PLJ 2011 SC 889
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present: Tassaduq
Hussain Jillani, Mahmood Akhtar Shahid Siddiqui & Khilji Arif Hussain,
JJ.
ABDUL REHMAN and others--Appellants
versus
GHULAM MUHAMMAD (deceased) through L.Rs,
etc.--Respondents
Civil Appeal No. 639 of 2006, decided on
11.2.2010.
(On appeal against the judgment dated
1.3.2006 passed by Lahore High Court, Lahore in RSA No. 81/1998)
Limitation Act, 1908 (IX of 1908)--
----Arts. 91, 90 & 144--Applicability
of--Thumb impression on power of attorney were sent to handwriting
expert--Effect of report--Not tallied with admitted thumb impression--Fraud and
forgery against general attorney--Cancellation of sale-deed--Regular second
appeal was allowed by High Court--Challenge to--Validity--Alleged power of
attorney as defendants had failed to prove the execution of the general power
of attorney, all the subsequent transactions pursuant thereto were
void--Impugned sale-deeds did not exist in the eyes of law--Limitation
prescribed in Arts. 91 or 120 of Limitation Act, would
not be applicable and the matter would be governed by Art. 144 of Limitation
Act--While considering the question of limitation in a suit seeking
cancellation of documents the Court has to keep in view the distinction between
the documents which are void ab intio
and nullity in the eyes of law and documents which are voidable and require a
formal cancellation through a judicial verdict. [P.
893] A & B
Limitation Act, 1908 (IX of 1908)--
----Arts. 143 & 144--Forged
document--Time barred--Distinction between a void and voidable
transaction--Sound disposing mind--In case of void transactions, the suit would
be governed by Arts. 143 & 144 of Limitation Act--Court having analyzed the
evidence on record had the will was a void transaction as testator had no sound
disposing mind when he made the will, that a person who has no sound disposing
mind does not posses the capacity to make a will and
if he purports to make a will it cannot be said that legally there is any will
in existence. [P. 893] C
Limitation Act, 1908 (IX of 1908)--
----Arts. 142 & 14--Question of
limitation--Fraud and forgery against general attorney who executed the sales
on his behalf--Suit for cancellation of sale-deed--Remedy within limitation
period prescribed in law--Suit was not filed within the period--Petitioner had
failed to prove because neither the alleged attorney was examined or attesting
witness of the document and even the document itself was not placed on
record--Court even went to the extent of holding that petitioner in order to
protect their fraud have not intentionally produced general power of attorney--Transaction
was a void transaction and relevant Art would be Arts. 142 or 144 of Limitation
Act--Appeal was dismissed. [P.
894] D
Mr. Hassan Ahmad Khan Kanwar,
ASC for Appellants.
Mr. Khizar Abbas Khan, ASC for Respondents
Date of Hearing: 11.2.2010
Order
Tassaduq Hussain Jillani, J.--Facts giving rise to the instant appeal
briefly stated are that predecessor-in-interest of respondents namely Ghulam Muhammad alleging fraud and forgery against the
general attorney who purportedly executed the sales on his behalf, filed a suit
for possession and cancellation of Sale-Deed No. 135 dated 22.3.1972, Mutation
No. 923 dated 18.4.1977, Mutation No. 933 dated 21.5.1978 and Mutation No. 1219
dated 24.4.1985. Having framed the issues and recorded the evidence, the learned
Trial Court dismissed the suit on 7.6.1995 and his appeal met the same fate
before the learned District Judge. However, the Regular Second Appeal filed by
him was allowed by the learned High Court vide the impugned judgment dated
1.3.2006.
2.
Learned counsel for the appellants in support of the appeal submitted
that the learned High Court has not correctly decided the issue of limitation;
that the learned Court fell in error in not appreciating that the suit for
cancellation of document is governed by Article 91 of the Schedule of the
Limitation Act for which the limitation prescribed is three years. In the
instant case, he added, the sale was made on 22.7.1972 whereas the suit was
instituted on 5.12.1984. He further contended that even if the impugned
mutations were voidable, the party aggrieved had to seek the remedy within the
limitation period prescribed in law and if the suit was not filed within the said period, the same was liable to be dismissed and the
concurrent judgments of the learned Trial Court and the learned First Court of
Appeal on that count were unexceptionable which could not have been interfered
by the learned High Court in Regular Second Appeal. In support of the
submissions made, learned counsel relied on Muhammad Akbar Shah Vs. Muhammad
Yusuf Shah and others (PLD 1964 SC 329), Anwar Zaman
Vs. Bahadar Sher (2000 SCMR
431) and Hamida Begum Vs. Murad
Begum (PLD 1975 SC 624).
