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1977 DIGILAW 148 (MP)

Paras Ram v. Sayyed Ayub Ali

1977-04-19

C.P.SEN

body1977
Short Note : This is defendant's second appeal against the reversing decree of the lower appellate Court whereby the plaintiff's suit for possession has been decreed. The trial Court had dismissed the suit. Held : Mulla on his Mohammedan Law 17th Edn. in Section 362 has mentioned that a legal guardian of the property of a minor has no power to sell the immovable property of the minor except in certain cases, namely, (i) where he can obtain double its value, (ii) where the minor has no other property and the sale is necessary for his maintenance, etc. Under the sale-deed Ex.P-1 dated 18-5-1960, 32.70 acres of land was purchased for Rs. 7,000. There is no evidence given regarding the quality of the suit land and as to whether all the lands were of uniform quality. Though the average value of the land purchased may come to about Rs. 220 per acre but in the absence of any evidence about the quality of the suit land, such a value cannot be fixed for the suit land. Even if the value is fixed at Rs. 220 per acre, the value of 5 acres would be about Rs. 1,100 and double its price would be Rs. 2,200, whereas the suit land has been sold for Rs, 2,000, i.e. less than double its value. This apart, the suit land was purchased in 1960 and it was sold to the defendant in 1962 i.e. after 2 years, and the learned appellate Judge has observed that there was considerable increase in the prices of land during this period. Besides, the defendant has admitted that he purchased the land with the standing crop, may be on 31-7-1962 the crops were not ready for harvesting but crops were there in the process of growth. Therefore, it cannot be said that the suit land was sold twice its value. Though in the sale-deed it has been recited that the suit land is being sold for prosecuting further studies of plaintiff Akbar Ali, but Akbar Ali has deposed that he had already left the studies before execution of the sale-deed. His statement has not been challenged in cross-examination and nothing has been clarified as to whether Akbar Ali wanted to resume his studies after the funds were made available. Under the circumstances, the sale-deed Ex.D-7 in favour of the defendant has been rightly held to be invalid. His statement has not been challenged in cross-examination and nothing has been clarified as to whether Akbar Ali wanted to resume his studies after the funds were made available. Under the circumstances, the sale-deed Ex.D-7 in favour of the defendant has been rightly held to be invalid. If the sale is invalid, it could not be validated by the Ikrarnama Ex.D-1. The defendant should have taken from both the plaintiffs a registered document validating the sale. Lastly, it is contended that on equitable considerations this Court should order refund of the consideration paid to the plaintiff's father. Apart from the fact that there is no such plea nor any Court-fees paid for this counter-claim, the claim also does not seem to be within limitation. There is also no evidence to show that the plaintiff Akbar Ali derived benefit out of the consideration paid by the defendant. Under the circumstances, no such relief can be granted by this Court. Appeal dismissed.