Abdul Khaleque Mondal v. Talebur Rahaman Mondal — 1985 DIGILAW 219 (CAL)

JUDGMENT G. N Ray, J: This appeal is directed against the judgment and decree passed by the learned Subordinate Judge, 5th Court, Alipore in Title Suit No. 1 of 1969. The defendants Nos. 1 to 4 are the appellants in the instant appeal and the said Title Suit No. 1 of 1969 was instituted by the plaintiff-respondent Talebur Rabaman Mondal for partition of the joint properties described in the schedule to the plaint on the main ground that in 1947 when the said plaintiff Talebur Rahaman Mondal was a child, the defendant and the mother of the plaintiff Mst. Kohinoor Bibi, defendant No.5, representing the plaintiff, and some of the other defendants, namely, the brothers and sisters of the plaintiff, sought to partition the joint properties by a deed of partition which is Ext. J. The plaintiff has alleged that the properties initially belonged to one Mehar Ali Mondal, the grand father of the plaintiff and the plaintiff and the other parties are governed by the Sunni School of Mohamedan Law. It is the case of the plaintiff that according to the Mohamedan Law the plaintiff has inherited 3/32th Share in the joint properties and since such joint possession became inconvenient, the plaintiff brought the said partition suit for effecting partition by metes and bounds of the joint properties mentioned in the schedule to the plaint. The plaintiff has alleged that his mother, the defendant No. 5 Mst Kohinoor Bibi, was never appointed a de jure guardian of the plaintiff or her other minor son and daughter. As such, she had no authority to deal with the properties belonging to the minor as a de facto guardian and the alleged deed of partition effected in 1947 (Ext J) is void abinino and no effect can be given to the said deed of partition. It may be noted in his connection that after attaining majority, the present plaintiff along with his mother and other brothers and sisters, namely, defendants Nos. 5, 6 and 7 had also transferred some of the joint properties as referred to in Ext 1(2) and 1(1). So far as the properties covered by Ext. I dated 11th September, 1960 is concerned. It should be noted that the plaintiff had not attained majority and such property was conveyed by the mother of the plaintiff representing the minor as a de facto guardian. So far as the properties covered by Ext. I dated 11th September, 1960 is concerned. It should be noted that the plaintiff had not attained majority and such property was conveyed by the mother of the plaintiff representing the minor as a de facto guardian. The plaintiff has attained majority sometime in the year 1966. The said suit was contested by the defendants Nos. 1 to 4 by filing a joint written statement and it has been contended by the said defendants in the written statement that sometime in November, 1943 all the co-sharers and heirs of Meher Ali Mondal including Abu Bakkar Mondal, the father of the plaintiff, entered into an agreement for partition of the properties by referring their disputes of the Arbitrators, namely, Jyotindra Nath Mitra and Chandi Charan Bose with the help of an Engineer Hiron Kumar Sarkar. On the basis of such agreement among the co-sharers, the dispute relating to the partition of the joint properties had been referred to the said Arbitrators held sittings for the purpose of giving award and when the matter was almost finalized, the said Abu Bakkar Mondal Died. Thereafter his widow Mst. Kohinoor Bibi, defendant No. 5 representing herself and also her minor sons and daughters including the plaintiff Talebar Rahaman Mondal in terms of the earlier agreement made by Abu Bakkar Mondal referred the matter to the said Arbitrators for effecting partition amongst the co-sharers and the said Arbitrators thereafter published the award and the deed of partition dated May 23, 1974 was executed by the co-shares including Kohinoor Bibi for self and minor son in terms of the award The defendants have contended that the said deed of partition have duly been acted upon by all the parties and they trea1ed the separate allotment given to the respective co-sharers as their personal properties. The defendants have also alleged that a partition suit was also instituted by the present plaintiff and also his brothers and sisters being represented by their material uncle Siddique Ahmed as the next friend being Title Suit No. 72 of 1951 in the fourth court of the leaned Subordinate Judge Alipore. The said suit was contested by the defendants nos. 1 to 4 but the suit was ultimately dismissed for default in April 16, 1957. The defendants have also contended that the defendants no. 1 had instituted a suit against defendant nos. The said suit was contested by the defendants nos. 1 to 4 but the suit was ultimately dismissed for default in April 16, 1957. The defendants have also contended that the defendants no. 1 had instituted a suit against defendant nos. 2 to 4 being Title Suit No. 66 of 1957 in the title court of the learned Subordinate Judge, Alipore, for the purpose of declaration that the wakf created by the Slid defendant no.1 in respect of some. of the properties was a valid document and the said Title Suit No. 66 of 1955 ended in compromise between the parties whereby the defendants in the said suit had admitted the valid dedication of the properties mentioned in schedule ‘A’ to the plaint of that suit and creation of a Wakf-ali Aulad, since enrolled in the office of the commissioner of Wakf being E.C. No. 