P (PLP)

KHUDA BAKHSH, J‑

This is a petition for revision of the order of the learned Additional Judge, Peshawar, dated 28th March. 1947, who on appeal affirmed the order of the Sub‑Judge Mardan, dated 29th October 1946, whereby the suit of the plaintiff‑petitioner for possession by pre‑emption of land, measuring 18 kanals 5 marlas situated id the village Shabar Khel was dismissed with costs. The plaintiff‑petitioner (Ziarat Gul) alleged that the suit land had been sold by Saifur Rahman to the defendant‑respondent (Mian Khan) by a registered deed, dated 20th October 1944 (Exhibit P. 3) for Rs. 200, and as he‑ was a collateral of the vendor and also co‑sharer in the Khata, he had a superior right of pre emption as against the vendee. The defendant‑respondent contended that the land in dispute ,4 had been sold to him by Mst. Khaparai, mother of the two minors ‑Saifur Rahman and Said Rabman, as their guardian by a sale deed executed on 2nd August 1937 and registered on 27th August 1937 (Exhibit D. 1), and that the deed dated 20th October 1944 on which the claim had been based, was not a sale‑deed, but merely a ratification of the original sale only up to the extent of 9 kanals 21 marlas (share of Saifur Rahman). T e superior pre emptive right of the plaintiff‑petitioner was also no admitted. The parties went to trial on the following issues :‑

1. Is the transaction in suit a sale, and, therefore, it card be pre‑empted ?

2. Has the plaintiff got a superior right of pre‑emption ?

3. Is the suit‑land sold per sale‑deed dated 27th August, 1937, to defendant No. 1, and, therefore, the present suit is time barred from that date ?

4. Does the document in question relate to only 9 kanals and the claim for 18 kanals 5 marlas is wrong, and is Said Rahman a necessary party ?

5. What is the market value of the suit‑laud ?

6. Are the parties agriculturists of the same group, and does the sale not contravene the provisions of section 21 of the Punjab Alienation of Land Act ? The learned dial Court held that the deed dated 20th October 1944 (Exhibit P. 3) on which the claim was based, did not represent the sale of the land ,in dispute, that the sale had originally been effected by Mst. Khaparai by the deed dated 2nd August 1937 (Exhibit D. 1), which had been ratified by Saifur Rahman only up to the extent of his own share, ‑and that Said Rahman was not a necessary party in the present suit. Following this Court's ruling reported as 1937 Pesh L. J page 74, the learned trial Court held the sale effected by Mst. Khaparai, the mother of Saifur Rahman, during his minority as only voidable and not void. The plaintiff petitioner was found to be a collateral of the vendor Saifur Rabman, and as such entitled to pre‑emption but as the sale had taker) place as far back as 1937, the suit, which was instituted on 19th October, 1945, was dismissed as time barred. Against the order of dismissal of the suit, the plaintiff preferred an appeal to the District Court. Peshawar and an Additional Judge of that concurred in the view of the law taken by the learned trial Court, and dismissed the appeal with costs. As the revision petition involved an important question of law, namely, whether the alienation of immovable property of a Muhammadan minor effected by a de facto guardian. was void or voidable, it was referred to the Bench for decision. The learned counsel for the plaintiff petitioner has raised two points in the course of the discussion, which may be stated as follows :‑ (1) That the sale of a Muhammad minor's property by his de facto guardian is void ab in, and not capable of being ratified by the minor on his attaining majority ? (2) That the deed dated 20th October 1944 (Exhibit P. 3) is nothing but a sale‑deed, and can validly form the basis of a suit for pre‑emption. Point No. 1.‑A large number of authorities was referred to in the course of arguments by the learned counsel for the parties, and it appears to us necessary to examine the authorities carefully and to decide the points involved in .this petition in conclusive manner. The first and foremost ruling on the subject is a case‑‑Mata Din v. Ahmad Ali decided by the Privy Council, and reported in I L R 34 All.

