2010 SCMR 1042 (PLP)

KHILJI ARIF HUSSAIN, J.

This appeal, with leave of the Court, is directed against the judgment and decree dated 16-11-2005 passed by learned Single Judge at Multan Bench of the Lahore High Court, allowing R.S.A.No.27 of 1991, tiled by the respondents/ plaintiffs, setting aside the judgment and decree dated 13-6-1991 passed by learned Additional District Judge, Layyah, and restoring that of dated 14-9-1989, passed by the learned trial Court decreeing the suit of the respondents/plaintiffs.

2. Leave to appeal was granted by this Court on 24-1-2006 to consider, apart from other points, whether the respondent was bound to bring the suit within a period of three years from the date of his attaining majority in terms of Article 44 of the Limitation Act.

3. Facts necessary to decide the appeal are that on 20-7-1972, respondent/plaintiff Muhammad Nawaz filed a suit against the appellants/defendants alleging that his father died during his infancy and his uncle Gul Muhammad, predecessor-in-interest of the appellants/ defendants, took care of them. The respondent/plaintiff challenged the registered sale-deed dated 18-9-1956 transferring the suit property in favour of the petitioners/defendants on the ground that he has not executed the same and has not sold his land to the sons of his said uncle Gul Muhammad.

4. After framing issues and recording the evidence, the trial Court decreed the suit of the respondent/plaintiff. However, the appellants/ defendants, feeling aggrieved, filed appeal, which was allowed by learned Additional District Judge,- Layyah, but there-against, the respondent/plaintiff preferred appeal, which has also been allowed by learned High Court, as stated and mentioned above, giving rise to this appeal.

5. Heard learned counsel and, with their assistance, perused the record.

6. Learned counsel for the appellants/defendants argued that the sale agreement was executed between the respondent/plaintiff on 23-5-1956 and sale-deed was registered on 18-9-1956 but the respondent/plaintiff despite attaining the age of majority on 29-9-1956, filed the suit for cancellation of the same on 20-7-1972. The respondent/plaintiff ought to have filed suit within three years from the date of attaining majority and the suit filed by him hopelessly barred by time was liable to be dismissed. To augment his contentions, learned counsel placed reliance on the cases of Buland Khan and 6 others v. Muhammad Rafiq and 6 others PLD 1979 Lah.237 and Yamin Khan and 5 others v. Rais Jhangli Khan and another 1999 CLC 1755.

7. On the other hand, learned counsel for the respondent/plaintiff argued that the sale-deed relied upon by the appellants/defendants was a forged and fabricated document and the respondent/plaintiff had never agreed to sell the property in question. The appellants'/defendants' father, with whom respondent's/plaintiff's mother got second marriage, taking advantage of the same managed the sale-deed in favour of the appellants/defendants.

8. We have taken into consideration the respective arguments of learned counsel for the parties and scanned the record very carefully. From the perusal of the record it appears that admittedly the sale-deed was got registered at the time when the respondent/plaintiff was minor. The agreement of sale was allegedly executed by the respondent/plaintiff himself and as such the said agreement was void ab initio as the respondent, being minor, was not competent to enter into an agreement. Section 11 of the Contract Act provides that every person, who is of the age of majority and who is not disqualified from contracting by law, is competent to contract.

9. Admittedly, on the date the alleged sale-deed was executed, the respondent/plaintiff was minor and as such was not competent to enter into an agreement.

10. In the case of Chairman District Screening Committee, Lahore and another v. Sharif Ahmed Hashmi PLD 1976 SC 258 a four Members Bench of this Court held as under: "There is great looseness in the use of the words "void" and "voidable" and very often they are used interchangeably. Nevertheless there is a clear distinction between things "void" and "voidable" though the two terms are not infrequently used without special regard for the difference or distinction particularly where such distinction is of no consequence or where the attention of the Court is not particularly directed to this distinction. The expression "void" in the strict or accurate sense means "absolutely null" that is to say incapable of ratification or confirmation and of no effect whatever. The word "voidable" on the other hand is something which could be avoided or confirmed and which is not absolutely void. In other words what is voidable has some force or effect, but which may be set aside or annulled for some error or inherent vice or defect. "Thus that which is voidable operates to accomplish the thing sought to be accomplished until the fatal vice in the transaction has been judicially ascertained and declared." (See Corpus Juris Secundum Volume 92 pp. 1021-19024). A common place instance of a void act or transaction in the sense of an absolute nullity is an agreement by a person under a legal disability e.g. a minor or a person of unsound mind. Such act is void ab initio and is incapable of ratification or confirmation. See section 11 of the Contract Act, 1872. Law forbids the enforcement of such a transaction even if the minor were to ratify it after attaining majority. This is clearly distinguishable from a case in which a thing or an act is "relatively void" which the law condemns as wrong to the individual concerned who can avoid it by appropriate proceedings. A common place instance of such transaction is that which is brought about by undue influence, fraud etc. Which remains of full effect unless avoided by appropriate proceedings. In the relevant field, an order of dismissal etc. of a Government servant by an authority who had ab initio no authority will fall under the first category. For instance. If the respondent had been retired by a Superintendent Police instead of appellant No.2 the order would have been void ab initio. On the other hand an order by competent authority but suffering from a procedural defect will be voidable and fall under second category. The first case is of total incapacity, assimilable to a defect falling under section 11 of the Contract Act and the resulting act is a dead letter. In the latter case, the order is by the competent authority though in violation of certain rules."

11. A three Members Bench of this Court in the case of Muhammad Ali through L.Rs. and another v. Manzoor Ahmed 2008 SCMR 1031 while relying upon the case of Chairman District Screening Committee, Lahore (supra), restored the decree dismissing the suit for specific performance of agreement entered into by a minor.

12. We are of the view that there is a distinction between an agreement of sale executed by a natural guardian or a guardian appointed by a Court and an agreement of sale executed by a minor. In the latter case, the minor ought to have question the validity of the sale within three years under Article 44 of the Limitation Act upon attaining majority whereas in the former case the sale transaction being void ab initio can be challenged within a reasonable period when the minor on becoming major acquired knowledge of the sale.

13. In the instant case, though the sale-deed was executed on' 18-9-1956 but the mutation in respect of the property in question was recorded in the Revenue Record some times in the year, 1972 and the respondent/plaintiff immediately on having information of the transfer of his property, filed suit for cancellation of the same on 20-7-1972.

14. The learned counsel for the appellants/defendants relied upon the case of Buland Khan and Yamin Khan (supra), where the agreement of sale was executed by the legal guardian of the minor's property, which is not the case in hand.

15. In the light of above discussion, we find no merit in this appeal, which is dismissed. No order as costs. S.A.K./M-43/SC Appeal dismissed.