3311. The defendants have contended that after the creation of the said wakf, the defendants have no longer any personal interest in the properties mentioned in the schedule ‘A’ to the plaint and the plaintiff, therefore, cannot get nay decree for partition in respect of the said properties. The defendants have also contended that the plaintiff along with the brothers and sisters and mother had sold, transferred and/or conveyed portion of the properties allotted to them by virtue of the said deed of partition dated May 23, 1947 and they also agreed to transfer some other properties. Such acts on the part of the plaintiff, his mother, brothers and sisters clearly establish that the parties Clouding the plaintiff even after attaining the majority transferred some of the properties allotted to the plaintiff and his brothers and isters in terms of the said deed of partition dated May 23, 1947. In the circumstances, It must be held that the plaintiff even after attaining majority has ratified the said deed of partition dated May 23, 1947. The defendants have alleged that in the aforesaid circumstances the present suit for partition is not maintainable. A joint written statement has also been filed in the instant suit by the defendants nos. 5 to 7, namely, the mother, brothers and sister of the plaintiff. By the aforesaid written statement the said defendants Nos. The defendants have alleged that in the aforesaid circumstances the present suit for partition is not maintainable. A joint written statement has also been filed in the instant suit by the defendants nos. 5 to 7, namely, the mother, brothers and sister of the plaintiff. By the aforesaid written statement the said defendants Nos. 5, 6 and 7 have supported the case of the plaintiff and they have alleged that the said deed to partition was not binding on the parties and the mother was compelled to sign the said deed of partition when she was quite helpless. On the basis of the said pleadings of the parties, several issues were framed and the issues which have been finally framed after recasting the earlier issues have been included in pages 27 and 28 of part-1 of the Paper Book of this appeal. On behalf of the plaintiff the plaintiff himself his deposed and he has stated that he was only four months old when his father had died and he has attained majority in the year 1966. He has also stated that he has inherited 3/32th share in the suit properties and the defendant No.1 Abdul Khaleque Mondal, who had managed the properties, has failed to give accounts and partition are joint properties although he was asked for such accounts. He has also deposed rents from 25A, Meher Ali Mondal Street. The plaintiff, his brothers, and sisters are realizing rents of a tiled house there. His brother is realizing rent is respect of 6. Branfiled Road and No. 50-C, Diamond Harbour Road and 53, Hossain Shah Road. The plaintiff has admitted that he along with the brother and sister have transferred I cottah of holding No.25- C Meher Ali Mondal Street. The plaintiff has deposed that he is not aware of the wakf in respect of the suit properties. On behalf of the contesting defendants, defendant no. 1 Abdul Khaleque Mondal has deposed. The said Abdul Khaleque Mondal has stated that the said partition was effected on the bisis of agreement of all the parties including Abu Bakkar, the father of the plaintiff and reference to arbitration was made by Mst. Kohinoor Bibi in the similar terms as was made by Abu Bakkar Mondal. 1 Abdul Khaleque Mondal has deposed. The said Abdul Khaleque Mondal has stated that the said partition was effected on the bisis of agreement of all the parties including Abu Bakkar, the father of the plaintiff and reference to arbitration was made by Mst. Kohinoor Bibi in the similar terms as was made by Abu Bakkar Mondal. Abdul Khaleque Mondal, however, has stated in his deposition that he does not remember if Kohinoor Begum was appointed as a guardian by Court for her minor sons including the plaintiff. It may be noted in this connection that excepting Abdul Khaleque Mondal, none of the contesting defendants has deposed in this suit and the said Abdul Khaleque Mondal has not given any evidence to the effect that some of the properties mentioned in the schedule to the plaint are not the said Abdul Khaleque Mondal has not given any evidence to the effect that some of the properties mentioned in the schedule to the plaint are not the joint properties in respect of which the plaintiff is entitled to claim any partition. The learned Subordinate Judge after considering the perspective cases of the parties and the materials placed for the decision of the case and the evidences on record has come to the finding that Mst. Kohinoor Bibi, the defendant no.5 who is the mother of the plaintiff, was no a de jure guardian of the plaintiff and her other minor sons and daughters. As such, she had no authority to deal with properties of the minor and to agree to the partition to the joint properties on behalf of the minor sons and daughter including the plaintiff. The learned Judge has also held that the deed of partition dated May 13, 1947 is not at all legal and binding on the plaintiff and is illegal and void ab inito. The learned Judge has relied on the decision of Privy Council made in the case of Imambandi v. Haji Mutsuddi reported in 45 Indian Appeal 73 = Air 1918 Privy Council 11, The decision of the supreme Court made in the case of Md. Amin v. Vokil Ahmed reported in AIR 1952 SC 358 , the decision of Travancore Cochin High Court made in the case of Assiz v. Chithammn reported in AIR Trap Cochin 316. 