The respondents Muhammad Rafique and Muhammad Siddique challenged by a suit an alienation of their property by way of a mortgage made by their father by a registered deed dated 14-1-1954.
The suit was contested on various grounds including the point of bar of limitation under Article 44 of the Limitation Act. The learned trial Court, however, found all the issues in favour of the plaintiffs and decreed their suit on the 11th June 1966. The learned Additional District Judge maintained this decree in appeal. Hence this second appeal.
2. Two questions were raised by the learned counsel for the appellants. Firstly he argued on the strength of the Central Exchange Bank Ltd. v. Mst. Zaltoon Begum etc. (1) PLD 1968SC83 that the mortgage created by the father was within his legal authority under the Sharia and as such the suit was not maintainable. Secondly he argued that since a natural guardian including the father has power of alienation over the minor's property for certain legal necessities specified by the sharia, a transfer by him of property which is assailed on ground of being beyond those necessities would at most be a voidable transaction and would be hit by Article 44 of the Limitation Act.
3. Para. 362 of Mulla's Mahomedan Law (Sixteenth Edition) relates that a legal guardian of the property of a minor has no power to sell the immovable property of the minor except in the following cases, namely :-
(1) where he can obtain double its value ;
(2) where the minor has no other property and the sale is necessary for his maintenance ;
(3) where there are debts of the deceased, and no other means of paying them ;
(4) where there are legacies to be paid, and no other means of paying them ;
(5) where the expenses exceed the income of the property ;
(6) where the property is falling into delay ; and
(7) %hen the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution.
4. The mortgage in the present case has been effected, as stated in the written statement, for payment of land revenue payable by Faqi Muhammad Lambardar, wife's father of Muhammad Rafique plaintiff No. t and husband of the real paternal aunt of the plaintiffs. The payment o debt of a person though related to the minor is not one of the necessitiesdescribed in this para. Which is based on Baillie, pages 637-583 and Macnaghten, page 64. The necessities described above or necessities of the minor himself are those which would benefit him or his property. It is, therefore, established that the natural guardian has exceeded his authority in transferring the minor's property by mortgage in the present case.
5. Central Exchange Bank Ltd. v. Mst. Zaitoon Begum etc. Is not helpful to the appellants since it was a case of pledging of movable property which in that suit comprised of fixed deposit receipts. It was held by their Lordships that there was preponderance of opinion in favour of the father's power to pledge his minor son's goods for his own debt. This authority is not helpful for it deals with the power of a legal guardian under Shariat to sell or dispose of the movable property of the ward. The law regarding the power of the natural guardian regarding alienation or disposal of immovable and movable property varies. Their Lordships drew a distinction between movable and immovable property at page 95 of this report. While referring to the statement of law at page 345 of Jurisprudence by Abdul Rahim (1958 Edition) which "talks of the validity of transaction which may be profitable to the minors only" it was observed that the learned author "has drawn no distinction between movable and immovable property, though such a distinction is expressly drawn in the older authorities". Mulla has drawn this distinction in paras. 352 and 366. Para. 362 has already been referred to above. Para. 366 of Mulla's Mohammadan Law (16th Edition) states that a legal guardian has power to dispose of movable property only to meet minor's imperative necessities, such as food, clothing or nursing. The Supreme Court authority adds that the power to pledge minor's movable property can be exercised by the father even for the payment of his own debt.
This principle does not extend to the disposal of minor's property for payment of other relatives' debts.
6. The second argument of the learned counsel brings into glaring light the question whether the case is governed by Article 44 or Article 144 of the Limitation Act. The learned Additional District Judge applied Article 144 on the ground that Article 44 was applicable only to a case where the guardian is one appointed or declared by the Court under the Guardians and Wards Act and that the mortgage being void, this Article would not apply.
