P L D 2004 Lahore 255 (PLP)

5. On 6‑11‑1993 and 9-7‑1996, this appeal was withdrawn respectively against respondents at Serial Nos.48 to 50 and respondents Nos.3, 9 to 9 (f), 13 to 17, 26 to 30, 32 and 33 by the appellant, wherefore, the appeal to the extent of said respondents was dismissed as withdrawn. On 24‑2‑2003, remaining respondents were proceeded against ex parte owing 'to non‑appearance and that of their learned counsel. However, upon C.M. No.1‑C of 2003, order of ex parte proceedings against the said respondents was recalled through order dated 29‑4‑2003 and the appeal as finally heard on 3‑10‑2003.

5. The learned counsel for the parties read out the entire record and evidence.

6. I have considered the submissions of the learned counsel for the parties and have also examined the evidence as well as record of the case with able assistance of the learned counsel for the parties.

7. The learned Additional District Judge set aside judgment and decree dated‑28‑3‑1988 passed by, the learned Civil Judge decreeing appellant's suit, by settling Issues No.1 to 5 against the appellant. The learned Additional District Judge deciding Issues Nos. 1, 2, 4 and 5 held that appellant was merely Benamidar and father of the appellant was the real owner of the suit‑land at the relevant time, who thus validly sold the suit‑land to the respondents through incorporation of the impugned Mutation No. 18 dated 6‑12‑1972. And as such, respondents being purchasers from the appellant's father i.e. the real owner and the vendors, were entitled to protection under section 41 of the Transfer of Property Act, "as in 1972, there was nothing visible at that time that the property in dispute belonged to appellant "who later on asserted his minority at the time of sale". And the suit was manoeuvred by father of the appellant to harass and blackmail the respondents owing to increase in the value of land. On Issue No.3 relating to limitation, the learned Additional District Judge was of the opinion that the suit was barred by limitation for being beyond the period of three years from the date of cessation of minority. Findings of the learned trial Court on Issue No.6 (purported unauthorized amendments in the plaint) was upheld that no unauthorized amendments were made by the appellant‑plaintiff in the suit.

8. The above synopsis of the impugned judgment reveals that Issues Nos. 1, 2, 4 and 5 have been settled by the learned Additional District Judge on the basis that at the time of sale and incorporation of Mutation No. 18 dated 6‑12‑1972, appellant's father (Superintendent of Police in the Police Department) was the real owner of the suit‑land as he could not have obtained the suit‑land in his own name being a Police Officer and thus the appellant was only an ostensible owner. Examining the above‑referred findings of the learned Additional District Judge in the case perspective as built in pleadings and evidence, the following facts have emerged as the settled undisputed and now admitted facts between the parties through concurrent, findings of facts by the learned Courts below and submissions made by the counsel at bar that: (i) Impugned transaction of sale in favour of the relevant respondents was incorporated in Mutation No. 18 dated 6‑12‑1972; (ii) the suit‑land at the time of sale and mutation was in the name of the appellant: (iii) at the time of sale of the suit‑land and its incorporation said mutation, the appellant was a minor, who attained on 30‑3‑1974; (iv) the sale transaction was made by Qazi Muhammad Anwar Birlas i.e. father of the appellant on behalf of his minor son; and (v) the suit to avoid the above sale transaction and mutation on the ground of incapacity as minor, was filed by the appellant on 31-7‑1974 i.e. after 3 years and 4 months of attainment of majority.

9. The learned counsel for the parties on specific question from the Court categorically stated that none of the above facts are disputed facts at the stage of present appeal. The decision of this appeal thus hinges upon the following two questions: (1) Whether appellant's father was the real owner competent to sell the suit‑property at the time of sale and its incorporation in Mutation No. 18, dated 6‑12‑1972? and (2) Whether the period of limitation available with the appellant to file suit dated 31‑7‑1977 was 3 years from 30‑3‑1974 Le the date of cessation of minority or 12 years from the date of impugned mutation dated 6‑12‑1972?