2. Amin v. Vokil Ahmed reported in AIR 1952 SC 358 , the decision of Travancore Cochin High Court made in the case of Assiz v. Chithammn reported in AIR Trap Cochin 316. 2. The privy Council in Imamband’s case has held that the de facto guardian of a Mohammedan minor has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant nor can such transferee resist ail action of ejectment on behalf of the infant as a trespasser if the transferee is put to possession of the properly of a minor by the de facto guardian. The Supreme Court in Md. Amin’s case has held that the deed of settlement to which a Mohammedan nor is a party represented by a de facto guardian is void irrespective of the consideration that it benefited the minor. In the case of Assiz v. Chithamma, it has been held that the deed of partition to which a Mohammedan minor is a party represented by the mother as de facto guardian is void and not binding irrespective of the consideration that i benefited him or the arrangement was followed for a long period. The earned Sub-Judge, relying on the said decisions has held that the said deed of partition was void ab initio and as such, no effect can be given to the same. The learned Judge has further held that the earlier partition suit namely Title Suit No. 72 of 1951 of the minor having been dismissed for default on May 23, 1947 the order of dismissed cannot operate as res judicate in the instant suit. The learned Judge has therefore held that the plaintiff has 3/32th share in the joint properties and is entitled to the extent of the said share. The learned Judge has decreed that suit against the defendants nos. 1 to 4 and without cost against the other contesting have been directed to make an amicable partition within two months from the date of decree. In default, a Pleader Commissioner will be appointed for a final decree for partition. It has also been directed that the Pleader Commissioner should try as far as practicable not to disturb the possession of the parties and/or their transfers but he should allot the properties in their respective allotments. In default, a Pleader Commissioner will be appointed for a final decree for partition. It has also been directed that the Pleader Commissioner should try as far as practicable not to disturb the possession of the parties and/or their transfers but he should allot the properties in their respective allotments. The learned Judge has also decreed that the parties should render amicable accounts in the light of the observations made in the judgment within a period of two months from the date of judgment. In default, a Commissioner of Accounts shall be appointed at the instance of the plaintiff to take counts form both parties and a final decree of accounts shall be passed in terms of the Commissioner’s report. 3. Being aggrieved by the said judgment and decree, the instant appeal has been preferred in this Court. 4. Mr. Mitra appearing for the appellants has contended that the learned Sub-Judge has misunderstood the decision of the Privy Council in Imambans’s case. He has contended that the Privy Council has not laid down any broad proposition to the effect that any dealing by the de facto guardian of a mohammed in minor is illegal. The Privy Council has held in that decision that under the Mohammedan law, a person who has charge of the person or property of a minor without being his legal guardian and who may be called a ‘de facto’ guardian, has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant. The Privy Council has not held that the de facto guardian cannot effect partition of the joint properties representing the minor. Mr. Mitra has contended that partition is not a transfer and/or conveyance and as such the deed of partition pursuant to the agreement cannot be held to be illegal on the score that in such deed of partition mother as a de facto guardian represented the minor sons and daughter including the plaintiff. In support of this contention Mr. Mitra has referred to a decision made in the made of Sm. Durgamani Devi v. Mahiuddin reported in 86 CLJ 198 Bachawat J (as His Lordship then was) sitting singly has held that partition according to Vigneswar is the adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate. Mitra has referred to a decision made in the made of Sm. Durgamani Devi v. Mahiuddin reported in 86 CLJ 198 Bachawat J (as His Lordship then was) sitting singly has held that partition according to Vigneswar is the adjustment of diverse rights regarding the whole by distributing them in particular portions of the aggregate. Referring to a decision of the Privy Council made in the case of Gurnarayan v. Sheolal reported in 46 IA 1, the learned judge has held that the Privy Council has also held that the partition is a division mad between several person of joint land which belonged to them as co-proprietors so that each becomes the sole owner of the part allotted to them and the essence of partition is that the property transformed into estates in severalty and one of such estates is assigned to each of the former occupants for his sole use or as his sole property Referring to another decision of this Court made in the case of Suhasini Poddar v. Srinath Chakraborty reported in 49 CWN 769 and the decision made in the case of Kishorede Sundar v. Chunilal reported in 49 CWN 779, the learned Judge has held that partition is