Azhar Ali vs Khalid Iqbal Ss — 2024 MLD 1455 LAHORE-HIGH-COURT-LAHORE

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Azhar Ali VS Khalid Iqbal Ss. 29, 32 & 36---Property belonging to mentally disordered person---Fraud---Plaintiff and respondent filed a suit for declaration, cancellation of sale deed and mutation, mandatory injunction on the grounds that their predecessor was owner of the suit property but was mentally disordered person and that the defendants/ petitioners got transferred the suit property in their favour fraudulently through registered sale deed---Defendants/petitioners filed contesting written statement, pleaded normal health of vendor and genuinity of sale transaction---Trial Court decreed the suit and appellate Court dismissed the appeal---Validity---Admittedly, on 01.10.2011 the respondents Nos.1 to 10/ plaintiffs filed an application under Ss.29 & 32 of the Mental Health Ordinance, 2001, before the District and Sessions Judge, for declaring predecessor /father of respondents Nos.1 to 10/plaintiffs and respondents Nos.11(i) & (ii) as a mentally disordered person---Respondents Nos.11(i) & (ii) filed contesting reply to the said application---District Court vide order dated 13.12.2012, by accepting the application, appointed respondents Nos.11(i) & (ii) as managers of the person and properties of mentally disordered person---Said application was filed on 01.10.2011, whereas the sale deed No.463/1 was registered on 02.11.2011 and mutation No.2263 was sanctioned on 19.11.2011 i.e. during the pendency of the said application---Matter regarding alienation of suit land by the respondents Nos.11(i) & (ii)/defendants in favour of the petitioner/defendant came before the Court of Protection, who in that regard observed that the validity of the alienation/transaction would be determined by the Civil Court---Moreover, under S.36 of the Ordinance it was mandatory for respondents Nos.11(i) & (ii), being the managers of the mentally disordered person, to file application before the Court of Protection in order to obtain permission for sale/transfer of the suit land of the mentally disordered person but neither any application was filed nor any permission was obtained by the petitioner or respondents Nos.11(i) & (ii)/defendants, from the Court of Protection---Thus, the alienation/transfer of the suit land made by the respondents Nos.11(i) & ii) in favour of the petitioner had no sanctity in the eyes of law---Such proven facts suggested that fraud had been committed by the petitioner in connivance with the managers of the person and properties of mentally disordered person to usurp the suit properties and also to deprive the respondents/plaintiffs from their due legal share from the suit properties---Moreover the petitioner/vendee was under unalienable extraordinary legal obligation to observe all the care and caution and should have made intelligent investigation with regard to the competence of the vendor or his agent or ward of property of a mentally disordered person under the principle of caveat emptor and any disclosure of post transaction flaw in the title of owner, the vendee was precluded to take plea of bona fide purchaser---Furthermore, the application under Ss. 29 & 32 of the Ordinance was filed by the respondents Nos.1 to 10 against respondents Nos. 11(i) & (i) on 01.10.2011 whereas the impugned transactions was made by the respondents Nos.11(i) & (ii) in favour of the petitioner on 02.11.2011 and 19.10.2011 i.e. during the pendency of the application, as such, principle of lis pendens was fully attracted in the case---Concurrent findings of fact did not call for any interference by the High Court in exercise of its revisional jurisdiction, in absence of any illegality or any other error of jurisdiction---Revision petition was dismissed accordingly.

Azhar Ali vs Khalid Iqbal Ss — 2024 MLD 1455 LAHORE-HIGH-COURT-LAHORE

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