213. This was an appeal from a judgment of the Court of the Judicial Commissioner, Oudh, wherein it had been held that a de facto guardian of a Muhammadan minor could not sell the minor's property, and that such a transaction did not admit of being ratified by the minor on coming of age. Their Lordships upheld the view of the Court of the Judicial Commis sioner and observed :‑ "The family were Muhammadans and were governed by the Muhammadan Law relating to guardianship. According to that law, in the absence of duly appointed testamentary guardians the care of (minor) Ahmad Ali's property would devolve first on the father, and his executor, next on the paternal grandfather ''and his executor, and failing these, the right of nomination of a guardian would rest in the ruling power and its administration. The brothers had, therefore, no right whatever to act except under the authority of an appointment by the Court" The point was further examined by the Privy Council in the, light of original Arabic authorities in a later case known as Imam Bandi v. Mutassadi, and reported as I L R 45 Cal.

878. The mother had sold the immovable property of her minor children and the validity of such sale was a point in issue before their Lordships. It was observed by their Lordships that the decisions of Courts in India were not uniform on the subject, but betrayed two varying tendencies ; one set of decisions purported to give such dealings a qualified force ;the other set declared them wholly void and ineffective, and in this conflict' of opinion their Lordships thought it desirable that a definite rule .should, if in possible, be laid down. The Rt: Hon'ble Sayed Ameer. Ali, who delivered the judgment of the Judicial Committee, made the following observations, which ate pertinent to the present controversy "It is perfectly clear that under the. Muhammadan Law the mother is entitled only to the custody 'of the person of her minor child up to a certain age according to the sex of the. child. But she is not the natural guardian the father alone or if he be dead, his executor. (under the Sunni Law), is the legal guardian. The mother has no larger powers to deal. with her minor child's property than any outsider or non‑relative who happens to have charge for the time being .of the infarct. The term "de facto guardian that had been applied to these persons is misleading, it connotes the idea that people, in charge of a chip are by virtue of that fact invested with certain powers over the infant 's property. This idea is quite erroneous and the judgment of the Board in Mata Data v. Ahmad Ali (34 All. page 21,3) , clearly indicated it" (p. 892). The above summary of their, Lordships view leads. One to hold, that' an alienation of the minor's property by a de facto guardian is a' mere nullity. This is the interpretation which has been put by different High Courts in the country on the above quoted rulings. Relying upon the latter authority,' the Lahore High Court bas held in A I R. 1926. Lah. page 170,' that a Muhammadan mother has no power to Alienate: the property of her minor eon, and that such an alienation is void ab initio, The question of the power of a de facto guardian to deal with a minor's property, came up before the Privy Council once again, but in. another, form. a minors mother, had, entered into an agreement of references to, arbitration on behalf of the minor; and' an, award was given and actually stated upon. The, mother wag then appointed a guardian of her 'son by the Court under the Guardians and Wards Act: Some 14 year's after the award, the matter went up before the Privy Council on appeal from, the decision of the Oudh Chief Court, holding, the award binding on the minor, who had by then attained majority. Their Lordships held that the agreement‑of reference and the Award were null void and inoperative. Relying .on I L R 45 Cal. ‑page 878‑ (P C), and quoting extensively from it; their Lordships reversed the judgment of the Oudh Chief Court, end remarked, as follows :‑ "Even when there is no legal guardian, the mother as a de facto Guardian, has no ‑authority to enter into‑an agreement Of reference on ;behalf of minors so ns to make the award binding upon .them as to their share in the immovable property of their father ; nor has she any power or authority, to enter into an arrangement, whereby tire minor's share .n the immovable property of their father would be effected‑ and. she cannot be clothed with the necessary authority by calling the transaction a family arrangement, and the mere fact that the Court sub‑sequently found her a fit person to act for the minors would not validate the arrangement,' (ages 79:and 80) [tide A I R" 1932 P C 76]. Since then almost all the High Courts have been declaring alienations of minor's property by a de facto guardian to be void ab initio and not capable of being ratified by the minor on attaining majority. There have been frequent attempts to re‑open this question in spite of clear and authoritative dictum of the Privy Council, but the High Courts have‑ almost invariably and unanimously adhered to the view stated above: The learned counsel for the plaintiff‑petitioner referred to A I R 1935 Mad. page, 1041 A I R.1935 Lah., page.547 A I R 1936 All:; page 837 (F.B) ; A I R 1937 Cal page 284 ; A 1 R 1937 Sind, page 159 ; A I R 1938. Nag. page 27 ; A I R . 1941 Patna page 351 and AIR 1946 Bombay. page

