2011 SCMR 837 (PLP)

JAVED IQBAL, J.

The judgment impugned has been assailed by the appellant whereby H.F.A. preferred on behalf of Mst. Yasmeen Khan (respondent) has been accepted by setting aside the judgment/ decree dated 7-4-1991 and suit of the respondent decreed.

2. The facts of the case have been mentioned elaborately in the judgments impugned hence reproduction whereof would be of no use. It would, however, be suffice to mention that Mst. Yasmeen Khan (respondent) being owner of the land in question had challenged the exchange of land and subsequent sale by one Kanwar Muhammad Saghir being her attorney as the transactions were made during the period when she was minor. It is the case* of Mst. Yasmeen Khan (respondent) that she had obtained the land in question through Tamleek from her paternal grandmother namely Mst. Banni Begum which remained in the possession of her elder brothers namely Rashid Ullah Khan and Arshad Ullah Khan. It is also the case of Mst. Yasmeen Khan (respondent) that Ghazanfar Ullah Khan, her father had contracted second marriage with maid servant Mst. Hameeda after the death of her mother and thereafter appointed Kanwar Muhammad Saghir as attorney on her behalf. The land in question was either exchanged or sold which compelled her to file a suit for declaration and possession with the following prayer:-

3. The suits were ultimately dismissed by the learned Senior Civil Judge, Rahim Yar Khan by means of judgments/decrees dated 7-4-1991 which were assailed by means of R.F.As. by Mst. Yasmeen Khan (respondent) which were accepted hence these appeals.

4. Ch. Mushtaq Ahmad Khan, learned Senior Advocate Supreme Court entered appearance on behalf of appellants and contended with vehemence that legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention it is argued that the power of attorney which has been questioned at a belated stage was executed in favour of Kanwar Muhammad Saghir by all the family members including Mst. Yasmeen Khan (respondent) who was major at the time of execution but no protest worth the name could be made. It is next contended that the documentary evidence produced on behalf of Mst. Yasmeen Khan (respondent) being inadmissible should have been discarded for the reason that birth certificate, copy of National Identity Card, admission form and the matriculation certificate could not have been produced in accordance with the relevant provisions of Qanun -e-Shahadat Order, 1984 which escaped the notice of learned Division Bench of Lahore High Court, Lahore causing serious miscarriage of justice. It is urged with vehemence that no birth certificate could be produced in support of age and non-production whereof would lead to draw the only inescapable inference that she was not minor at the time of execution of the power of attorney. It is also argued that Mst. Yasmeen Khan (respondent) had failed to appear as her own witness and therefore, the best evidence which could have been produced in the shape of her own statement was withheld for the reasons best known to her and in fact her non-appearance amounts to concealment of exact factual position qua her date of birth. It is contended that the suits being barred by time could not have been accepted by the learned Division Bench of Lahore High Court and on this score alone the judgments impugned are liable to the set aside. It is further argued that the appellants being bone tide purchasers cannot be dispossessed from the land, ownership whereof was devolved upon them as a result of various transactions made through Kanwar Muhammad Saghir who was lawful attorney of Mst. Yasmeen Khan (respondent). In the same wake of events it is argued that for about six years the land in question remained in cultivating possession of the appellants being owners and Mst. Yasmeen Khan (respondent) who visited the land in question variously had not objected to the ownership and possessory rights of the appellants for the simple reason that she had received the sale consideration from her attorney.

5. Roy M. Nawaz Kharl, learned Advocate Supreme Court and Mr. M. Aslam Malik, learned Advocate Supreme Court appeared on behalf of other appellants and endorsed the view point as canvassed at bar by Ch. Mushtaq Ahmad Khan, learned Senior Advocate Supreme Court with the submission that the judgments/decrees passed by learned trial Court being well based may be kept intact.