3.
Learned counsel for the respondents, on the other hand, defended the
impugned judgment by submitting that predecessor-in-interest of
respondents/plaintiff had been defrauded; that he had not appointed Basharat Ali as his general attorney and the impugned
sale-deed executed by him on 22.3.1972 and all the transactions thereafter were
void. He further submitted that both the Courts i.e. the learned Trial Court
and the learned First Court of Appeal had decided the two issues relatable to
the merits of the case in favour of the
respondent/plaintiff but not non-suited him on question of limitation which was
violative of the law declared by this Court.
4.
We have heard learned counsel for the parties and have gone through the
evidence on record.
5.
In terms of the divergent pleas, the learned Trial Court had framed 12
issues out of which the following issues are crucial:--
"1. Whether
the plaintiff is owner of the suit property and registered Sale-Deed No. 135
dated 22.3.1972 and Mutation No. 923 attested on 18.4.1977 and mutation
attested on 21.5.1978 and No. 1219 and attested on 24.4.1985 are result of
fraud hence liable to be set aside and cancellation? OPP
2. Whether
the power of attorney dated 21.8.69 from plaintiff in favour
of one Basharat Ali s/o Allah Ditta
is a forged document? OPP
3. Whether
the plaintiff is entitled to the possession of the suit land? OPP
4. Whether
the suit is time barred? OPP 1-3"
6.
The learned Trial Court decided the Issue Nos. 1 & 2 against the
appellants/defendants and in favour of the
respondent/plaintiff by holding as follows:--
"So the defendants in order to
protect their fraud have not intentionally produced general power of attorney.
The defendants have also not examined Basharat Ali
the alleged general attorney of the plaintiff despite the fact Basharat Ali, Zahoor and Allah Ditta the defendants not only live in the same village but
also in one house and under the same roof and this fact has been admitted by Sikandar Khan DW4 in the last line of his
cross-examination. So when Allah Ditta and Basharat Ali live in the same house, Allah Ditta could have very easily got examined and produced him
in the Court to show that the plaintiff had infact
appointed him as his general attorney. The defendants have also not examined
any marginal witnesses of the general power of attorney to prove that the
plaintiff had infact executed general power of
attorney in favour of Basharat
Ali. Although initially the burden of proving the factum that a fraud was
committed in the execution of general power of attorney was placed on the
plaintiff but to my mind when the plaintiff gave the statement that he had not
appointed Basharat Ali as his general attorney, the
onus shifted to the defendants to prove to the contrary i.e. to prove by way of
positive evidence that the plaintiff had infact
appointed Basharat Ali as his general attorney."
7.
It is in evidence that the so called general attorney Basharat Ali was son of Allah Ditta,
the ultimate beneficiary and the said Basharat Ali
stated to have sold the suit land in favour of Abdul Rehman (Defendant No. 1) and the latter through his
attorney Zahoor Ahmed exchanged 154 kanals of suit land with 32 kanals
of suit land with Allah Ditta, father of the alleged
attorney (Basharat Ali). However, the thumb
impression of Abdul Rehman on the power of attorney
(Ex.D2) executed in favour of Zahoor
Ahmed were sent to the handwriting expert and the report was to the effect that
those did not tally with the admitted thumb impression of Abdul Rehman. Having decided the afore-referred two issues on
merits in favour of the respondent/plaintiff, the
suit was dismissed as time-barred. The learned High Court reversed the
concurrent findings of the two Courts below on Issue No. 4 by holding that
since the impugned Sale-Deeds No. 135 dated 22.3.1972, Mutation No. 923 dated
18.4.1977, Mutation No. 933 dated 21.5.1978 and Mutation No. 1219 dated
24.4.1985 were the result of a forged document i.e. the alleged power
of attorney in favour of Basharat Ali and as the
respondent/defendants failed to prove the execution of the said general power
of attorney, all the subsequent transactions pursuant thereto were void, the
impugned sale-deeds did not exist in the eyes of law, therefore, the limitation
prescribed in Article 91 or 120 of the Limitation Act would not be applicable
and the matter would be governed by Article 144 of the Limitation Act. This
finding is in line with the law laid down by this Court in Muhammad Akbar Shah Vs. Muhammad Yusuf Shah and others (PLD 1964 SC 329) and
Abdul Majid and 6 others Vs. Muhammad Subhan & 2 others (1999 SCMR 1245). While considering
the question of limitation in a suit seeking cancellation of certain documents,
the Court has to keep in view the distinction between the documents which are
void ab initio and nullity in the eyes of law and
documents/instruments which are voidable and require a formal cancellation
through a judicial verdict. In this context, the judgment of this Court