57. We have Carefully gone through these authorities, and find that the contention of the learned counsel for the plaintiff‑petitioner, that An alienation of minor's property by a de facto guardian is void ab initio, and. cannot be ratified finds, simple support from all of them. The Nagpur. High Court 'has gone to the extent of holding that even if a de facto guardian of a 'minor is convinced that the proposed alienation of his property is necessary for the wants of the minor, he has to get the permission of the Court for the alienation. The Bombay view is among the latest on the subject, and in the ruling of that Court, just referred to above, all the relevant case‑law has been reviewed including the decisions of the Privy Council. Their Lordships of the Bombay High Court had before them a case which arose out of a civil execution, in the course of which the mother of a minor girl, who bad been appointed her guardian ad litem, obtained the leave of the Court under Order XXXI I r. 7 Civil Procedure Code to compromise the ''case tend in pursuance .6f the compromise 'some immovable pro perty of the minor was sold. Their Lordships held :-- "The leave to compromise given to the mother by the ex ecuting Court and her appointment by that Court as the guardian ad litem of her minor daughter did not make .her the guardian of the minor's property: The leave under Order XXXII r. 7, Civil Procedure Code merely approved of the proposed com promise as beneficial the minor and authorized the guardian ad litem to give effect to it. If that compromise included the transfer of the minor's immovable property, then that transfer must be effected according to law. The mother had to be appointed .a guardian of the minor's property under the. Guardians and yards Act before she could have any authority to deal with the minor's immovable property. The leave granted by the executing Court under Order XXXII r. 7 Civil Procedure Code may be sufficient to enable‑the District Court to sanction the sale under section 29, Guardians and Wards Act, after she got herself appointed as a guardian of the minor's property. Until such appointment; she, as the guardian ad litem in the execution proceedings, is in no‑ better position than a de facto guardian for the purpose of selling the minor's immovable property ........The sale canny of be binding on the minor The‑sale is not merely voidable but is void to the extent of the minor child, 's share. Hence even a Stranger who is himself a trespasser can resist an action in ejectment by a Purchaser from the guardian ad litem" The learned counsel for the defendant respondents has urged, an that an alienation of a minor's property by a de facto guardian is not absolutely void, but remains in a condition of suspension or dependence till the minor attains majority and exercised, his option to accept or repudiate the transaction. The learned counsel has quoted some passage from two renowned works on Hanfi Jurisprudence, namely the Hedaya and Fatawai Alamgiri. We have studied these references, but we find that they do not relate to the alienation of the property of the minors at all. With reference to such sales, the Privy Council has in I L R 45 Cal. page 878 expressly stated that "The Hanafi doctrine relating to a sale by an unauthorized person remaining dependent on the sanction of the owner refers to a case where such owner is sui juris possessed of‑ the capacity to give the necessary sanction, and to make the transaction operative. They do not find any reference in these doctrines relating to Fazuli sales (a sale by a stranger intermeddling with the property of another), so far as they appear in the Hedaya or the Fatawa‑I-Alamgiri to dealings with the property of minors by persons, who happen to have charge of the infants and their property, in other words, the de facto guardians. The Hanafi doctrine about Fazuli sales appears clearly to be based on the analogy of an agent, who acts in a particular matter without authority but whose' act is subsequently adopted" or ratified by the principal which has the effect of validating it from inception, The idea of agency in relation to an infant is its foreign, their Lordships, conceive, to Muhammadan Law as to every other system" The learned counsel for the defendant‑respondent then relied upon A I R 1932 Bom: page 23 in support of his contention, Now this ruling does not in so many words support the proposition propounded