6. Mr. Zaheer Ahmad Qadri, learned Advocate Supreme Court entered appearance on behalf of Mst. Yasmeen Khan (respondent) and while controverting the arguments of Ch. Mushtaq Ahmad Khan, learned Senior Advocate Supreme Court for the appellants supported the judgments impugned with the submission that the judgments of learned trial court being laconic have rightly been set aside by the learned Division Bench of Lahore High Court. It is next contended that the factum of majority has been proved by adducing cogent and concrete evidence such as matriculation certificate (Exh.P-12), copy of NIC (Exh.P-13), passport (Exh.P-14) and copy of admission form (Exh.P-1): Mr. Zaheer Ahmad Qadri, learned Advocate Supreme Court has urged with vehemence that the above-mentioned documentary evidence was never rebutted by producing any forthright or convincing evidence and the learned Division Bench has appreciated the documentary evidence in accordance with settled norms of justice and no irregularity whatsoever could be pointed out by the learned Advocate Supreme Court on behalf of appellants justifying interference in the judgments impugned. It is also contended that non-appearance of Mst. Yasmeen Khan (respondent) would have no substantial bearing on merits of the case as she was duly represented by her attorney and whatever was stated by him has rightly been taken into consideration by the courts below and no objection whatsoever could be made in this regard being untenable in law. It is also mentioned that the plea of bona fide purchasers was neither urged nor pressed into service by the appellants before learned High Court and therefore, it may be discarded.

7. We have carefully examined the respective contentions as agitated on behalf of the parties, scanned the entire evidence which has come on record with the eminent assistance of learned counsel and perused the judgments of learned trial and appellate courts carefully. After having an in-depth scrutiny of the entire evidence, the pivotal question which needs determination would be whether the factum of minority has been proved on the basis of cogent and concrete evidence? In order to answer the said question we have examined the evidence led by Mst. Yasmeen Khan (respondent) to substantiate the factum of minority. The claim of the appellant is that she was born on 6-5-1954. Khurram Butt (P.W.3/husband of Mst. Yasmeen Khan) has stated in a categoric manner that she was born on 6-5-1954. Nothing advantageous could be extracted as a result of an exhaustive cross-examination and no other date of birth whatsoever could be suggested in spite of the fact that Khurram Butt (P.W.3) was cross-examined on behalf of Sardar Ghazanfar Ullah Khan who is the real father of Mst. Yasmeen Khan (respondent). Khurram Butt (P.W.3) while answering one of the questions during cross-examination made it abundant clear that the date of birth of Mst. Yasmeen Khan (respondent) was recorded as 22 years in Nikahnama and besides that the National Identity card is indicative of the fact that the exact date of birth is 6-5-1954. In fact the entire cross-examination revolves around "Ibtalnama" in oblivion of the fact that it was never executed by Mst. Yasmeen Khan (respondent) and on the contrary it was so done by one Ibrar Hussain and hence merely on the basis of execution of "Ibtalnama" which was never executed by Mst. Yasmeen Khan (respondent), the question of minority or majority cannot be determined. In our view the date of birth mentioned in National Identity card of Mst. Yasmeen Khan (respondent) cannot be ignored lightly for the reason that no evidence whatsoever has been led in rebuttal. The statement of Nahmat Ali, serving in the Registration Office Rahim Yar Khan, would indicate that Form-A was filed on 9-3-1974 and the date of birth of Mst. Yasmeen Khan (respondent) was mentioned as 6-5-1954. It may not be out of place to mention here that Sardar Ghazanfar Ullah Khan (father of Mst. Yasmeen Khan) had also filed his Form according to which his date of birth was 17-6-1912. The Forms of all the family were filed on the same day and all the necessary formalities were completed. Nahmat Ali was subjected to an exhaustive and lengthy cross-examination but nothing advantageous could be elicited. It is worth mentioning that while answering one of the questions during cross-examination he made it clear that National Identity Card number of Mst. Yasmeen Khan (respondent) is 258-54-041239. It was further made clear that the figure '54' meant for the year 1954. He also made it abundant clear that date of birth of Mst. Yasmeen Khan (respondent) as per National Identity Card is 6-5-1954. The most significant point which made all the doubts clear would be that Form-B which was submitted by Sardar Ghazanfar Ullah Khan (father of Mst. Yasmeen Khan) the name of Mst. Yasmeen was found missing for the only reason that she was minor at that time because Form-B is meant for the persons whose age is more than 18 years. We have not been persuaded to agree with Ch. Mushtaq Ahmad Khan, learned Senior Advocate Supreme Court that no importance can be attached to the National Identity card as it was never proved in accordance with law for the reason that the record brought by Nahmat Ali, Clerk of the Registration Office Rahim Yar Khan was never challenged. It is worth mentioning that National Identity Card has got its probative value which carries sufficient weight to be considered for determining the age which fact also finds recognition by this Court. In this regard reference can be made to the case of Razia Khatoon v. Roshan H. Nanji, (1991 SCMR 840), relevant portion whereof is reproduced hereinbelow for ready reference:-- "The probative value of the National Identity Card has been recognized by this Court. The entries therein were made, no doubt, at the instance of the landlady herself but at a time when the law granting any such benefits was not in existence, was not in anticipation either, and when there was no such controversy which could have prompted her to give an incorrect age. Besides, she was under a statutory duty under the National Registration Act, 1973 (Act LVI of 1973) to, declare on affidavits her date of birth or age and the Registrar-General was empowered to satisfy himself about the truth of the information, under section 9 of the Act. The Act also makes penal by clause (b) of section 11 making of any statement or furnishing of any information which is known or is reasonably believed to be false in material particulars. In such background, the entries of the National Identity Card shall hold the field unless they are rebutted by an equally good or better evidence. In this case such evidence was altogether lacking."

