JUDGMENT Hon’ble S.U. Khan, J.—Heard learned counsel for the parties. 2. The main point involved in this Second Appeal is as to whether under Muslim Law a widow can alienate the property of her minor sons and daughters. 3. This is defendant’s Second Appeal arising out of Original Suit No. 549 of 1972. The suit was instituted by Iqbal Ahmad and others - respondents 1 to 8, sons, daughters and wife of Mohd. Mustafa. Appellant Smt. Kaneeza Khatoon was defendant first set. Gulam Rasool and three others respondents 9 to 12 were defendants second set and Mst. Fatima Biwi mother of defendant second set was defendant third set. She died during pendency of the proceedings before the Courts below and respondents 9 to 12 were her only legal representatives. 4. The suit was filed for separation of 14/16 share of the plaintiffs and for damages. Munsif Magistrate II (Civil), Azamgarh even though dismissed the suit however, liberty was granted to the plaintiffs for filing separate suit for redemption of their 14/16 share. It was done in view of Section 60 (First proviso), 60-A, 91 and 92 of Transfer of Property Act. Against the said decree Smt. Kanneza Khatoon present appellant/defendant No. 1 filed Civil Appeal No. 660 of 1982. VI Additional District Judge, Azamgarh dismissed the appeal through judgment and decree dated 1.8.1987 hence this Second Appeal. 5. This Appeal was admitted on 19.4.1996 observing that all the questions mentioned in the grounds of appeal raised substantial questions of law. However a more specific order was passed on 7.11.2005 framing the following five specific substantial questions of law for decision of the appeal and thereafter it was mentioned that no other substantial question of law arose in the appeal for decision. The said substantial questions of law are quoted below : 1. Whether the order passed on the application under Order 22 Rule 10 C.P.C. in the Misc. Case No. 38 of 1972 by the executing Court in the decree of Original Suit No. 313 of 1963 will operate as res-judicata under Section 11 of C.P.C. as it acquired finality under Section 47 C.P.C. between the parties/predecessor-in-interest of the parties? 2. Whether the dismissal of Original Suit No. 5 of 1971 between the parties would bar filing of a fresh suit on the same cause of action under Order 9 Rule 2 C.P.C.? 3. 2. Whether the dismissal of Original Suit No. 5 of 1971 between the parties would bar filing of a fresh suit on the same cause of action under Order 9 Rule 2 C.P.C.? 3. Whether the pleadings filed by defendants second set, the predecessors-in-interest of the contesting respondents of this appeal shall operate as admission of these contesting respondents also for the purposes of Original Suit No. 5 of 1971? 4. Whether the Courts below had erred in making misapplication of the provisions of Section 29 of the Guardians and wards Act and Sections 35,60 and 95 of Transfer of Properties Act? 5. Whether the sale-deed executed by the mother in respect of the shares of her minor sons and daughters is a void or voidable transaction and whether the instruments of such transfer are required to be cancelled through the decree of a competent Court? 6. The brief facts of the case are that Rahamat Ullah husband of Smt. Fatima Bibi defendant third set and father of Gulam Rasool and three others - defendant second set was owner of the house in dispute. He executed a usufructury mortgage on 5.1.1922 in favour of Noor Mohd. In the year 1963 (when Rahmatullah had died) Smt. Fatima Bibi, her sons and daughters filed suit for redemption (Original Suit No. 313 of 1963) which was decreed on 30.5.1965. However, during the pendency of the said suit Smt. Fatima Bibi sold the property/mortgagors right to the appellant Smt. Kaneeza Kahtoon through registered deed dated 22.9.1964 of her own share in the house in dispute and of the share of her minor children acting as their guardian. There is no dispute that the share of Smt. Fatima Bibi, wife of original owner/mortgagor Rahmat Ullah was 1/8 in the house in dispute. 7. Even though subsequently Smt. Kaneeza Khatoon-appellant took up the case that Rehmat Ullah during his life time had executed an agreement for sale of the same property in her favour in the year 1954, however, neither the said agreement for sale was produced nor any mention was made of the said agreement in the sale-deed dated 22.9.1964. 8. After becoming major, sons and daughters of Rahmat Ullah and Smt. Fatima Bibi sold their 14/16 share in the house in dispute to Mohd. Mustafa predecessor-in-interest of the plaintiffs through three sale-deeds dated 25.4.1967, 5.2.1971 and 13.12.1971. 