10. To resolve the tangle of question No. 1, pleadings of the respondents/defendants in their written statements are pertinent. Respondents/defendants Nos. 1 to 6, 13, 14, 20, 21 and 26 to 28 in para. 1 of their written statement dated 3‑10‑1978 pleaded that appellant/plaintiff never purchased the suit‑property, which in fact belonged to his father who had purchased the land as real owner in the name of appellant/plaintiff as ostensible owner/Benamidar. And that it was the father of the appellant who had acquired the said property through corrupt and illegal means and then sold the same to the, respondents upon receipt of sale consideration through said mutation dated 6‑12‑1972. Respondents/defendants Nos.7 to 12, 15 to 19, 22 to 25 and 29 to 42 in their written statements dated 9‑6‑1980 reproduced the above pleadings. Respondents/defendants Nos.43 to 45 and 48 to 50 also submitted their identical written statement to plead that minor appellant had misrepresented himself as a major in 1972 in sale to the first vendees from whom these respondents/ defendants had made bona fide purchase with consideration without notice of defect in the title. The above pleas in the written statements were raised by the respondents/defendants in answer to the appellant's pleadings in the plaint that the said sale and mutation were invalid and void as the appellant was under an incapacity as a minor to make any such sales. Hence Issues Nos. 1 and 2 were framed by the learned trial Court.

11. The onus of Issue No.1 relating to status of the appellant's father as the real owner, was on the respondents/defendants while that of Issue No.2 qua invalidity of the sale transaction was upon the plaintiff/appellant. The plaintiff/appellant in affirmative evidence appeared as P.W.1 and deposed that he was a minor at the time of purported sale which was neither contracted by him nor did he receive any sale consideration thereof nor did he mutate the land to the respondents. And that hey came to know of the same in end 1975. And that no alternate land was purchased by his father in his name.

12. Though a number of questions were asked, from the appellant in the cross‑examination regarding the posting of the appellant's father as Superintendent of Police and his compulsory retirement in 1970 but not a single question was asked by the respondents/defendants from the appellant/plaintiff regarding original purchase or ownership of the suit- land or his ostensible ownership with real ownership purportedly vesting in his father.

13. Ilam Din, P.W.2, a servant of appellant's family stated that the land in question was transferred to the appellant's by his maternal side and that the appellant's mother used to manage the said property through tenants as the appellant was a child. In cross‑examination, a number of questions were asked from this witness regarding sale of some property or her own property by the appellant's mother but no question whatsoever was asked from P.W.2 as to the actual ownership ors ostensible ownership of the suit property.

14. The appellant again appeared as W.P.3 in the rebuttal evidence and stated in his examination‑in‑chief that his father had no relationship or interest in the suit‑land, which was gifted to him by his mother. Ana that his mother had purchased the said property through money and assets inherited by her from her Jageerdar father. And that apart from the suit‑land originally owned by her, his mother also owned land in the same village; part of which was sold away by her. And that since he was a child, his mother used to manage the suit‑land for him. And that he had not sold the suit property to any one nor did he receive any sale consideration. And that he, did not appear before the Revenue Officer in the mutation proceedings nor did he sign the same. And that he did not even know the respondents, who were in illegal occupation of the suit- land he had not sold or transferred the same to them. In the cross -examination, he credibly persisted with this statement. Again the respondents/defendants failed to ask or elicit any information favourable to them regarding the ostensible ownership of the appellant or the purported real ownership of his father.

15. The appellant produced Mutation No.111 (Exh.P‑8) of transfer of the suit‑land to him by his mother Zubaida Khanum as Hiba in 1965. The same was entered in the name of the appellant in Register Haqdaran e‑Zamin (Exh.P‑6) as well as in Khasra Girdawari (Exh.P‑7) thereafter.

16. The un-rebutted deposition of the appellant as P.W.1 and P.W. as well as Exh. P‑6 to Exh. P‑9 prove that the suit‑land was transferred to the appellant as donee by his mother Zubaida Khanum in 1965 and the same was so entered and continued to be reflected in the Revenue Record in the name of the appellant. It is thus evident that the suit‑land was never owned by the appellant's father Qazi Muhammad Anwar Birlas. The respondents except for blankly, generally and vaguely alleging the real ownership of Qazi Anwar Birlas in their written statement or in the statements of Salem Ullah (D.W.8) and Lal (D.W.5) were unable to produce any evidence to prove that the land in question was in fact originally purchased by the appellant's father who actually paid the sale price and got the same transferred in the name of his wife Zubida Khanum as Bainami owner. This in fact was not the case of the respondents/defendants. Their case was that Qazi Muhammad Anwar Birlas, a corrupt S.P., purchased the land and got the salve ostensibly transferred in the name of the minor appellant. It was never the case of the respondents that it was appellant's mother who was the ostensible owner holding land on behalf of Qazi Muhammad Anwar Birlas and subsequently she gifted the same to the appellant in 1965 upon instructions and desire of Muhammad Anwar Birlas. The respondents also did not summon the appellant's father or mother as witnesses to prove their plea of Bainami. The appellant's father or mother had never claimed to be real owners of the property. In view thereof, I have no reservation in endorsing the findings rendered by the learned Civil Judge in his judgment on Issue No.1 that the appellant was not the ostensible' owner of the suit‑land but was the real owner of the suit‑land.

