1969 PLP 203 (SCMR)

FAZL-E‑AKBAR, C. J.-- This petition for special leave to appeal raises the question : whether in the facts and circumstances of the case a father as a natural guardian was competent to sell the property of his minor son. Muhammad Akram (respondent herein), a minor, filed a suit for recovery of possession of the suit land on the ground that his father was pot competent to sell his (Akram's) property to the defendant, Abdullah (petitioner herein). The vendee contested the suit. He contended that the suit land was purchased on behalf of the minor from Nur Mohd. and others and that as he expressed his intention to the minor's father to pre‑empt the sale, the latter recognised his right of pre‑emotion and sold the land to him to save his son from ruinous litigation. In short, his defence was that the sale was for the benefit of the minor. The trial Court being of the opinion that in the facts and circumstances of the case the father was not competent to sell the property of the minor, decreed the suit of the plaintiff. On appeal, the District Judge, in a very short judgment, reversed his decision and dismissed the suit. The District Judge recorded his findings in these terms:‑ "The only question debated before me was whether the sale was for the benefit of the minor. It is evident that besides having received full consideration, the minor was saved the trouble and expense of pre‑emotion litigation and his father's act, therefore, benefited him. The lower Court acted on P L D 1952 Pesh. 1, but that was the case of a de facto guardian while the respondent s father acted as natural guardian. 1, therefore, decide issue 14 favour of the defendant with the result that I accept the appeal, set aside the judgment and decree of the Court below and dismiss the suit with costs throughout which shall be recovered from the plaintiff's next friend." The plaintiff then filed a second appeal in the High Court. A learned Single Judge, who heard the appeal, reversed the decision of the first appellate Court and restored that of the trial Court. Hence this petition for special leave to appeal has been filed by the defendant purchaser. 7 he learned counsel has contended that in a second appeal the learned Single Judge should not have disturbed the findings of appellate Court that the sale was for benefit of the minor. From the passage quoted above it is clear that his findings were based on surmises and conjectures. The learned Single Judge, therefore, rightly observed :‑ "It was yet to be proved that in fact suit of pre‑emption was contemplated to be instituted and secondly, it was yet to be seen that if at all the suit was instituted, was there any probability of any success, and in case there was such probabi lity, the minor could have easily avoided the expense and litigation by confessing judgment." It is true that under the Muslim Law in certain circumstances a natural guardian can alienate a minor's property for his benefit, but in the instant case the purchaser has failed to prove that in the circumstances of this case the alienation was for the benefit of the minor. We, therefore, see no ground for interference with the judgment and decree of the High Court. This petition is accordingly, dismissed. Leave refused.