P L D 2015 Sindh 46
Before Nazar Akbar, J
FAISAL and others
---
Applicants
Versus
Mst. KHURSHEED AKHTAR
and 2 others
---
Respondents
Civil Revision Application No.291 of .2012 and Second Appeal No.38 of
2012, decided on 29th
August, 2014.
(a)
Islamic Law
---
----
Guardianship of minors property
---
Sale of property of minor by the mother without
permission of court
---
Effect
---
"De facto guardian"
--
Scope
---
Mother of minor was not the
natural guardian to deal with the property of her minor children
---
Mother could be de facto
guardian of person and property of a minor but she had no power to transfer the property of
minors
---
Alienation of immovable property of minor was possible only by the person entitled to
be appointed as legal guardian of propert
y after obtaining permission of the court
---
Duty of
appointing a guardian for the protection and preservation of minor's property would fall on the
Judge as representing the State
---
Person neither a legal guardian nor a guardian appointed by the
court but
had voluntarily placed himself incharge of the person and property of a minor, would
be called "de facto guardian"
---
"De facto guardian" was merely a custodian of the person and
property of the minor but he had no power to transfer any right or interest in
the immovable
property of minor
--
Mother, in the present case, had alienated the property of her minors children
and vendees were aware of the fact that they were purchasing the property of minors
---
Impugned
agreement of sale between the mother of minors
and vendees was void agreement which could
not be enforced
---
Minors were entitled to their respective share in the suit property as legal heirs
of the deceased
---
Impugned judgments and decrees passed by the Appellate Court were perverse
and contrary to law
and evidence available on record which were set aside and those of Trial
Court were restored
---
Second appeal was accepted in circumstances
.
Muhammadan Law, S.361 and Muhammad Hanif v. Abdul Samad and others PLD 2009
SC 751 rel
.
(b) Words and
phrases
---
----
"De facto guardian"
---
Meaning
---
Person who was neither a legal guardian nor a guardian
appointed by the court but had voluntarily placed himself incharge of the person and property of
a minor, would be called "de facto guardian"
.
Muhamm
ad Suleman Unar for Applicants/Appellants
Waqar Ahmed for Appellant No.7.
Muhammad Asif Shaikh for Respondents.
Date of hearing: 6th August, 2014.
ORDER
NAZAR AKBAR, J.
---
By this common Judgment, I intend to dispose of Civil Revision No.291
of
2012 and Second Appeal No.38 of 2012 filed by applicants Nos. 1 to 6 challenging two
separate Judgments and Decrees both dated 3
-
12
-
2012 passed by the 1st Additional District
Judge, Hyderabad in Civil Appeals Nos.222 of 2012 and 246 of 2012 setting aside J
udgment and
Decree of applicant's Suit No.70 of 2006 for Partition, declaration and reversing the dismissal of
respondent's suit N0.49 of 2006 for specific performance both passed by the court of Vth Senior
Civil Judge, Hyderabad on 17
-
4
-
2012.
2.
In fact the applicants in Civil Revision No.291 of 2012 should 'la preferred a second appeal
against the Ist appellate Judgment in Civil Appeal No.222 of 2012 since identical law point was
involved in the Second Appeal No.38 of 2012 filed by the same appe
llants against appellate
decree in Suit No.49/2006 for specific performance of contract dated 10
-
6
-
1997 filed by
respondents as the root of dispute was one and the same that whether the "applicants were
entitled to partition of their share in the suit prop
erty which they have inherited from their father
late Zameer ul Hassan but the same was sold by their mother as natural guardian to the
respondents namely Javed Ahmed Shaikh and Muhammad Akram Shaikh by agreement to sell
dated 10
-
6
-
1997 when they were mino
rs, therefore, this Revision Application No.291 of 2012 is
converted into second appeal and be treated as second appeal. The common question of law in
both these IInd Appeals is that "whether the mother of the appellants on 10
-
6
-
1997 was
competent to sell
joint property of their predecessor
-
in
-
interest to the respondents namely Javed
Ahmed Shaikh and Muhammad Akram Shaikh as natural guardian of appellants Nos.1 to 6, who
were minors at the relevant time
".
