P L D 1969 Karachi 563 (PLP)

Alienation‑De facto guardian

Cannot transfer right or interest in property of minor‑Family arrangement by mother to partition land falling to share of her minor children, held, illegal‑[Ameer Hassan v. Muhammad Ejaz Hussain A I R 1929 Oudh 134 dissented from]. Imambandi v. Mutsaddi 45 I A 73 rel. Ameer Havsan v. Muhammad Ejaz Hussain A I R 1929 Oudh 134 dissented from. Brijraj Singh v. Sheedan Singh I L R 35 All. 377 distinguished. (b) Civil Procedure Code (V of 1908), S. 100‑Second appeal

New plea‑Plea neither raised in trial Court nor mentioned in written statement ‑ Not allowed to be raised in second appeal. This second appeal is filed against the judgment of the District Judge, Larkana dated 20th July 1967, by which the learned District Judge set aside the decree passed by the trial Court in the appellant's favour and dismissed the suit filed by the appellant.

2. The dispute in this appeal relates to agricultural land situated in several villages in Larkana District (hereafter called the said land). The facts material to this appeal are as follows:‑ "Gul Sher, Muhammad Bashir and Abdul Ghani were owners of the said land, but some time after the death of Gul Sher, in 1955 there was a partition of the said land between the legal heirs of Gul Sher and the said Abdul Ghani and Muhammad Bashir. The heirs of Gul Sher were his widow, who was a pardahnashin lady (respondent No. 4) in this appeal, a son Amanullah (respondent No. 5) and other children, who were admittedly minors. According to learned counsel for the appellant, after this partition of 1955, the heirs of Gul Sher took possession of the land, which fell to their share, and on the other hand, the appellant incurred expenses in developing the land which fell to his share in the partition of 1955. In 1964, three of the heirs of the late Gul Sher, namely the first three respondents in this appeal, filed a suit in the Court of the First Class Civil Judge, Larkana, being Suit No. 1 of 1964, in which they challenged the partition of 1955 on the ground that it was illegal because their mother, respon dent No. 4, was not empowered in law to effect any transfer of immovable property on their behalf. They also pleaded that the respondent No. 4 was a pardahnashin lady and that the appellant had taken advantage of her ignorance in order to effect a partition of the land advantageous to himself, therefore they sued for the partition of the said land and for the appointment of a Commissioner and other ancillary relief. This suit was contested by the appellant. I may observe that many issues were framed, one being of limitation. The suit was filed when two of the plaintiffs were admittedly minors, yet the learned Civil Judge held that the suit was time barred. He also decided all other issues in favour of the appellant and dismissed the suit."

3. Aggrieved by the judgment, the plaintiffs filed an appeal which was allowed on the short ground that, as the partition of 1955 had been effected by the fourth respondent on behalf of her minor children although she was only then de facto guardian, she had no authority so to do, therefore, the partition of 1955 was illegal. Accordingly, by his judgment dated the 20th July 1967, the learned District Judge set aside the order of the trial Court, dismissing the suit filed by the first three respon dents and directed that a preliminary decree for partition be prepared and the papers sent to the Deputy Commissioner, Larkana for partition of the property by metes and bounds, and the final decree was to be prepared after the report of the Deputy Commissioner. The appellant filed an appeal against this judgment which has now come up for admission before me. The appellant has also filed a stay application with an appeal, and notice was ordered to this application by my learned brother Noorul Arfin, J. on 6th December 1967 and Mr. Naimuddin had appeared on behalf of the first three respondents.