not an exchange nor a conveyance between one co-owner and another and the separate allotment obtained by one co-sharer and another, is obtained by virtue of his antecedent title as such co-sharer and in the result, the allottee is not an assignee within the meaning of the Bengal Money Lenders Act. 5. Mr. Mitra has also referred to a decision of a decision of the Supreme Court made in the case of Commissioner of Income Tax v. Keshab Lallubhai reported in AIR 1965 SC 866 . The question arose as to whether or not the partition of joint Hindu family was a transfer of assets to wife and minor sons within the meaning of s. 16(3)(a)(iii) and (iv) of the Income Tax Act. The Supreme Court has held that such partition is not a transfer. The Supreme Court has held that partition of a joint Hindu Family is not a transfer within the meaning of s. 16(3)(a)(iii) and (iv). The Supreme Court has held that such partition is not a transfer. The Supreme Court has held that partition of a joint Hindu Family is not a transfer within the meaning of s. 16(3)(a)(iii) and (iv). It may be noted that the Supreme Court has not decided that in no case, partition is a transfer of assets and the said decision was confined only to the question as to whether or not the partition amounted to transfer within the meaning of S.16 the Income Tax Act. 6. Mr. Mitra has also referred to another case reported in AIR 1951 Madras 213 in the case of Gutta Radhakrishnayar v. Gutta Sarasamma. It has been held that partition is really a process in and by which a joint enjoyment is transformed into an enjoyment in severalty. This decision was relied on by the Supreme Court in Keshab Lallubhai's caw Mr. Mitra has also referred to a decision of the Privy Council made in the case of Girijabai v. Sadasib Dhundiraj reported in 43 IA 151: AIR 1916 Privy Council 104. it has been held that a partition dots not give an allottee a title or create a title in specific form for the purpose of disposition independent of the wishes of other co-sharers So long as the interest of a co-sharer is indefinite, he is not in a position to dispute of it at his own hand but as soon as the partition is made, the co-sharer becomes the sale owner and has the same power of disposal as if it had been his acquired property. The right to get severance of status which all individual member had in the joint property does not spring from the deed of agreement of parties to which it gave expression, The agreement only recognises the rights to each individual member which he was entitled to assert at any time he liked. 7. Mr Mitra has also referred to another decision made in the case of V.N.S rai v Aijt Kumar Poplai, reported in AIR 1966 SC 432 . it has been held that the partition really means that whereas initially all the Coparceners had subsisting title to the totality of the property of the family jointly, that joint title is transformed by partition into separate items of properties allotted to them respectively. it has been held that the partition really means that whereas initially all the Coparceners had subsisting title to the totality of the property of the family jointly, that joint title is transformed by partition into separate items of properties allotted to them respectively. That being the true nature of partition the contention that partition of an undivided Hindu Family property means transfer of the property to the individual co-parcene cannot be accepted. It may be noted in this connation that in the said decision a question was raised as to whether or not a partition could be held to be a transfer within the meaning of S. 53 of the Transfer of Property Act read with S. 71(b) of the Registration Act. The Supreme Court has not decided such contention but has kept the said question open Referring to the aforesaid decision, Mr. Mitra has contended that although by Partition jointness of the property ceases and each of the co-sharers goes separate and exclusive title to the property allotted exclusively to the co sharers such act of partition and separate allotment by itself docs not amount to any conveyance of title. He has submitted that each of the co sharers had a share in an the joint properties and for convenience of parties, specific allotment are made so that each of the a1lottees gets exclusive title in the specific allotment. Mr. Mitra has contended that a co-sharer having title to the properties from the very beginning does not get exclusive title by virtue of any conveyance made in his favour by the other cu-sharers either actually or constructively. He has submitted that partition is really transformation of separate allotments for exclusive title and possession of each of the co-sharers in respect of the specific allotment given to each of the co-sharer Mr. Mitra has, therefore, contended that the learned Judge completely misconceived the decision of the Privy Council made in Imanband’s case as also the decision of the Supreme Court in Md. Amin’s case Mr Mitra has contended that a deed of family settlement by a de facto allotment of specific properties to the contending claimants Accordingly, the deed of settlement can be treated as conveyance "and applying the principle laid down by the Privy Council in Imabandi's .. Amin’s case Mr Mitra has contended that a deed of family settlement by a de facto allotment of specific properties to the contending claimants Accordingly, the deed of settlement can be treated as conveyance "and applying the principle laid down by the Privy Council in Imabandi's .. case, the Supreme Court has held that the deed of family settlement by a de facto guardian of a mohammedan minor is void and not binding on the minor As in the instant case, there has not been any conveyance by the de facto guardian in favour of any of the co-sharers but the de facto guardian only represented the minor for amicable partition of the joint pr0perty, it cannot be held that the conveyance having been made by the de facto guardian of a Mohammedan minor, such conveyance embodying the deed of partition is illegal. 