8. After becoming major, sons and daughters of Rahmat Ullah and Smt. Fatima Bibi sold their 14/16 share in the house in dispute to Mohd. Mustafa predecessor-in-interest of the plaintiffs through three sale-deeds dated 25.4.1967, 5.2.1971 and 13.12.1971. Obviously this led to clash of interest between appellant and plaintiffs as 14/16 share of sons and daughters of Rahmatullah and Fatima Bibi was sold to both, to Smt. Kaneeza Khatoon on 22.9.1964 and to Mohd. Mustaffa in the year 1967 and 1971. Substantial Question of Law No. 1 : 8. Miscellaneous case No. 38 of 1972 was decided on 2.9.1972 by Munsif Mohamdabad Gohna, Azamgarh (Kaniz Khatoon v. Deen Mohd.). In the said order it is mentioned that Smt. Kaneeza Khatoon after purchasing the property from Smt. Fatima Bibi on 22.9.1964 deposited the mortgage money pursuant to preliminary decree dated 3.6.1965 passed in the redemption suit (Original Suit No. 313 of 1963) instituted by Smt. Fatima Bibi and her four minor children. After depositing the mortgage money Smt. Kaneeza Khatoon applied for preparation of final decree in her favour. The Munsif on 14.1.1967 passed an order in Misc. case No. 102 of 1966 to the effect that the final decree shall be prepared in the name of the original plaintiffs and Smt. Kaneeza Khatoon. In appeal against the preliminary decree decided on 9.5.1967 some additional amount was directed to be paid to the defendants as interest. The said amount was also deposited by Smt. Kaneeza Khatoon. Mohd. Mustaffa also filed an application that through three sale-deeds of 1967 and 1971 he had purchased 14/16 share from the children of Smt. Fatima Bibi after they became major hence decree in respect of 14/16 share must be prepared in his name. Through order dated 2.9.1972 the application of Mohd. Mustaffa was rejected on the ground that the entire amount had been deposited by Smt. Kaneeza Khatoon and that there was an earlier order of 14.1.1967 for preparation of final decree in the name of Smt. Kaneeza Khatoon. However, in the order dated 2.9.1972 it was specifically held that “if Shri Mohd. Through order dated 2.9.1972 the application of Mohd. Mustaffa was rejected on the ground that the entire amount had been deposited by Smt. Kaneeza Khatoon and that there was an earlier order of 14.1.1967 for preparation of final decree in the name of Smt. Kaneeza Khatoon. However, in the order dated 2.9.1972 it was specifically held that “if Shri Mohd. Mustaffa has any right in the property in suit, he may get it adjudicated by filing a regular suit.” Through order dated 2.9.1972 the Munsif modified its earlier order dated 14.1.1967 and directed that in terms of the order of the Appellate Court decree shall be prepared in the name of Smt. Kaneeza Khatoon. Ultimately applications of Mohd. Mustaffa paper No. 9 C-2 and 11 C-2 were rejected. 9. As in the order dated 2.9.1972 permission had been granted to Mohd. Mustafa to file separate suit, hence the said order or order of any other suit will not operate as res-judicata for the subsequent suit i.e. the suit giving rise to the instant second appeal. Accordingly, first substantial question of law is decided against the appellant. Substantial Questions of Law Nos. 2 and 3 : 10. Original Suit No. 5 of 1971 was filed by Mohd. Mustafa, predecessor-in-interest of the plaintiffs of the suit giving rise to the instant second appeal for permanent prohibitory injunction. It was dismissed on 2.5.1971 in the absence of plaintiff but in the presence of defendants. However, it will not have the effect of precluding the plaintiff from bringing a fresh suit under Order IX Rules 8 and 9, C.P.C. as the subsequent suit (giving rise to the instant second appeal) was not in respect of the same cause of action. In view of order dated 2.9.1972, suit for injunction was meaningless, not maintainable and liable to be dismissed. The instant suit being for separation of 14/16 share was decreed by granting liberty to the plaintiff to file separate suit for redemption of their 14/16 share. Suit for injunction against co-sharers is not maintainable. Similarly, right to file suit for redemption of a share in the mortgaged property is not affected by dismissal of the suit for permanent prohibitory injunction. No injunction could be granted until redemption. 11. Suit for injunction against co-sharers is not maintainable. Similarly, right to file suit for redemption of a share in the mortgaged property is not affected by dismissal of the suit for permanent prohibitory injunction. No injunction could be granted until redemption. 