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ALI GOHAR CHANDIO versus MST. HAWA

- Sections 29 and 30 - Claims to be executed by the plaintiff's predecessor in favor of the Farmer / Respondent for the Special Relief Act (in 1877), Articles 8, 42 and declaration, occupation and permanent injunction. Was contacted by - Real Estate Parents of Muslim minority through real estate and without the court's permission - Accreditation - Respondent / Plaintiff claimed that the defendant was a farmer / farmer Registered with fraud * The sale process was implemented in 1946, which is part of two minors, daughters of the predecessor through their mother. Alt The sale was displayed without permission - respondent / plaintiff who was claimed as the property predecessor left a widow and three daughters. The inheritance of two minor daughters also depended on the plaintiff's mother and she was found guilty of fraud by the defendant when she stopped sharing the crop some years ago - the applicant / defendant claimed that the plaintiff's predecessor After the death of all the legal heirs in 1946 the estate of the plaintiff's father was sold in which the share of the two minor daughters was rightfully sold by his mother and no guardian was required for that purpose. Idity Justification - Records show that the daughters were minor in the year 1946, and the Guardian court's jurisdiction for the appointment of guardians was not exempt, as such sales were made by the Protectors and Wards Act, 1890 and further 29 In the case of 30 is questionable. minor Provide immovable property by a Muslim minor's de facto guardian law under Islamic law,

PLD 2017 Sindh 606

Before Fahim Ahmed Siddiqui, J

ALI GOHAR CHANDIO—Applicant

versus

Mst. HAWA and 5 others—Respondents

Civil Revision No.56 of 2012, decided on 30th May, 2017.

(a) Guardians and Wards Act (VIII of 1890)—

— Ss.29 & 30—Specific Relief Act (I of 1877), Ss. 8, 42 & for declaration, possession and permanent injunction—Registered sale deed in favour of peasant/defendant claimed to be executed by predecessor of the plaintiff was assailed—Conveyance of immovable property by de facto guardian of Muslim minor and sale agreement of property of minor without permission of court—Validity— Respondent/plaintiff contended that the defendant being peasant/farmer had fraudulently managed registered *sale deed executed in 1946 wherein the share of two minor daughters of predecessor was also shown sold through their mother without permission of court— Respondent/plaintiff who claimed constructive possession as the predecessor had left a widow and three daughters; inheritance of two minor daughters also devolved upon mother of the plaintiff and that she came to know about fraud of the defendant when he stopped giving share of crops a few years back—Applicant/defendant contended that after the demise of predecessor of plaintiff all legal heirs sold out suit property in 1946 to the father of defendant in which the share of two minor daughters was validly sold by their mother and no guardian was required from the court for the purpose—Validity—Record showed that the daughters were minors in the year 1946 and jurisdiction of Guardian Court was not invoked for the appointment of guardian, as such the said sale itself was questionable in terms of Ss.29 & 30 of Guardians and Wards Act, 1890—Conveyance of immovable property by a de facto guardian of a Muslim minor was void and was not binding on the minor—Under the Islamic law, mother of a minor.was not his/her legal guardian, and she would have no power to act on behalf of the minor and could not make a valid conveyance of his/her property—In the present case, two of the sisters were admittedly minors while one of them was major and the mother also enjoyed a share in the property as a widow—Question was where a conveyance was effected by three or four persons of whom one or more were minors represented by his de facto guardian, whether such a conveyance was void in so far as it affected the minor or minors, or against the other executants as well who were sui juris and competent to make conveyance of their shares in the immoveable property—High Court observed that if the conveyance was void qua the minor represented by the de facto guardian, it was void as a whole—Void contract was entirely void, and if a part of it had no effect, the other part could not stand by itself and be operative—Applicant had contended that no objection was raised by the mother of the plaintiff during her life time, as such, objection from plaintiff was not to be considered—Such contention of the applicant was also not substantial and could not sustain—Agreement by a person of infirmity due to lunacy or juvenility was void ab initio and had no worth in the eye of law—Even an agreement, which was void ab initio could not be rectified by the minor after attaining the age of majority—For a void document, the question of limitation would not arise, and the same did not specifically require cancellation—Admitted fact of placement of entry in the names of the legal heirs of original owner long after the execution of the alleged sale deed, purported to be executed in 1946, was sufficient to declare the sale deed as highly dubious document—Judgment of appellate forum below was maintained by High Court—Civil revision was dismissed accordingly. [pp. 611, 612, 613, 614] A, B, C, D, E & H.

Imambandi v. Mutsadd AIR 1918 PC 11; Pratap Singh v. Sant Kaur AIR 1938 PC 181; Chairman, District Screening Committee, Lahore v. Sharif Ahmad Hashmi PLD 1976 SC 258 and Abdul Rasheed Khan through LRs and others v. Safdar Ali through LRs and others 2016 YLR 2575 ref.

(b) Qanun-e-Shahadat (10 of 1984)—

—Art. 100—Old registered document—Denial by the opposing party— Onus of proof—Record showed that original sale deed was not available and the same was not produced before the Trial Court— Certified copy of said document was produced before the Trial Court but without fulfilling the requirements of the admissibility of secondary evidence—No doubt under Art. 100 of the Qanun-e-Shahadat, 1984 a sanctity was attached to a 30 years or more old registered document but whenever the clouds thrown on it by or on the behalf of the executant, the beneficiary of such document was obliged to establish the same as per rules of evidence—After denial by the plaintiff regarding execution of such document, onus to prove the same heavily shifted on the shoulders of applicant/defendant who was beneficiary of the transaction—Entry in the revenue record if disputed by the original owner, the person seeking benefit under the same would not be absolved of his duty to prove the transaction, [pp. 613, 614] F & G

Janat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Hakim Khan v. Nazeer Ahmad Lughmani and 10 others 1992 SCMR 1832; Sana Ullah and another v. Muhammad Manzoor and another PLD 1996 SC 256; Muhammad v. Mst. Rehmon through Mst. Sharifan Bibi 1998 SCMR 1354 and Mst. Rasheeda Begum and 3 others v. Muhammad Yousaf and others 2002 SCMR 1089 and Misri and others V. Muhammad Sharif and others 1997 SCMR 338 ref.

Zardad Khan v. Mst. Safia Begum 1998 CLC *2006 and Muhammad Hay at and 38 others v. Abdul Rahim and 24 others 2001 MLD 1524 distinguished.

Muhammad Ashique Dhamraho for Applicant.

Mrs. Najaf Shah for Respondent No.l.

Miss. Shazia Surahyo,State Counsel.

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