17. The question of minority of the appellant was concurrently settled by the learned Courts below and respondents also accepted that at the time of sale and sanctioning of mutation on 6‑12‑1972, the appellant was a minor and he thus was admittedly under a legal incapacity under section 11 of the Contract Act to enter into the sale transaction or consent to the sale on his behalf. At the time of the sale transaction, the appellant had not attained the age of 18 years to be sui‑juris for validly entering into a sale contract. The sale transaction was thus void ab initio and the contract of sale had no legal existence. No rights or liablilities as claimed by the respondents arose from such a void transaction. The contract of sale was incapable of enforcement and could not even to set up as a valid defence plea to claim a right or title. The original purchasers thus had no title to pass to the subsequent vendees.

18. It is also well‑settled that the protection under section 41 of the Transfer of Property Act is not extendable in the cages of transactions, which are void ab initio. The learned Additional District Judge thus not only misread and ignored the evidence on record but also misinterpreted and overlooked the express provisions of section 11 of the Contract Act. Where-under the present sale was void for having been contracted during incapacity of the appellant. The invalidity of transaction arose from a legal incapacity and was thus incurable. The sale was void and not voidable.

19. In a similar matter, an Hon'ble Division Bench of this Court in the case of "Sher Baz Khan and 73 others v. Mst. Malkani Sahibzadi Tiwana and 2 others" (PLD 1996 Lahore 483) dilated upon the applicable principles of law. It was adjudged that any contract or transaction entered into with a minor was void ab initio as a minor could not give consent to create a binding contract. And that the principle of estoppel was not attracted in the case of a minor wherefore vendees could' not acquire a right or title under the void transaction. It was also observed that the natural guardian was competent to alienate the minor's property only if such alienation/sale, was in the interest of the minor as permissible under para. 362 of Muhammadan Law. And that nothing was brought on record to prove that the transaction in question was made by the appellant's father for the welfare of the minor and could be protected under any of the contingencies enumerated in the Muhammadan Law. The sales even if made by the natural guardian were invalid unless expressly proved to be for the benefit of the minor and the onus thereon was on the vendees to so prove.

20. In the present case, also, the respondents miserably failed to bring on record any evidence that the sale transaction and the mutation incorporating the same were made for the benefit or welfare of the minor. Peculiarly the respondents in this case canvassed a stand damaging to the interest, benefit and welfare of the minor appellant denying his title and by setting up a plea of ownership of suit‑property in the father of the appellant.

21. On the question of limitation, their lordships in the above case of Sher Baz Khan held that for suits to avoid sale transactions, period of limitation was six years from the date of accrual of cause of action, which was to arise to the suitor from the date of knowledge of a transaction. And that even otherwise, a minor being entitled to the benefit of section 6 of the Limitation Act, could institute the suit within six years from the cessation of his minority.

22. The Hon'ble Supreme Court of Pakistan in the case of "Moolchand and 9 others v. Muhammad Yousaf (Udhamdas) and 3 others" (PLD 1994 S.C. 462) was pleased to settle the law on the effect of sections 6 and 8 of the Limitation Act as under:‑‑ "After reading the case‑law mentioned in the preceding paragraph and language used in sections 6 and 8 of the Limitation Act, we feel inclined to form the view that combined effect of sections 6 and 8 is to enable a person who has been dispossessed during his minority to file a suit within three years of his attaining majority or within usual period of time ordinarily allowable to a major, which is longer. If minor attains majority after three years of cause of action he can sue within nine years from the date of attaining majority if period of limitation is 12 years. "

23. In the case of "Kasem Molla v. Fajel Shek and others" (PLD 1952 Dacca 347), interpreting sections 6 and 8 of the Limitation Act, it was held that the minor plaintiff, whose property was alienated by his mother during his minority, may not sue for declaration but may institute a suit for possession within a period of 12 years from the date of the sale or within 3 years from the date of his attainment of majority whichever may be the later date.

