2023 MLD 665
Adverting to the core issues as to the validity of impugned gift mutation and limitation, it is observed that mutation was mainly questioned by the respondent on the ground that at the time of its attestation, she was not only minor but she did not participate in the proceedings. To this effect, she asserted in her plaint that she born in the year 1958 whereas this fact was seriously refuted by the petitioners on the other hand. From the mere glimpse of the gift mutation (Exh.P2), it can be observed with naked eyes that mutation was attested merely on the statement of Mst. Seesan and the respondent was not present at that time.
The first and foremost question which thus emerges is as to whether the respondent was minor at the relevant time?
In terms of section 3 of the Majority Act, 1875, every child having less than age of eighteen years is deemed to be minor. Section 11 of the Contract Act, 1872 ordains that every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject. In other words, it can be said without any hint of doubt that a minor cannot enter into any contract. Chapter 11 of Muhammadan Law by Dinshah Farduji Mullah (D.F. Mulla's) deals with the gifts. Para-139 postulates that every Muhammadan of Sound mind and not a minor may dispose of his property by gift. It is thus duly established on the record that the respondent was minor at the time of attestation of gift mutation, which was sanctioned on the basis of statement of Mst. Seesan, who was neither the guardian of the respondent nor she was authorized to enter into such transaction on behalf of respondent. In view thereof, gift mutation is clearly a void instrument.
Now coming to the question of limitation vehemently raised by learned counsel for the petitioners, it is observed that in terms of Section 6 of the Limitation Act, 1908, where a person entitled to institute a suit or proceeding or make an application for the execution of a decree is, at the time from which the period of limitation is to be reckoned, a minor, or insane, or an idiot, he may institute the suit or proceeding or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the First Schedule or in section 48 of the CPC. By virtue of Article 120 of the Limitation Act, 1908, the respondent was obliged to bring her suit challenging the validity of gift mutation in ordinary circumstances within six years when the right to sue accrued. The respondent was since minor at the relevant time, so under Section 6 of the Limitation Act, 1908, she was obliged to institute the suit within said period after becoming major.
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