3. The facts leading to both these Second appeals
are that by two
separate Judgments delivered
on 17
-
4
-
2012, learned Vth Senior Civil
Judge Hyderabad dismissed Suit No.49 of 2006 filed by
the respondents
namely Javed Ahmed Shailch and Muhammad Akram Shaikh for specific
performance of contract dated 10
-
6
-
1
997 in respect of the House bearing
No.C/5 admeasuring 1333
Sq. Ft situated at Mir Fazal Town Unit No.9
Latifabad Hyderabad (hereinafter referred to as the
suit property) against
the mother of appellants Nos.1 to 6 in which these appellants were also
subse
quently impleaded, and decreed Suit No.70 of 2006 filed by
appellants Nos.1 to 6
for partition, declaration, mesne profits and
permanent injunction in respect of same suit
property against their
mother Mst. Khursheed Akhtar and respondents Javed Ahmed Shaikh
and Muhammad Akram Shaikh. Both the findings of Suit No.49 of 2006
and Suit No.70/2006
were in favour of appellants herein but on first
appeals filed by respondents Javed Ahmed
Shaikh and Muha
mmad
Akram Shaikh bearing Civil Appeals Nos.222 of 2012 and 246 of
2012 ware reversed by the court of 1st Additional District Judge, Hyderabad
by two separate
Judgments both dated 17
-
4
-
2012.
4. Briefly stated the common facts from the two plaints are tha
t appellants Nos.1 to 6 being legal
heirs of late Zameer ul Hassan, who died on 3
-
2
-
1997, filed suit for partition of their 88% share
in the suit property and declaration that the Sale agreement dated 10
-
6
-
1997 between the
respondents and their mother was
null and void against the interest of the appellants. Admittedly
at the time of death of Zameer ul Hassan on 3
-
2
-
1997, appellants Nos.1 to 6 were minors and
their mother having only 12% share entered into agreement of sale dated 10
-
6
-
1997 to sell joint
sui
t property and handed over possession of the suit property to the respondents namely Javed
Ahmed Shaikh and Muhammad Akraln Shaikh on receiving only Rs.400,000. Appellants Nos.1
to 6 came to know about the sale agreement in 2006 when the respondents filed
suit for specific
performance of sale agreement dated 10
-
6
-
1997 against their mother in the year 2006 in the court
of Vth Senior Civil Judge, Hyderabad. By the year 2006, the appellants Nos.1 to 5 had become
major and only the appellant No.6 Ahad Zameer wa
s minor, therefore, the appellants Nos.1 to 6
being joint owner to the extent of 88% share in the suit property after approaching the
respondents Nos.1 and 2 to deliver vacant possession of the suit property to them filed suit for
partition and declaration
that the sale agreement dated 10
-
6
-
1997 between their mother and the
respondents namely Javed Ahmed Shaikh and Muhammad Akram Shaikh was ab initio illegal,
void and not binding upon them. They also prayed for mesne profits according to the prevailing
rent
in the area where the suit property is situated for the last three years i.e. from 2003 onwards
.
5. The respondents namely Javed Ahmed Shaikh and Muhammad Akram Shaikh filed their
written statement in Suit No.70 of 2006 wherein they admitted that the ap
pellants were minors at
the time of execution of sale agreement dated 10
-
6
-
1997 and handing over possession of the suit
property to them by their mother. However, they claimed that she was competent to enter into
such sale agreement being natural guardian
of the minors to sell their share in the suit property.
The said respondents also claimed that they have already filed suit for specific performance of
contract dated 10
-
6
-
1997 in respect of the suit property.
6. After framing issues, recording evidence
and hearing parties, the Suit No.70 of 2006 filed by
the appellants for partition and declaration was decreed and Suit No.49 of 2006 filed by the
respondents namely Javed Ahmed Shaikh and Muhammad Akram Shaikh for specific
performance of the sale agreement
dated 10
-
6
-
1997 was dismissed by the trial court by two
separate Judgments both dated 17
-
4
-
2012. However, on appeal learned 1st Additional District
Judge, Hyderabad allowed both the appeals filed by the respondents namely Javed Ahmed
Shaikh and Muhammad A
kram Shaikh by two separate Judgments both dated 3
-
12
-
2012 holding
that mother of appellants Nos.1 to 6 was competent to sell out the suit property being natural
guardian of appellants Nos.1 to 6 who were minors and in both the Judgments learned appellate
court has relied upon the cases reported in 2002 MLD 202 and AIR 1936 Lahore 2020. The
appellants have preferred these second appeals challenging both the Judgments and Decrees of
the appellate Court.
7. I have heard the learned counsel for the parties a
nd perused the record.
8. The only point involved in both these appeals is that whether the appellate court while
reversing the findings of the trial court has properly appreciated the law on the point of the
authority/competency of mother of the minors
to enter into an agreement to sell their 88% share
in immoveable property without being appointed as guardian of the property of the minors by a
competent court and without obtaining permission to sell the property of the minors
.