8. Mr. Mitra has also contended that in equity also the plaintiff has not suffered any prejudice whatsoever The father of the plaintiff Abu Bokkar wanted to partition the joint properties by referring to the arbitration. Such reference to the arbitrators was also made and just before the award could be given, Abu Bakkar had died and the defendant No 5, Kohinoor Bibi, the mother of the plaintiff, only fulfilled the desire of Abu Bokkar by making reference to the same arbitrators and the award made by the arbitrators was in fact approved by Abu Bakkar although no formal publication of such award was made during his life time. Mr. Mitra has also contended that the present plaintiff, even after attaining majority accepted the said partition as valid and on the basis of such deed of partition, had dealt with specific properties allotted to the plaintiff, his mother, brother and sister. Mr Mitra has contended that the plaintiff after attaining majority had transferred some of the properties allotted to his mother, brother by Ext. 1(2) dated July 17, 1968 and Ext 1(1) dated December 17, 1968. In the said document, allotment of properties by amicable partition (Ext. J) has been clearly mentioned. In the aforesaid circumstances. it must be held that the said deed of partition even if the same was not binding on minor has been ratified by the plaintiff after attaining majority and after such ratification, the plaintiff is not entitled to question of the validity of the said document. J) has been clearly mentioned. In the aforesaid circumstances. it must be held that the said deed of partition even if the same was not binding on minor has been ratified by the plaintiff after attaining majority and after such ratification, the plaintiff is not entitled to question of the validity of the said document. Mr Mitra has also contended that the plaintiff wanted to avoid the deed of partition by seeking for a fresh partition in a suit which was dismissed for dtfau1t Mr. Mitra has submitted that the defendants Nos. 1 to 4 in their written statement have specifically given the particulars of such suit and have stated that the legality and validity of the deed of partition was under challenge in the earlier suit. Mr. Mitra has contended that the learned Sub Judge has misconceived the effect of dismissal of the said suit and has erroneously held that since the suit was dismissed for default, the decision of the suit cannot operate as res judicata. Mr Mitra has contended that the learned Judge failed to take note that the dismissal for default cannot operate as res judicata but such dismissal must operate as a bar of a subsequent suit under the provisions of Order 9, Rule 9 C.P.C. He has submitted that on that score alone, the instant suit for partition should have been dismissed by the learned Judge as being not maintainable in law. Mr Mitra has, however, submitted ill his fairness that although the defendant Nos. 1 to 4 have contended that some of the properties were not joint properties, the said defendants have failed to lead any evidence to that effect. Mr. Matra has, therefore, submitted that the deed of partition being legal and valid and the parties having acted on such deed for a long time and the plaintiff having accepted the said deed and ratified by effecting transfer of properties after attaining majority, is estopped from claiming any partition and is also not entitled to ask to any account from the defendants He has submitted that in the facts of the case, the judgment and decree of the learned trial court should be set aside by this Court. 9. Mr. 9. Mr. Dasgupta appearing for the plaintiff respondent No.1, has however, submitted that the Privy Council in Imambandi’s case has not decided that any conveyance made by a de facto guardian of a Mohammedan minor is illegal and invalid. He has submitted that the power of a de facto guardian to deal with the properties of the minor was taken into consideration by the Privy Council in the said decision. The various authorities of Mohammedan Law have been extensively quoted and/or referred to by the Privy Council in the said decision and on an analysis of Mohammedan Law it has been held that a de facto guardian of a Mohammedan minor has no power or authority whatsoever to deal with the immovable properties of the minor. As in the said case the question of legality and validity of a deed of conveyance came up for consideration before the Privy Council, it has been specifically held that the said deed of conveyance was illegal and void. In Imambandi’s case, the Privy Council after referring to various authorities of Mohammedan law has specifically observed to the following effected – “ It seems to their Lordships that the power to sell cannot be wider than the power to mortgage.” Mr. Dasgupta has contended that the pith and substance of the decision in Imambandi’s case is to the effect that a de facto guardian of a Mohammedan minor has no power