaining of majority by such a minor is not to be a reason for discontinuous of the appointment of the guardian ad litem. Mr. Manzoor Ahmad Rana, learned counsel for the respondents has drawn my attention to a judgment in the case of Mst. Afzal Begum and others v. Y.M.C.A. PLD 1979 SC 18 wherein the Honourable Supreme Court has observed that when a minor attains majority, in such a case, it will be for the minor to approach the Court and to make a report and opt to continue with the suit himself as major. Failing adoption of such a procedure the authority of guardian ad litem shall continue and minor will be bound by act of the said guardian.
9. Now it has to be seen whether in the said circumstances of the case the non-compliance with the said provision of Order XXXII, Rule 7 would render the said proceedings and decree to be void. I may state here that a compromise recorded without leave of the Court is not an absolute nullity. It is however not binding on the minor who has option either to affirm and ratify or avoid it. Thus such a minor upon attaining majority can challenge the said decree on the said ground. I have already stated above that it stands proved on record that the said lady did ratify the compromise by selling away the house she and her mother and sisters got as a result thereof and this was done by her within matter of days after the saiddecree vide Exh.D.13. Although she was party to one of the suits i.e. The one filed by respondent No.7, she had not appeared and no evidence has been led as to whether the said guardian ad litem had acted in a manner adverse to said lady.,I may here refer to a judgment of the Honourable Supreme Court in the case of Jafar Abbas and 2 others v. Ahmad and another PLD 1991 SC 1131. In the said case the Adyocate and attorney appointed by the guardian ad litem of the minor who was his. Uncle, entered into an agreement to abide by oath of third party. The decree so passed was challenged on the grOund that the provision of Order XXXII, rule 7, C.P.C. Has not been complied with. Honourable Supreme Court of Pakistan observed as follows in para.8 of the judgment appearing at pages 1136 and 1137 of the report:-- "8. The object of Order XXXII, Rule 7, C.P.C., in imposing restriction on the powers of next friend or guardian of minor, to enter into an "agreement or compromise" on behalf of the minor, without leave of the Court recorded expressly, is to protect the minor's rights in the suit from being adversely affected by negligence or wrongful act of the guardian: While allowing leave, the Court should bear in mind the interest of the minor and see that the compromise is beneficial to him. In this case the interest of the minor and the two adult defendants are identical; one of whom is his mother and the other uncle and guardian ad litem. There is absolutely no allegation that the guardian acted negligently or was in collusion with the opposite side. Upon the facts of the case and the law on the subject, we ate of the view that the leave of the Court was not necessary and minor was bound by the agreement."
10. It will thus be seen that what needs to be considered is as to whether the said agreement/compromise can be said to have adversely affected her interest In this case her mother was guardian ad litem. Her four others sisters were party. The interest was identical. There is no allegation and of course no evidence on record that said guardian at litem acted fraudulemly in the manner. At the cost of repetion I may again state that the decree and proceedings had never been challenged by the petitioner. It was in the year 1988 i.e. 10 years after the event and of course having sold away the house and of course the receipt of the said money paid in Court by respondent No.6 that she proceeded to sell said share in the suit property in favour of the petitioner.
11. Having thus examined the entire evidence on record, I do find that the said plea taken by the petitioner has no force. Both the civil I. Revisions are accordingly dismissed with costs throughout.
' The trial Court records be remitted back immediately.