4. It is a common ground before me that Mst. Maqbool Sultana, the fourth respondent, was only a de facto guardian 4 of her children, therefore in view of the judgment of the Privy Council in Imambandi v. Mutsaddi (45 I A 73) she had no power to alie nate the property, and the partition of 1955 was a prima facie, illegal. In order to overcome this difficulty, learned counsel for the appellant submitted that the partition was in the nature of the family arrangement and that it had been acted upon for a period of 9 years, therefore he submitted that it would neither be just nor equitable to upset such a family arrangement, the more so as it had also been beneficial to the respondents. In support of his submission learned counsel has relied on a judgment of the Oudh Chief Court reported in Ameer Hasan v. Muhammad Ejaz Hussain (A I R 1929 Oudh 134). The facts of that case were that the deceased had died leaving him surviving his widow and children. A dispute about land was referred to arbitration by the widow, and the property was partitioned in pursuance of the award given by the arbitrator. On attaining majority the children of the deceased challenged the partition on the ground that their mother had no authority to alienate it by a reference to arbitration or otherwise. The suit was dismissed, and the Court held that the partition of the property had been acted upon for over 14 years and was in the nature of a family arrangement, therefore it should not be disturbed. In coming to this con clusion learned Judges of the Oudh Chief Court had followed a judgment of the Judicial Committee in Brijraj Singh v. Sheedan Singh (I L R 35 All. 377). The facts of that case were that a Hindu father had made a will, dividing his property amongst his sons, and had put them in possession of the property as divided by him in the will. The will appears to have been treated as a partition. After his death, the partition made by the father was challenged by one of the sons on the ground that the property was joint family property, therefore the father had no authority to partition it. This contention was rejected by the Privy Council on the ground that the plaintiffs had them selves acted upon it for a long period of years. No question of minority was raised in this case. Therefore in my humble opinion the learned Judges of the Oudh Chief Court erred in applying the principles contained in this case and in holding that an illegal alienation by the de facto guardian of a Muhammadan minor could be validated merely because the alienation had not been challenged by the minors during their minority. In my humble opinion the principle contained in the judgment of the Privy Council in Brijraj Singh v. Sheedan Singh is not relevant to the question of the validity of the alienation of the property of Muhammadan minors by a de facto guardian and does not in any way affect the Privy council's judgment in Imnmbandi v. Mutsaddi. Therefore learned counsel's argument is without merit.

5. Further the question whether the partition of 1955 was in the nature of family arrangement which was beneficial to the respondents 1, 2 and 3 as contended by learned counsel for the appellant was a question of fact which had to be pleaded in the trial Court. Mr. Naimuddin has read out to me the contents of para. 7 of the plaint. According to this para. the appellant, who had been managing the said land had taken advantage of the minority of the plaintiffs and of the ignorance of the mother who was a pardanashin lady, and effected a partition to his advantage. Learned counsel for the appellant has not been able to show any averment in the written statement alleging that the partition of 1955 was in the nature of a family arrangement or that it had been beneficial to the first three respondents. Therefore it is not open to the appellant to advance this argument in this second appeal because this plea was not raised in the trial Court. According to the learned counsel fore the appellant, issue No. 8 (b) is an issue in which this plea has been raised. I have examined issue No. 8 (b) and it does not contain any reference to any family arrangement. Therefore the plea cannot be considered at this stage of second appeal.

6. Learned counsel next argued that although all issues had been decided by the trial Court in the appellant's favour, the learned District Judge had not considered all the issues and had merely reversed the judgment of the trial Court on his finding on one issue. In this respect, learned counsel stressed the fact that the trial Court had held that the suit was time barred and he submitted that as this issue had not been specifically reversed by the learned District Judge, the case should be remanded to the first appellate Court. The finding of the trial Court that the suit was time barred is in utter disregard of the provision of section 6 of the Limitation Act. Therefore, I see no purpose in remanding the case to the District Court on this issue or any other issue.

7. Finally, learned counsel submitted that the appellant had incurred expenditure in the development of the land in his occupation after partition of 1955 and that he had an equity in respect of the expenses so incurred. The learned District Judge has very correctly directed that accounts be taken by the Deputy Commissioner. It is for the appellant to produce accounts and prove before the Deputy Commissioner the expenses incurred by him in the development of the land in his occupation, and subject to the profits enjoyed by him, his claim will no doubt be considered by the trial Court.

8. There is no merit in this appeal which is therefore dismissed in limine. A. E. Appeal dismissed in limine.