or authority to deal with the immovable property of the minor. In the aforesaid circumstances, the learned Subordinate Judge is quite justified in relying on the said decision of Privy Council for the purpose of holding that the dealing by the de facto mother with the joint properties of her minor sons and daughter by effecting am cable partition of the said properties was completely without any authority and such deed of partition effected at the instance of the de facto guardian must be held to be illegal and void. 10. Mr. Dasgupta has also referred to the decision of the Supreme Court in Md. Amin's case ( AIR 1952 SC 358 ). He has submitted that since a de facto guardian had no authority to deal with immovable properties of the minor, a deed of family settlement was held to be void ab initio by the Supreme Court. Mr. Dasgupta has. Dasgupta has also referred to the decision of the Supreme Court in Md. Amin's case ( AIR 1952 SC 358 ). He has submitted that since a de facto guardian had no authority to deal with immovable properties of the minor, a deed of family settlement was held to be void ab initio by the Supreme Court. Mr. Dasgupta has. therefore, contended that the learned Judge was quite justified in referring to the said decision of the Supreme Court and holding that the amicable partition effected in May 23, 1947 at 4the instance of the de facto guardian of the plaintiff (minor at the relevant time) was illegal and void. In this connection, Mr. Dasgupta has referred to a decision made in the case of Syed Shah Ahmed reported in AIR 1971 SC 2184 . It has been held to the said decision that the partition decree based on compromise resulting in relinquishment of minor's share in a property by an unlawful guardian is void. In the said case, the sons and daughter of one Sk. Abdul Rahim entered into two agreements in July 1908 and appointed arbitrators to partition the Matrooka properties. On August 1, 1908 the Arbitrators made an award partitioning the properties and on August 13, 1908, there was a decree confirming the award Long thereafter, on July 24, 1941 one of the minors to the said arbitration proceedings after attaining majority, instituted a suit for setting aside the decree dated August 13, 1908. In the said partition deed the minor was not represented by a de jure guardian. It was contended that the minor was not being a party to the partition Cannot be held to be a party to the agreement for arbitration The Supreme Court allowed the said suit by setting aside the partition and the decree confirming the award Mr. Ddsgupta has also referred to Article 364 in Mullah's Principles of Mohammedan Law (18th Edition) Article 364 deals with the question of alienation of immovable property by the de facto guardian The learned Author has held that a de facto guardian is not entitled to deal with the properties of a Mohammedan minor and the decision of the Privy Council in Imambandi's case has been referred to by the learned Author in this connection. 11. Mr. 11. Mr. Dasgupta has also referred to a Full Bench decision of the Allahabad High Court made in the case of Md. Anto v. Md Reoti Kumar reported in AIR 1936 All 837. It has been held that a transaction amounting an alienation of an immovable property belonging to a Mohammedan minor by the de facto guardian being void, there is no question of ratification of the transaction. Mr. Dasgupta has strongly relied on the said decision and has submitted that the partition even if it does not amount to a conveyance or transaction, amounts to an alienation of the shares of the co-sharers to favour of one of the co-sharers in whose favour specific allotment is made so that such co-sharers lose their joint title and the specific allottee gets exclusive title and possession in respect of the specific allotment made in his favour. Mr Dasgupta has contended that the partition must be held to be a transfer amounting to an alienation of immovable property. Such transaction of immovable property of a Mohammadan minor by the de facto guardian representing the minor is therefore void ab initio and there cannot be any question of ratification of the alleged partition which in the eye of law has no existence. In this coneection, Mr. Dasgupta has referred to a decision made in the case of Shankar Shaw v. Anukul Chandra Bose, reported in 71 CWN 174. The Division Bench of this Court has held that it will be too much to say that partition is not transfer so as to confer exclusive title to the allottee in respect of his portion. Indeed, the effect of partition when there is a valid partition is to convert joint tile of the properties into exclusive title of the particular allottee and to convert the joint title of the properties title to the allottee title of the particular allotteee and to convert the joint possession into exclusive possession. It may be that for certain special purpose, partition is not a transfer or that as to the process by which the transfer takes effect or as to the nature of transfer for purposes of I.P.Act, there has been some divergence of judicial opinion but all the authorities have agreed that is effect a transfer and converts the original joint title into separate title of the allottees. Mr. Mr. Dasgupta has submitted that the partition cannot be a transfer within the meaning of S.16 of the Income Tax Act or some other statutes but it cannot be contended that the partition is not a transfer for all purposes and in no case, the partition can be construed as