9. Learned counsel for t
he respondents has raised only one contention in support of the impugned
Judgments of the appellate court that the mother is "natural guardian", therefore, she was
competent to enter into agreement of sale of the entire property. He has not been able to sh
ow
any case
-
law on this point that being the natural guardian she was not required to be appointed as
guardian of the property of her minor children
.
10. On the other hand, the counsel for the appellants has urged that the learned appellate court
has nei
ther advanced any reason nor referred to any law to come to the conclusion that the
mother being natural guardian was not required to seek permission of the court to sell the
immoveable property of minors. He has further contended the learned appellate Cou
rt by
referring to the section 7 of the Guardians and Wards Act, 1890 (hereinafter referred as G & W
Act) has drawn an erroneous conclusion that mother as natural guardian was competent to sell
property of her minor children. He has further pointed out tha
t the learned appellate court has
relied on AIR 1936 Lahore 2020, but the AIR 1936 Lahore 2020 has not ever been published.
The learned counsel for the respondents has also informed the court that he too has not been able
to lay his hand to the said citati
on which the learned appellate court has mentioned in the
impugned judgment
.
11. I regret and feel embarrassed in reading the impugned judgment of the appellate court. The
Presiding Officer of the appellate Court seems to be devoid of any possible legal
acumen of an
ordinary man. He has relied on a case
-
law in the impugned judgment but neither he has
mentioned the parties name nor the point of law settled in the said case
-
law to justify setting
aside a well reasoned judgment of trial court on the basis of
such case
-
law. Not only that the
appellate court probably without reading the provisions of section 7 of G & W Act has declared
that mother is natural guardian, therefore, in terms of section 7 of the G & W Act, 1890, she was
not required to seek her appo
intment as guardian of personal property of the minors. It is indeed
unfortunate that the appreciation of section 7 of G & W Act, by the Presiding Officer of Ist
Additional District Judge Hyderabad was erroneous. Section 7 of G & W Act does not talk about
mother's authority to sell immoveable property of minors as natural guardian and, therefore. I
deem it necessary to reproduce section 7 of the Guardian and Wards Act, 1890:
--
7. Power of the Court to make order as to guardianship.
---
(1)
Where the Court i
s satisfied that
it is for the welfare of a minor
that an order should be made?
(a) appointing a guardian of his person or property, of both or
(b) declaring a person to be such a guardian, the Court may make an order accordingly.
(2) An order under
this section shall imply the removal of any guardian who has not been
appointed by will or other instrument or appointed or declared by the Court
.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by
the Court,
an order under this section appointing or declaring another person to be guardian in
his stead shall not be made until the powers of the guardian appointed or declared as aforesaid
have ceased under the provisions of this Act.
"
12. It is also noticed tha
t the learned appellate court while reversing the judgment of the trial
court has not reflected on the reasons given by the trial court while dismissing the suit for
specific performance filed by respondents and allowing the suit for partition of suit prop
erty and
declaring that the agreement of sale dated 10
-
6
-
1997 was void ab initio illegal. The trial Court
while declining the relief of the specific performance of contract has relied on the admissions of
the respondents in his evidence that the respondent
had entered into an agreement with the
mother of the minors knowing well that she was not owner of the entire property at the time of
entering into agreement of sale. The trial court has also referred to clause
-
IV of the agreement of
sale in which the res
pondent has himself mentioned that the mother will obtained a certificate of
guardianship meaning thereby that the respondents were conscious of the fact that they were
entering into agreement of sale of the property of the minors with their mother who wou
ld
require certificate of guardianship from a competent Court to validate such sale agreement. Rut
the appellate court has ignored not only the reasoning advanced by the trial court without even
commenting on the same but also ignored the evidence of respo
ndent
.
13. I have also noticed that besides AIR 1936 Lahore 2020 which
Was never published, the other case
-
law relied upon by the appellate
Court i.e. 2002 MLD 202 (Mst. Zubeda Begum v. Additional Sessions
others) was also not relevant at all. In this Judgment issue was right of "Hizanat" and contest was
between mother and grandmother of Pth the minors. Question of sale of immoveable property of
minors by mother was not in issue nor it can be inferred from t
he said case
-
law that court has
held that the mother was natural guardian of the property of the minors. Under Mohammadan
Law, the mother has never been treated as guardian of the property of the minors. In the
Mohammadan Law by D.F. MuIla, Chapter
-
18 is o
n the subject of Guardianship of person and
property. The sections 352 to 358 deals with the proposition of appointment of "guardian of the
person of minors" and sections. 359 to 368 are on the proposition of appointment of "Guardian
of the property of min
or". Perusal of these sections reveals that mother or for that matter any
"female" relative of minor is not mentioned as qualified to be appointed as "legal guardian of
property of minor". In this chapter "mother" is entitled to only custody (Hizanat) of h
er child to
certain age (section 352) and even that right of as Hizanat is subject to fulfillment of certain
conditions (section 354)
.
