SALEEM AHMED vs CHAUDHRY MUHAMMAD SHARIF, ETC
This civil matter concerns a dispute over the partition of property inherited from the late Chaudhry Muhammad Ishaq. Following a compromise decree in 1991, which was later set aside under Section 12(2) of the Code of Civil Procedure 1908 due to the exclusion of a legal heir, a new preliminary decree was passed in 2002. Respondents subsequently sought a review of this decree, claiming their share allocation was incorrect due to additional acquisitions from other heirs. The trial court allowed the review, increasing the respondents' shares, a decision upheld by the High Court. The petitioner challenged this, arguing the original 1991 compromise remained binding and that the respondents' title acquisitions via a Power of Attorney were void. The Supreme Court dismissed the petition, holding that once the 1991 decree was set aside, the underlying compromise agreement became a nullity. Furthermore, the Court ruled that the petitioner lacked locus standi to challenge the property transfers made by the respondents' predecessors, as the original transferors never contested those transactions. The Court affirmed that setting aside a decree nullifies the agreement upon which it was structured.
- Does the setting aside of a compromise decree under Section 12(2) of the Code of Civil Procedure 1908 render the underlying compromise agreement null and void?
- Does a third party have locus standi to challenge property transfers made by predecessors-in-interest when the original transferors have not contested the transactions?
- Section 12(2), Code of Civil Procedure 1908
ORDER
' MIAN SAQIB NISAR, J.--The original owner of the suit property was one Chaudhry Muhammad Ishaq, who died and was succeeded by five sons, five daughters and a widow. A suit for declaration and partition was initiated by his legal heirs against each other, However, one son Bashir Ahmed was not made party to such suit which ended up into a compromise between the parties thereto and a decree dated 27.11.1991 was passed. Bashir Ahmed, the son who was left out, moved an application under Section 12(2), CPC for the setting aside of the decree dated 27.11.1991 and it was accordingly set aside,. Where after a preliminary decree was passed on 18.3.2002 with the consent of all the legal heirs of Chaudhry Muhammad Ishaq. The respondents Khalid Mehmood, Muhammad Azam and Muhammad Musa claiming that in the said preliminary decree actual shares of the shareholders (co-owners) have not been determined, moved an application to do the need fill and the shares were accordingly allocated i.e., 46/112 was given to Khalid Mehmood, etc. They still being dissatisfied moved another application seeking review of the above-noted on the ground that they in fact are the shareholders of 56/112 shares because they have acquired ownership from certain paternal aunts and grandmother and, therefore, their share has gone up.
The learned Court, seized of the matter, allowed the review application and accordingly the shares of Khalid Mehmood etc. Were increased. This order has been unsuccessfully challenged by the petitioner throughout.
2. The learned counsel for the petitioner has vehemently argued that according to the original decree dated 27.11.199L which was a compromise decree inter se the parties, the shares were duly allocated to each other except Bashir Ahmed and certain acknowledgment was also made viz- a- viz the transfer of some land from one side to another, thus, even if the decree was set aside, yet such compromise remains intact and on that basis the petitioner still is the shareholder to the extent of shares as has been contemplated by the said compromise. It is also submitted that Muhammad Yaqoob had procured a Power of Attorney dated 20.10.1969 from his sisters and mother on the basis of which he in fact had transferred the shares of the above-named in favour of his own son. Though the Power of Attorney has also been revoked, besides some of the principals had also demised before that, therefore, such Power of Attorney was rendered void.
3. Heard. We find that the decree dated 27.11.1991 when was set aside, the entire agreement on the basis of which it was structured had also fallen to ground and had rendered nullity and non- existent in the eyes of law. 'As far as the allegation for transfer of the share by some paternal aunts and grandmother in favour of Khalid Mehmood, etc. Through Yaqoob is concerned, suffice it to say that such lady has never come forward to challenge those transactions and this remains to be a pivotal hurdle in the way of the petitioner; even if they had challenged the same, as argued, but they could not succeed at any forum and, thus, the petitioner in any case has no locus standi to assail such transfer(s) made by Muhammad Yaqoob in favour of his sons on the basis of the noted Power of Attorney. Resultantly, we do not find any merit, in this petition which is accordingly dismissed.
High Court Judgment Upheld/.