transfer. Mr. Dasgupta has contended that when the co-sharer gets exclusive title and possession in respect of a specific allotment made in his favour, it must be held that other co-sharers’ right and possession in respect of such specific allotment are extinguished and such extinguishments are only possible by an amicable transfer of their interest in favour of the co-sharer getting the specific allotment by fiction of law. Mr. Dasgupta has also contended that if the de facto guardian of a Mohammedan minor has no authority to effect partition by the process of family settlement it will be wholly irrational to contend that such partition can be effected by the deed of partition at the instance of the de facto guardian. The very purpose of restricting a de facto guardian to deal with immovable property of a Mohammedan minor will be frustrated by such action. 12. Mr. Dasgupta has also contended that in the written statement filed by the defendants nos. 1 to 4 it has been stated that the instant partition suit is not maintainable because of the provisions of Order 9 Rule 9 of the Code of Civil Procedure in view of the fact that a partition suit had earlier been instituted by the minors represented by their next friend Mr. Dasgupta has contended that a partition is a recurring cause of action and unless such specific pleading is made by the defendant and relevant materials including the plaint in the earlier suit is made available it is not possible to contend that the instant partition suit is not maintainable in view of Order 9 Rule 9 of the Code of Civil Procedure. Mr Dasgupta has contended that all the joint properties have been brought in the hatch pot in the instant partition "suit and the contesting defendants nos. 1 in 4 have not been able to contend that the suit for partition is bad for not bringing the joint properties in the hotch pot. Mr. Mr Dasgupta has contended that all the joint properties have been brought in the hatch pot in the instant partition "suit and the contesting defendants nos. 1 in 4 have not been able to contend that the suit for partition is bad for not bringing the joint properties in the hotch pot. Mr. Dasgupla has also submit led that since the plaintiff and his mother and brothers and sisters have transferred some of the joint properties to different persons and the defendant no. 1 in his turn h8s also transferred some of the properties in favaur of other persons, it is consistent with the principle of partition and equity that at the time of making allotment in favour of different' co-sharers the properties transferred by some of the co-sharers should be allotted in the share of such co-sharers. The learned trial Judge has very fairly given such direction to the partition commissioner. Mr. Dasgupta has also Contended that the defendant no. 1 had made a deed of wakf in respect of some of the joint properties and a suit instituted by some of the defendants the validity of such wakf had been admitted by the said contesting defendants in the said suit The plaintiff and his mother and brothers and sisters not being parties to such transaction, namely, the creation of wakf or in the suit or in the compromise in the suit instituted by some of the defendants admitting the validity of wakf deed, the plaintiff is not bound by the said wakf and it must be held that the said wakf is completely illegal and without any authority Mr Dasgupta has therefore contended that the learned Judge having decided the case in accordance with law and also with the principles of equity, the appeal must fail and should be dismissed with costs. 13. In answer to the contentions made by Mr. Dasgupta, MR. Mitra has, however, contended that although in Imambandi’s case, the Privy Council has quoted various observation made by the exponents of Mohammedan law, such observation of the Privy Council cannot be held to be the decision of the Privy Council so that the same may be held to be binding. Mr. Mitra has contended that it is only the ratio decidei di which has a binding effect and not the observations made in the body of the judgment. In this connection, Mr. Mr. Mitra has contended that it is only the ratio decidei di which has a binding effect and not the observations made in the body of the judgment. In this connection, Mr. Mitra has referred to a decision of the Supreme Court made in the case of State of Orissa v. Sudhansu Sekhar Misra reported in AIR 1968 SC 647 . Referring to a decision of the appeal court of England made in the case of Quinn v. Lethem reported in 1901 Appeal Cases 405, the Supreme Court has held that a decision is only an authority for what is actually decides. What is the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it Mr. Mitra has, therefore contended that partition may have effect of transfer but partition has not been held to be a transfer under different statutes and for various purpose for the reason's indicated hereinbefore. The Privy Council has also not held in lmambandi's Case that any dealing with the property of a Mohammedan minor by a de facto guardian is void ab initio. The conveyance made by a de facto guardian of a Mohammedan minor has been held to be said ab initio in lmambandi's case Partition not being a conveyance cannot be held to be said ab initio. Mr. Mitra has further contended that even assuming that such partition having been effected at the instance of the de facto guardian of a Mohammedan minor is avoidable at the instance of the minor, the minor having ratified the same after attaining majority, is not entitled to challenge the validity of the same after such ratification. 