7. I do not agree with either of the two contentions. The learned counsel for the respondents has relied upon Sultan Ahmed v. Fauzal Katir (1) PLD 1954 Dacca 104), in which there is an observation that the use of the term "ward" in Article 44 is confined only to the alienation by person appointed or declared by the Court under the Guardians and Wards Act. This observation is mere obiter because this question did not arise in the circumstances of that case. It was found in that case that the person who had sold the minor's property was not a legal guardian at all but was at most a de facto guardian. It is an established principle of law settled by authorities of the superior Courts that an alienation of the property of a minor by a de facto guardian is void and not, merely voidable (see para. 364 of Mulla's Mohammadan Law (Sixteenth Edition). It was not necessary in the circumstances of the Dacca case to consider the scope of Article 44 which governs only voidable transactions as distinguished from them which are void ab initio.
8. It is established on good authority that an alienation by a natural guardian otherwise than for legal necessity is voidable and not void. See Data Ram v. Raga Nath(116 I C 893) ), Mon Mohan Bhattacharjee and others v. Bidhu Bhusan Dutta and others ( AIR 1939 Cal. 460), Deivachila Aiyangar v. Regupathila Venkatchariar and othersA I R 1926 Mad. 46 ), Satish Chandra Guha v. Chunder Kant Pyne and others (3 C W N 278), Brojendra v. Prasa Kumer (59 I C 589 (Cal.)), Shampuri and others v. Ramchandra and others (AIR 1925 Nag. 385), Laxmaya Muchappa Nasipudi v. Rachappa Chanbasappa Karveershetti (I L R 42 Bom. 626=461 C 22), Pagirappa v. Laxmanud (I L R 44 Born. 742=58 1 C 257), Krishna Dhone Bhattacharjya v. Bhagaban Chandra Bhattacharjya and others (134 I C 188), Said Shah v. Abdul Shah (19PR1902), Tara Chand v.
Murlldhar (61IC384), Labha Mal v. Malak Ram (891 C 602==AIR 1925 Lah. 619) and Khushia v. Faiz Muhammad Khan and another (AIR 1928 Lah. 115). In the last mentioned case it was held as follows by a Division Bench of the Lahore High Court : "An alienation by a natural guardian of the minor's property is a voidable and not a void transaction ; and the fact that it was not for necessity does not alter the nature of the transaction. It is an unautborised transfer by an authorised guardian and the limitation to set aside such a transfer is prescribed by Article 44."
9. Most of the authorities deal with the question of alienation of a Hindu minor's property by his natural guardian but that cannot be a distinguishing feature since Hindu Law also allows such guardian in the management of minor's estate, to sell or mortgage any part thereof in case of necessity or for the benefit of the estate (Principles of Hindu Law by Mulla, 12th Edition, para. 528).
The Guardians and Wards Act has also applied the same principle in section 30 and provides that a disposal of immovable property by a guardian in contravention of sections 28 and 29 is voidable at the instance of any other person affected thereby. The principle in these three Laws referred to above is the same.
10. Article 44 provides for a period of three years for a suit by a ward who has attained majority, to set aside a transfer of property by his guardian. This Article is of wide import and includes even a natural guardian. The use of the word `ward' in it cannot justify the narrower interpretation since that use of the word "guardian" calls for the use of correspondent term `ward' which means 'a person, as a minor, under a guardian'. There is nothing in it to restrict its applicability to the matters governed by the Guardians and Wards Act. In fact the authorities reproduced above which have applied Article 44 of the Limitation Act are all cases of natural guardians who were not declared as such by any Court under the Guardians and Wards Act. In view of the finding that the transaction is voidable, this is the only Article which would apply to the facts of the case.
11. In the present case, it is evident from Exh. P. 6 that Muhammad Rafique plaintiff was born on the 7th July, 1938. According to the evidence of P. W. 1, Muhammad Siddique was younger to Rafique by three years which means that he was born in the year 1941. There is no evidence that the Court appointed any guardian for them. They, therefore, acquired majority in 1956 and 1959 respectively.
Muhammad Rafique could have filed his suit by 1959 while Muhammad Siddique's suit would have been competent if it had been so filed by 1962. The suit in the present case was filed in 1964. It was, therefore, barred by time.
12. 1 allow this appeal, set aside the decree of the learned Courts below on the point of limitation and dismiss the plaintiffs' suit. The parties shall, however, bear their own costs.