14. It is settled law that according to Mohammadan Law, the mother of minor is not the natural
guardian to deal with th
e property of her minor children. At the most, the mother can be de facto
guardian of the person and property of a minor in term of section 361 of the Mohammadan Law,
but she has no power to transact the property of the minors. Alienation of immovable prop
erty of
minors is possible only by A the persons entitled to be appointed as legal guardians of property
under section 359 of Mohammadan Law subject to the conditions enumerated in section 362 ibid
after obtaining the permission of the court in terms of se
ction 362 ibid. In coming to this
conclusion I am fortified with the Judgment of honourable Supreme Court in the case reported in
PLD 2009 SC 751 (Muhammad Hanif v. Abdul Samad and others). In this Judgment, the
honourable Supreme Court has examined severa
l other case
-
law both from the jurisdiction of
Pakistan and Indian Supreme Court while holding that mother under the Mohammadan law is
entitled only to the custody of the person of her minor child upto a certain age according to sex
of the child but she is
not natural guardian of the property of the minors. At the most she can be a
de facto guardian of the property of her minor children. Relevant paras Nos.6 and 7 from the
Judgment are reproduced below
:
--
"6. We have heard the learned counsel for the part
ies and have also perused the available
record with their able assistance. The bare perusal of exchange Mutation No.62, dated 30
-
5
-
1967 passed by the Assistant Collector would make it manifestly clear that Mst.
Ghulam Fatima, the respondent No.7, was a min
or at that time and that her mother Mst.
Rabia, the respondent No.6 , got transferred in her favour the suit land of her minor
daughter, by way of exchange. There is nothing on record to show that Mst. Rabia was
ever appointed by any competent Court to be
the guardian of the property of her minor
daughter Mst. Ghulam Fatima, the respondent No.6, albeit mother of respondent No.7,
was not the natural guardian to deal with the property of her minor daughter, the
respondent No.7, under the Mohammadan Law. At th
e most, she was the de facto
guardian of the property of her daughter. Therefore, the exchange mutation No.62
showing exchange of suit land between the mother and her minor daughter was illegal
.
7. In the principles of Mahomedan Law by D.F. Mulla, (Pakis
tan Edition) (1995), it is stated that
in section 359 the following persons are entitled in order mentioned below to be the guardians of
the property of a minor
:
--
(1) The father
;
(2) The executor appointed by the father's will
;
(3) The father's fath
er
;
(4) The executor appointed by the will of the father's father;
In section 360, it is provided that in default of the legal guardians appointed in section 359, the
duty of appointing a guardian for the protection and preservation of the minor's prop
erty falls on
the Judge as representing the State. As regards a de facto guardian, it is laid down in section 361
a person may neither be a legal guardian (section 359) nor B a guardian appointed by the court
(section 360) but may have voluntarily placed h
imself incharge of the person and property of a
minor. Such a person is called de facto guardian. A de facto guardian is merely a custodian of the
person and property of the minor. Section 364 leaves no doubt that a de facto guardian (section
361) has no p
ower to transfer any right or interest in the immoveable property of the minor.
15. In the case in hand it is an admitted position that the mother has alienated 88% property of
her minors children and the respondents were fully aware of the fact that the
y were purchasing
the property of minors Within hardly four months of the death of their father Syed Zameer ul C
Hassan, who died on 3
-
2
-
1997. Consequently, the agreement of sale dated 10
-
6
-
1997 between
Mst.Khursheed Akhtar and Javcd Ahmed Shaikh and Muham
mad Akram Shaikh was void
agreement which cannot be enforced against applicants/appellants Nos.1 to 6. Appellants are
entitled to their respective share in the suit property as legal heirs of deceased Syed Zameer ul
Hassan.
16. In view of the above discussion, I hold that both the judgments and decrees of the appellate
court assailed in these second appeals were D Perverse and contrary to law and even evidence,
therefore, these second Pit, appeals are allowed and the judgment
s and decrees of the Ist
appellate court in Civil Appeals No.222 of 2012 and 246 of 2012 are set aside and D the
Judgments and Decrees delivered by the trial Court in Suits Nos.49 of 2006 and 70 of 2006 are
restored. The respondents shall bear the cost thr
oughout.
AG/F
-
16/Sindh
Appeal allowed.
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