14. After considering the respective submissions made by the learned Counsel for the respective parties it appears to me that in Imambandi's case the Privy Council has considered the power of a de facto guardian of a Mohammedan minor to deal with the immovable properties of a minor. 14. After considering the respective submissions made by the learned Counsel for the respective parties it appears to me that in Imambandi's case the Privy Council has considered the power of a de facto guardian of a Mohammedan minor to deal with the immovable properties of a minor. Various authorities of Mohammedan law have been referred to by the Privy Council and on analysis, the Privy Council has held that dealing with immovable properties of a Mohammedan minor by a de facto guardian thereby binding the minor in respect of such immovable property has not been approved in the Mohammedan law It is true that the case of conveyance carne up for decision in Imarnbandi's case and the Privy Council has ultimately held that a conveyance by de facto guardian of a Mohammedan minor is said ab initio. But it cannot he held that the Privy Council has not indicated in the said judgment that under the Mohammedan law dealing with immovable pr0perties of a Mohammedan minor by a de facto guardian binding the minor is not permissible. It appears that the deed of family settlement has been held to be void ab initio by the Supreme Court in the case of Md. Amin (supra) for the same reason that a de facto guardian of a Mohammedan minor cannot deal with the immovable properties thereby binding the Mohammedan minor. It appears to me wholly irrational and contrary to the restriction put on a de facto guardian of a minor Mohammedan to deal with minor's immovable properties thereby binding the unfortunate minor, if such de facto guardian though not permitted to effect partition by a deed of family settlement as specifically held by the 'Supreme Court, can bring about such partition by taking resort to a simple deed of partition on the footing that, partition is not transfer of immovable property. Any settlement of immovab1e property of minor Mohammedan by the de facto guardian through the process of partition, cannot but frustrate (he very embargo under the Mohammedan law on a de facto guardian to alienate or deal with the immovable property of a minor thereby binding him Even assuming for argument's sake that the Imambandi's case, the Privy Council has actually decided that a conveyance made by the de facto guardian of Mohammedan minor is void ab initio, it must be held that the Privy Council has elaborately dealt with the power of dealing with immovable properties by a de facto guardian in Imambandi's case, It appears to me that from the observations made by the Privy Council in the said decision, it can be safely held that apart from the deed of conveyance, a de facto guardian of a Mohammedan, minor is also not permitted to otherwise deal with the immovable properties of a Mohammedan minor so that such minor is bound by such dealing by a de facto guardian is respect of immovable properties. In my view the Travancore and Cochin High Court in Assiz v. Chithamma (AIR 1954 Travarcore & Crochin 370) has correctly decided that a deed of partition to which a Mohammedan minor is a party represented by a de facto guardian is void and not binding on the minor irrespective of the consideration that it benefited the miner, As the deed of partition effected by a de facto guardian is void ab initio, the question of subsequent ratification. even if any, is immaterial and should not be taken into consideration in the instant case Although there is enough force in the contention of Mr. Dasgupta that a partition, may not be a transfer within the meaning of different statures but for all intent and purpose the partition has the essence of transfer, it is not necessary for us to decide in this case as to whether or not partition is a transfer and as such conveyance within the meaning of Transfer of Property Act The instant suit can be disposed of on the simple ground that a de facto guardian of a Momammedan minor is incompetent to represent the minor in effecting partition of immovable properties thereby binding the minor. It may also be noted here that any contention about the non-maintainability of the present partition suit in view of the bar under Order 9 Rule 9 of the Code of Civil Procedure because of the dismissal for default of an earlier partition suit can not be accepted in the facts und Circumstances of the case. Claim for partition is a recurring cause of action That apart, in the absence of the pleading in the earlier suit and also in the absence of a specific pleading by the defendant in the Instant suit about the maintainability of this suit in view of the earlier wit for partition being dismissed for default, such contention cannot be raised in the instant appea1. The learned Judge, in our view, has given proper direction for effecting partition by metes and bounds to the partition commissioner after taking iota account the respective transfers made by the co-sharers of the joint properties. In the circumstances, no interference is called for in the appeal. 15. The appeal, therefore, fails and is dismissed with costs. Let the records be sent down to the court below as expeditiously as possible. Sankari Prasad Das Ghosh, J : I agree. Appeal dismissed.