PLJ 2011 SC 889
Present: Tassaduq Hussain Jillani, Mahmood Akhtar Shahid Siddiqui & Khilji Arif Hussain, JJ.
ABDUL REHMAN and others--Appellants
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
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 infavour 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 ofZahoor 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 ofBasharat 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 PhalooShah, 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 thatBasharat 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.