24. The learned Additional District Judge appears to have decided issue of limitation overlooking the cumulative effect of sections 6 and 8 of the Limitation Act as well as law laid down in the above judgments.

25. In this case, the sale mutation was sanctioned on 6‑12‑1972 during the appellant's minority which ceased on 30‑3‑1974. The suit was filed on 31‑7‑1977. The appellant under section 8 of the Limitation Act could treat the date of cessation of his minority (i.e. 30‑3‑1974) as the starting point and file his suit within three years therefrom or he, under section 6 of the Limitation Act, also had, upon cessation of minority, the option to benefit from the ordinary law and institute his suit in the same period as allowed in the 1st Schedule of the Limitation Act.

26. The reading of the provisions of sections 6 and 8 of the Limitation Act shows that provisions of section 8 provide an exception to a person suffering under disability like a minor from the limitation provided under section 6 read with 1st Schedule of the Limitation Act. Such person on attainment of majority or cessation of disability can file suit within the period of limitation provided in the 1st Schedule of the Limitation Act if such period had not expired. If period of such limitation had elapsed, such person also had a maximum period of three years from attainment of majority/cessation of disability to file the suit. The learned counsel for the respondents sought interpretation of 10 law by this Court in a restrictive manner to grant only three years under section 8 of the Limitation Act to the minor appellant for filing a suit, as the learned Additional District Judge have. Such interpretation would obviously impose a disability and disadvantage upon a minor by curtailing even the ordinary period of limitation available to a person under the ordinary law i.e. the 1st Schedule of the Limitation Act. Such disadvantage and abridgement of right cannot be the purpose an‑object or the law of limitation which through the provisions of sections 6 and 8 safeguards the right and interest of a minor to avail of its legal remedies against acts done during his minority. The minor has a right to sue within the ordinary period of limitation computable from the original cause of action even without invoking the provisions of sections 6 and 8 ibid after cessation of his minority. Provisions of the said sections do not oblige him to mandatorily sue within three years of cessation or disability. This would amount to divest a minor of the larger period or limitation, if available to him for his particular case tinder the ordinary period of limitation prescribed in the 1st Schedule of Limitation Act. Benefiting from Rustamji on the law of limitation on cumulative effect or sections 6 and 8, it is educative to reproduce the following passage:‑‑ "It may be noticed that the effect of reading together sections 6 and 8 appears .to be usually expressed in such terms as `the extension of the prescribed period of limitation', mainly due to the use of the word `extend' in section 8 But section 6 does not extend any prescribed period of limitation. It merely states that when the prescribed period of limitation begins to run against a person under disability, such period may be reckoned from the cessation of the disability. In other words a person under disability may choose whether the prescribed 'period is to be reckoned against him from the accrual of the cause of action or from the cessation of his disability. In either case it is the prescribed period that is reckoned and not any extended period. When the prescribed period is reckoned from the accrual of the cause of action (when the person is under disability), section 8 has no application and the whole of the prescribed period is reckoned according to the Act. It is only when the prescribed period is reckoned from the cessation of the disability that section 8 applies and cuts down the prescribed period to three years whenever it is found to exceed three years from the cessation of the disability. But if the prescribed period does not exceed three years (from the cessation of the disability) no question of cutting it down arises and the whole of it (the prescribed period) is reckoned (from the cessation of the disability) ... .. ... ... ... ...."

27. In the present case, suit dated 31‑7‑1977 was not only for declaration but was also for recovery of possession for which period of limitation under Article 142 of the 1st Schedule of the Limitation Act was 12 years. The appellant's suit was thus within the period of limitation from 6‑12‑1972 i.e. the date of sale transaction and also from 30‑3‑1974 i.e. the date of attainment of majority by the appellant.

28. For the facts and reasons above discussed, the impugned judgment and decree dated 27‑9‑1988 passed by the learned Additional District Judge, Sheikhupura is set aside. The judgment and decree dated 28‑3‑1988 of the learned Civil Judge, Sheikhupura is upheld. The effect thereof will be that suit of the appellant/plaintiff shall stand decreed. The parties are left to bear their own costs. S.A.K./M‑2485/L Appeal Allowed.