by the learned counsel. It is a Single judge ruling and has not been approved by a later decision of a Division Bench of the same High Court, viz, A I R 1946 Born. page 57, to which a reference has already been made. Finally the learned counsel for the defendant‑respondent has stressed the importance of the view expressed in 1937 Peshawar Law journal page 74, on which the two learned Courts below have also relied. With due deference to the learned judges, who decided that case, it may be said that they did not consider the case‑law and particularly the clear view of the Privy Council as a whole. A single sentence out of I L R 45 Cal. page 878, was quoted by them, and considered not with reference to the entire context but as detached from it. The learned Judges have not said in so many words, that‑a transfer of minor's property by a de facto guardian was only voidable but have tried to draw a sort of distinction between such a transaction being void against the minor and a transaction which could be considered to be void against the whole world. They seem to have considered the transaction with which they had to deal as not void against the whole world. But in expressing this view, they appear to have overlooked the following remarks of the Privy Council, appearing at page 903 of I L R 45 Cal. page 878:‑-- "A de facto guardian has no power to convey to another any right or, interest in immovable property which the transferee can enforce against the infant nor can such transferee, if let into into possession of the property under such unauthorised trans fer, resist an action in ejectment on behalf of the infant as a tres passer. It follows that, being himself without title, he cannot seek to recover property in the possession of another equally without title". These words clearly show that such a transaction is void not only against the minor, but against a third party, who may himself be in possession as a trespasser. In other words, according to their Lordships view a transferee of minor's property on behalf of a de facto guardian cannot enforce his right against anyone in the world. To us 1937 Peshawar Law Journal page 74 has been wrongly decided, and we consequently hold that the sale effected by Mst. Khaparai by the deed dated 2nd August 1947 (Ex. D. 1) was void ab initio, and could not have been validly ratified by Saifur Rahman by the deed dated 20th October 1944 (Ex. P. 3). The learned counsel for the plaintiff‑petitioner then argued that the so‑called deed of ratification represented in, reality a new sale by Saifur Rahman himself, which was liable to pre‑emption. The plaintiff petitioner being admittedly a collateral of Saifur Rahman and having instituted the suit within a year of the new sale was entitled to the decree prayed for by him. The learned counsel went on to say that this new sale had afforded the plaintiff petitioner a cause of action, and it was this cause of action that formed the basis of the relief claimed: On the other hand, the learned counsel for the defendant respondent contended that on the very face of it, the deed dated 20th October 1944 (Ex. P: 3) represented nothing but a mere relinquishment of a right to challenge the sale effected by Mst. Khaparai in 1937, and could by no stretch of imagination be taken as a fresh sale. We see a great force in the argument of the learned counsel for the defendant‑respondent. Saifur Rahman had done nothing by executing this document beyond agreeing to refrain from raising any objection to the sale effected by his mother in 1937. He has, in other words, abandoned what may be called a right to sue and this abandonment cannot in any sense be called a sale of property. It is said in clear words in the deed that it is' dastbardari nama, i. e. a deed of relinquishment. Sale has been defined as a transfer of property for price. The contents of the deed in question fall short of satisfying this test. The learned Courts below have also concurrently held it to be not a sale‑deed. We agree with the interpretation of the learned Courts below and hold that as there was no fresh sale by Saifur Rahman, the plaintiff‑petitioner had no cause of action to claim pre‑emption, and his suit has been rightly dismissed. For the foregoing reasons we dismiss this petition, but in view of the technical nature of the question involved in the case we leave the parties to bear their own costs in this Court. A.H. Revision dismissed