8. As mentioned hereinabove the documentary evidence, details whereof have been mentioned above in the preceding paragraphs, was never rebutted. It is well-settled by now that mere oral assertion is not sufficient to rebut documentary evidence. In this regard we are fortified by the dictum laid down by this Court in the case of Akhtar Hussain Zaidi v. Muhammad Yaqinuddin (1988 SCMR 753).

9. The education record pertaining to Mst. Yasmeen Khan (respondent) during her study in Waqar-un-Nisa Girls College Rawalpindi has also been produced by Muhammad Shahzad (P.W.6/Record-keeper). The record of admission produced by Muhammad Shahzad (P.W.6) is indicative of the fact that in admission form (Exh.P-1) the date of birth of Mst. Yasmeen Khan (respondent) was recorded as 6-5-1954. The matriculation certificate (Exh.P-12) also mentioned 6-5-1954 as date of birth of Mst. Yasmeen Khan (respondent). The factum of age has further been supported by a passport (Exh.P-14) wherein the date of birth of Mst. Yasmeen Khan (respondent) has been recorded as 6-5-1954. At the cost of repetition we may mention here that the above mentioned documents were never contested seriously and no evidence worth the name could be led in rebuttal. It is to be noted that it was never the case of appellants that above mentioned documents were forged, fake or fabricated. Saif Ullah Khan Niazi (P.W.7) appeared as attorney for Mst. Yasmeen Khan (respondent) and mentioned in a categoric manner that at the time of execution of power of attorney in favour of Kanwar Muhammad Saghir, Mst. Yasmeen Khan (respondent) was about 16-1/2 years. He was also subjected to a lengthy cross-examination but nothing beneficial could be extracted rendering any help to the case of appellants.

10. We have also kept the defence version in juxtaposition and examined the statements of Muhammad Azeem Khan (D.W.1) and Kanwar Muhammad Saghir (D.W.2). The statement of Muhammad Azeem Khan (D.W.1) has not supported the claim of appellants that Mst. Yasmeen Khan (respondent) did not born on 6-5-1954 and besides that the power of attorney allegedly executed by him was never seen by him. It is to be noted that he is one of the beneficiaries and a chunk of land was also transferred in his favour by Kanwar Muhammad Saghir, the so called attorney for Mst. Yasmeen Khan (respondent). Kanwar Muhammad Saghir (D.W.2) has failed to produce the original power of attorney which, according to him, was lost during the floods: No other evidence could be led to substantiate the contention of Kanwar Muhammad Saghir (D.W.2) that the original power of attorney was lost. We have observed it with curiosity that Sardar Ghazanfar Ullah Khan, the father of Mst. Yasmeen Khan (respondent) did not enter appearance who was the best witness to substantiate the factum of age and thus the best available evidence was withheld for the reasons best known to him.

11. In the light of what has been discussed herein above, we have no hesitation to hold that Mst. Yasmeen Khan (respondent) was born on 6-5-1954. We are not impressed by the contention that all the transactions made by Kanwar Muhammad Saghir (D.W.2) so called attorney for Mst. Yasmeen Khan (respondent) cannot be declared as "void" and can be considered as "voidable" for the reason that "void" and "voidable" are not interchangeable or synonymous terms and a line of distinction is to be drawn which aspect of the matter has been dilated upon and decided in case titled Chairman, Distt. Screening Committee v. Sharif Ahmed Hashmi (PLD 1976 SC 258), relevant portion whereof is reproduced herein below for ready reference: "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." 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. 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."

