GHULAM NABI vs FAISAL NAVEED and 2 others

' MIAN MUHAMMAD AJMAL, J.---The petitioner seeks leave to appeal against the judgment of the Lahore High Court, Lahore dated 9-12-1999 whereby Civil Revision No,2023 of 1997 filed by him was dismissed.

2. Brief facts are that on 7-9-1991 Faisal Naveed/respondent No,1 (minor) through his mother Mst.

Naseem Akhtar instituted a suit against the petitioner and respondents Nos.2 and 3 before the Civil Court, Toba Tek Singh seeking declaration to the effect that he was co-sharer in Khewat No,25, Khatooni Nos.90 to 94 measuring 96 Kanals, 9 Marlas of land in joint Khata out of total land measuring 209 Kanals, 13 Marlas situated at Chak No,334/GB and that Sale Mutation No,486, dated 11-7-1991 and sale Mutation No,492, dated 26-8-1991 in favour of the petitioner and respondent No,2 got sanctioned by respondent No,3 in collusion with the revenue staff were illegal, against facts, based on fraud, without consideration insofar as minor's interest was concerned, inoperative qua his rights and were liable to be cancelled and sought permanent injunction restraining the defendants from interfering with the disputed land. It was alleged in the plaint that Muhammad Ramzan defendant/respondent No,3, father of the minor plaintiff was appointed his guardian on 21-3-1989. He was luxurious and irresponsible person and never cared for the welfare of the minor.

He illegally, collusively, fraudulently and without consideration sold 14 Marlas of land through Mutation No,486, dated 11-7-1991 and 17 Marlas of land vide Mutation No,492, dated 26-8-1991. The suit was contested by the petitioner and respondent No,2 contending that the mother of the minor plaintiff was not competent and had no authority to file a suit as next friend of the minor plaintiff, as such, suit was not maintainable. It was further asserted that the suit was collusive against the replying defendants and that the property was sold to them by the father of the minor who was not only natural guardian but was a legally appointed guardian, for consideration of Rs,40,000 and Rs,34,000, respectively and that the suit was instituted with mala fide intention to harass and pressurize them and prayed for dismissal of the suit with special costs under section 35-A, C.P.C.

Respondent No,3 was proceeded against ex parte. On divergent pleadings of the parties, the trial Court framed issues, recorded evidence of the parties and after hearing their learned counsel dismissed the suit with costs vide its judgment dated 16-2-1994.

3. Feeling aggrieved, respondent No, 1 filed Civil Appeal No,221-13 of 1997 whereas the petitioner filed Cross-Objection No,260-13 of 1997 before the learned District Judge, Toba Tek Singh, who accepted the appeal, dismissed the cross-objections, set aside the judgment of the trial Court and decreed the suit of respondent No,1 vide his common judgment dated 20-10-1997.

4. The petitioner challenged the validity of the said judgment before the Lahore High Court, Lahore through Civil Revision No,2023 of 1997 which has been dismissed by a learned Judge in Chambers of the High Court vide his judgment dated 9-12-1999, impugned herein.

5. We have heard learned counsel for the parties and have perused the record with their assistance. With regard to the competency and maintainability of the suit, suffice would be to say that it was competently filed by the minor plaintiff through his mother under Order XXXII, rule 1 of the Code of Civil Procedure. No doubt Muhammad Ramzan, father of minor plaintiff was appointed guardian of the minor of 21-3-1989 but he could not sell the property or any portion thereof without prior permission of the Court as provided in section 29 of the Guardians and Wards Act. Section 29 of the Act ibid reads as follows:-- "29 . Limitation of powers of guardian of property appointed or declared by the Court.---Where a person other than a Collector, or other than a guardian appointed by will or other instrument, has been appointed or declared by the Court to be guardian of the property of a ward, he shall not, without the previous permission of the Court--

(a) mortgage, or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of his ward; or

(b) lease any part of that property for a term exceeding five years or for any term extending more than one year beyond the date on which the ward will cease to be a minor."

It is thus clear from the above-quoted law that it requires the legal guardian to compulsorily obtain permission of the Court before alienating the minor's property. Admittedly, no permission was obtained from the Court by the legal guardian before the sale of land of the minor to the petitioner; hence the transfer made by respondent No,3 were in contravention of the aforesaid section and thus were voidable as provided by section 30 of the Act. Learned counsel for the petitioner failed to point out any error or legal infirmity in the findings of fact arrived at by the learned District Judge and affirmed by the High Court warranting interference by this Court under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973.

' For the foregoing reasons, this petition being devoid of any merits is dismissed and leave refused.