PLJ 2023 Lahore 83
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Guardian and Wards Act, 1890, S. 29--Suit for specific performance--Dismissal of suit--Concurrent findings--Agreement to sell--Suit property was owned by minor--Mother of minor was appointed as guardian--Sale agreement without prior approval of Guardian Court--Challenge to--Mother of minor did not obtain any permission of Court concerned, because she was not allowed to alienate, transfer, gift or mortgage property owned by minor--Mother of minor was not competent to enter into any agreement to sell with regards to disputed property--Alleged agreement to sell executed by mother of minor in favour of present petitioners is void and petitioners cannot seek its performance with aid of Court by filing civil suit--Courts below while construing law on subject and appreciating evidence on record have reached to a just conclusion and have rightly non-suited petitioners; concurrent findings recorded on facts, when do not suffer from any misreading and non-reading of evidence--Civil revision dismissed.
[Pp. 84, 85 & 86] A, B, C & D
2008 SCMR 1031, 2014 SCMR 1469, 2014 SCMR 161 and
2017 SCMR 679 ref.
Mr. Khalid Pervaiz Warraich, Advocate for Petitioners.
Date of hearing: 11.1.2022.
PLJ 2023 Lahore 83
Present: Shahid Bilal Hassan, J.
AFZAAL AHMAD BUTTAR and another--Petitioners
versus
MUHAMMAD YOUSAF--Respondent
C.R. No. 520 of 2022, decided on 11.1.2022.
Order
Tersely, the petitioners instituted a suit for specific performance against the respondent/minor (Muhammad Yousaf) through his real mother Azra Tehsin, on the basis of an agreement to sell dated 05.12.2003, with respect to the suit property measuring 49-Kanals 09-Marlas falling in Khewat No. 388, situated in Mauza Ferozwala, detailed in Paragraph No. 1 of the plaint. It was maintained by the petitioners that suit property was owned by respondent/minor; that mother of the respondent namely Mst. Azra Tehsin was appointed guardian by Guardian Court at Gujranwala vide order dated 24.05.2003; that mother/guardian of the respondent entered into an agreement to sell dated 05.12.2003 germane to the suit property for a consideration of Rs. 20,00,000/-, out of which Rs. 15,00,000/- were paid in presence of the marginal witnesses and possession of the suit property was delivered to the petitioners; that as per terms, the mother/guardian of the minor/respondent within 15-days of issuance of guardian certificate was bound to execute registered sale deed in favour of the petitioners after receiving the remaining sale consideration Rs. 500,000/- but later on she procrastinated and ultimately refused; hence, the suit. The respondent/defendant was proceeded against ex-parte on 26.03.2007 after observing all legal and codal formalities for procuring attendance.
Ex-parte evidence of the petitioners, oral as well as documentary, was recorded and thereafter the learned trial Court vide impugned judgment and decree dated 28.02.2018 dismissed suit of the petitioners for specific performance, however, entitled the petitioners to recover Rs. 15,00,000/- from the respondent/defendant. The petitioners being aggrieved of the same preferred an appeal but remained unsuccessful vide impugned judgment and decree dated 01.11.2021; hence, the instant revision petition under Section 115 of the Code of Civil Procedure, 1908.
2. Heard.
3. There is no denial to the fact that the suit property is owned by minor and the same remained situation at the time of alleged agreement to sell (Ex.P1) dated 05.12.2003, which was entered into between the petitioners and the mother of the minor who was admittedly appointed as guardian of the minor on 24.05.2003 and guardianship certificate (Ex.P3) was issued in her favour on 17.07.2003. However, before entering into any such transaction with the petitioners, the mother of the minor did not obtain any permission of the Court concerned, because she was not allowed to alienate, transfer, gift or mortgage the property owned by the minor, rather an impediment was put on such right of the guardian towards the property of the minor as is evident from the guardianship certificate (Ex.P3). When the position was as such the mother of the minor was not competent to enter into any agreement to sell with regards to the disputed property, owned by the minor, because Section 29 of the Guardian and Wards Act, 1890 puts a clog in the manner:-
‘29. Limitation of powers of guardian of property appointed or declared by the Court. Where a person other than a Collector or than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court.
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward, or
(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be minor.’
Thus, as stated above, the alleged agreement to sell (Ex.P1) was entered into by mother of the minor without seeking prior permission of the Court concerned, therefore, the same is void ab initio, which does not create any legal rights or liabilities in favour of the petitioners/vendees and the same cannot be enforced against the minor/respondent. In such scenario, this Court observes that the alleged agreement to sell (Ex.P1) executed by mother of the minor in favour of the present petitioners is void and the petitioners cannot seek its performance with the aid of the Court by filing civil suit. In Muhammad Ali through L.Rs. and another v. Manzoor Ahmed (2008 SCMR 1031), the Apex Court of the country, while referring the ratio, rendered in case of Chairman, District Screening Committee, Lahore, has held:
‘In the case of the Chairman, District Screening Committee, Lahore v. Sharif Ahmad Hashmi PLD 1976 SC 258 it was laid down that an agreement by person under a legal disability e.g. a minor was void ab inito and was incapable of rectification or confirmation. Law forbids such a transaction even if the minors were to ratify after attaining the age of majority. Therefore, the suit of the respondent against the petitioners for specific
performance of the alleged agreement of transfer of 5 Killas of land could not be decreed. Needless to observe that Sultan, the Petitioner No. 2, was not even a party to the alleged agreement. The impugned judgment is not sustainable at law.’
4. In view of the above, it can safely be observed that the learned Courts below while construing law on the subject and appreciating evidence on record have reached to a just conclusion and have rightly non-suited the petitioners; therefore, the concurrent findings recorded on facts, when do not suffer from any misreading and non-reading of evidence, howsoever erroneous, cannot be interfered with in exercise of revisional jurisdiction under Section 115 of the Code of Civil Procedure, 1908. Reliance is placed on Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161) and Muhammad Farid Khan v. Muhammad Ibrahim, etc. (2017 SCMR 679).
5. In view of the above, the learned Courts below have rightly exercised vested jurisdiction and have not committed any illegality and irregularity while passing the impugned judgments and decrees, warranting interference by this Court in exercise of revisional jurisdiction. Resultantly, while placing reliance on the judgments supra, the civil revision in hand, having no force and substance, stands dismissed, in limine.
(Y.A.) Civil revision dismissed
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