12. In our considered view all the transactions made by Kanwar Muhammad Saghir (D.W.2) the so called attorney for Mst. Yasmeen Khan (respondent) are incapable of ratification or confirmation. It is well settled by now that "any contract or transaction entered into with minor was void ab initio for minor could not give consent to create any binding contract. Principle of estoppel was also inapplicable in minor's case. Transaction reflected in specified mutation sanctioned during minority of minor female was void ab initio for being unauthorized, therefore, on basis thereof vendees named in such mutation did not acquire any right or title in land in question. No independent evidence of transaction of sale was produced on basis whereof, mutations in questions, had been entered into and sanctioned". (Muhammadan Law by Mulla S.362, Rahimuddin v. Abdul Malik Bhuyia PLD 1968 Dacca 801, Bibi Mukhtiar v. Amrezan PLD 1968 Pesh. 169, Ghulam Ali v. Mst. Ghulam Sarwar Naqvi PLD 1990 SC 1, Atlas Industrial and Trading Corporation v. Jalil Asghar PLD 1970 Kar. 241, Sultan Textile Mills (Dar.) Ltd. v. Muhammad Yousuf Shamsi PLD 1972 Kar. 226, E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536, S. Sibtain Fazli v. Star Film Distributors PLD 1964 SC 337, Injunctions in Holy Qur'an and the Sayings of the Holy Prophet (P.B.U.H.) Holy Qur'an: S. IV. V. 34, Benazir Bhutto v. Federation of Pakistan PLD 1988 SC 416, Fida Muhammad v. Muhammad Khan PLD 1985 SC 341).

13. The provisions as enumerated in section 11 of the Contract Act, 1872 would make minor incompetent to enter into any contract, therefore, contract by minor was void ab initio and not merely voidable. Such contract would have no existence in the eye of law and was incapable of satisfaction or confirmation. Law forbids enforcement of such transaction even if minor were to ratify the same after attaining majority. Alleged transaction of sale being ab initio void, no transfer took place in favour of alleged vendee, therefore, plaintiff remained in possession of land in question throughout and consequently no title passed to pre-emptors from vendee. Judgments and decrees of courts below were set aside and plaintiff's suit was decreed in circumstances." (Govind Prasad v. Shanti Swarup AIR 1935 All. 778, Ghulam Hussain v. Ghous Bakhsh PLD 1963 (W.P.) BJ 30, Safdar Ali v. Muhammad Malik 1995 CLC 1751, Allah Ditta v. Muhammad Azeem PLD 1953 BJ 1, Chairma, Distt. Screening Committee v. Sharif Ahmed Hashmi PLD 1976 SC 258, Karim Bakhsh v. Gul Rehman 1990 CLC 1200, Ma Hnit v. Hashim Ebrahim Meter AIR 1919 PC 129, Govind Rain v. Piran Ditta AIR 1935 Lah. 561, Firm Bhola Ram v. Bhagat Ram AIR 1927 Lah. 24, Narendra Kumar Das v. Muhammad Babru PLD 1971 Dacca 281).

14. It may not be out of place to mention that "no rights and liabilities could be attached to or arise out of a void contract. Minor could not be burdened with liability of a void contract, thus Court had validly dismissed the plaintiff's suit. Had it been a suit brought by minor to get a contract avoided, then court could validly refuse relief to minor till realization of benefit received by minor from his contracting party.] Revision petition was dismissed in circumstances." (Chairman, Distt. Screening Committee v. Sharif Ahmed Hashmi (PLD 1976 SC 258, Lilla Dhar v. Piarey Lal AIR 1921 All. 326).

15. The plea of bona fide purchasers cannot be pressed into service at this stage which was never seriously raised either before the trial or learned High Court. Even otherwise the -appellants cannot take refuge behind the provisions as enumerated in section 41 of the Transfer of Property Act, 1882 as no precautionary measure has been taken to see as to whether any authentic and genuine power of attorney was ever executed on behalf of Mst. Yasmeen Khan (respondent) being minor.

16. The upshot of the above discussion is that the judgments impugned being unexceptionable and well-based hardly need any interference. The appeals being devoid of merits are dismissed. M.A.K./A-19/SC Appeals dismissed.