reported at Muhammad Akbar Shah Vs. Muhammad Yusuf
Shah and others (PLD 1964 SC 329) is rather instructive. In the said case on
the death of one Syed Phaloo
Shah, mutation of inheritance was sanctioned in favour
of Muhammad Yousaf Shah on the basis of a purported
registered will. The said will was challenged by way of civil suit by the rival
claimant on the ground that the deceased was insane and at-least possessed no
disposing mind and that the will was the result of undue influence. He also
alleged that the will was a forged document. The suit was decreed, however, in
appeal, the learned High Court dismissed the suit by invoking Article 120 of
the Limitation Act and held the suit to be time-barred. The matter came up
before this Court and a full Bench of this Court after an elaborate comment on
the distinction between a void and voidable transaction, came to the conclusion
that in cases of void transactions, the suit would be governed by Article 143
or 144 of the Limitation Act. The Court having analyzed the evidence on record,
held that the will was a void transaction as the testator had no sound
disposing mind when he made the will; that a person who has no sound disposing
mind does not possess the capacity to make a will and if he purports to make a
will, it cannot be said that legally there is any will in existence. The Court
observed at page 335 as under:--
"The principle is that if the
transaction which is sought to be set aside was a voidable one, it is essential
that the transaction be set aside. If it be no voidable, but
void, the question of setting it aside would not arise. As to whether a
transaction is voidable or void there is simple criterion: did the transaction
create any legal effects, that is, did the transaction transfer, create or
terminate or otherwise affect any rights? In a void transaction no legal
effects are produced. In a voidable transaction legal effects are produced but
some person has the right to avoid the transaction and if he exercises that
option to process by which rights were affected is reversed and the original
situation as it existed before the transaction is restored (subject to
adjustment of equities). If the Court which is dealing with the question of
limitation reaches the conclusion after considering the evidence before it that
the transaction in dispute by its own force produced legal effects it would be
necessary that the transaction be set aside and limitation will be governed by
the article applicable to the setting aside of the transaction. It if comes to
the conclusion that by itself the transaction produced no effect no need for
setting it aside will arise. It is necessary to state here that a voidable transaction should not be confused with a
transaction which prima facie looks valid and in relation to which the burden
of proof will be on the party alleging its invalidity. There may be a document
in existence a registered deed of sale or mortgage or some other transaction, which
is by presumption genuine and the person who purports to be its executant may have the burden on his to show that it is a
forgery. Still it is not a voidable transaction because ultimately when the
Court comes to the conclusion that it is a forgery it will be found that in
fact the document never affected any right. That is the criterion for
determining whether a document is void or voidable. Its apparent validity or
the question of burden of proof is in this respect irrelevant. No person is
bound to sue for setting aside a document just because it is raising a
presumption against him. There is no need for the person who is shown to be the
executant of the forged document to sue for its
cancellation or for setting it aside though he may be taking a risk in allowing
the document stand for proof of forgery may become difficult as time passes. A
transaction which is not genuine may have been incorporated even in the revenue
records which have a presumption of correctness. Still there is no need to have
the transaction set aside for revenue records are only evidence of it and do
not affect title."
8.
In the instant case as discussed in paragraph 6 above, the Court having
examined the evidence on record found that petitioner/defendants had failed to
prove that Basharat Ali was a general attorney of the
respondent/plaintiffs because neither the said alleged attorney was examined
nor the attesting witnesses of the said document and even the document itself
was not placed on record. The Court even went to the extent of holding that
"the petitioner/defendants in order to protect their fraud have not
intentionally produced general power of attorney". That being so, the
transaction in question was a void transaction and the relevant Article would
be Article 142 or 144 of the Limitation Act. The learned High Court has rightly
decided the question of limitation.
9.
For what has been discussed above, we do not find any merit in this
appeal, which is accordingly dismissed.
(R.A.) Appeal
dismissed.