11. As far as filing of written statement on 19.1.1971 in the said suit is concerned, the fact that one of the sons of Smt. Fatima Bibi had filed written statement in the suit of 1971 was denied by him in the suit giving rise to the instant second appeal. 12. Moreover, these points were covered by Issues Nos. 3, 5 and 6. In the judgment of the trial Court, it is specifically mentioned that these issues were not pressed by the learned counsel for the defendants. Before the lower appellate Court also no arguments in respect of these issues/points were raised. Accordingly, these substantial questions of law are decided against the appellant. Substantial Question of Law No. 5 : 13. As far as question of sale of her minor children by widow is concerned, the Supreme Court in Mahboob Sahab v. Syed Ismail and others, AIR 1995 SC 1205 and Meethiyan Sidhiqu v. Muhammed Kunju Pareeth Kutty and others, AIR 1996 SC 1003 , has held that under Muslim Law after death of father, mother is not the guardian of the property of her minor sons. The last sentence of Para-5 of the first authority (of 1995) is quoted below: “Equally, in Mohammadan Law mother cannot act nor be appointed as property guardian of the minor. She equally cannot act as legal guardian.” Paras-5 to 10 of the second authority (of 1996) are quoted below: “5. Mulla’s “Principle of the Mohammadan Law” (Nineteenth Edition) by Justice M. Hidayatullah, former Chief Justice of this Court and Arshad Hidayatullah, deals with legal property guardians of a Muslim minor in Section 359. In the order, only father, executor appointed by the father’s Will, father’s father and the executor appointed by the Will of the father’s father, are legal guardians of property. In the order, only father, executor appointed by the father’s Will, father’s father and the executor appointed by the Will of the father’s father, are legal guardians of property. No other relation is entitled to be the guardian of the property of a minor as of right; not even the mother, brother or uncle but the father or the paternal grand-father of the minor may appoint the mother, brother of uncle or any other person as his executor or executrix of his Will in which case they become legal guardian and have all the powers of the legal guardian as defined in Sections 362 and 366 of the above Principles. The Court may also appoint any one of them as guardian of the property of the minor in which case they will have all the powers of a guardian appointed by the Court, as stated in Sections 363 to 367. 6. In Section 360, it is stated that in default of the legal guardians mentioned in Section 359, the duty of appointing the guardian for the protection and preservation of the minor’s property falls on the Judge as representing the State. The Court may appoint any other person as guardian of the property of the minor. In so doing, the Court should be guided by all the powers in the circumstances to be for the welfare of the minor. The Court may appoint mother as guardian of the property of the minor son in preference to his paternal uncle. The fact that the mother is a pardanashin lady is no objection to her appointment. In Section 362, the legal guardian of the property of a minor has no power to sell the immovable property of the minor except in the cases (1) where he can obtain double its value; (2) where the minor has no other property and the sale is necessary for his maintenance; (3) where there are debts of the deceased, and no other means of paying them; (4) where there are legacies to be paid, and no other means of paying them; (5) where the expenses exceed the income of the property; (6) where the property is falling into decay; (7) when the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution. 7. 7. In Imambandi v. Mutsaddi, (1918) 45 Ind App 73 : (AIR 1918 PC 11), the Judicial Committee envisaged the grounds on which and the circumstances in which the property of a minor could be alienated by legal guardian. 8. Tyabji in his “Principles of Mohammadan Law” also has stated in Section 261 that neither mother, nor brother, nor the uncle can without the authority of the Court deal with the property of a minor. Asaf A.A. Fyzee in Section 34 has reiterated the same principles. In Venkama Naidu v. S.V. Chistry, AIR 1951 Madras 399, the Madras High Court had held that after the father’s death, the mother, as the guardian of the minor, has no power to execute a sale-deed. Therefore, the sale-deed executed by the mother was held to be void and inoperative under Mohammedan law. 9. In Mumammadan Law by Syed Ameer Ali (Vol. 2) also it is stated at page 500 that unless mother is appointed by the father as the guardian of his minor children’s estate or is so appointed by the Judge, she has no power to intermeddle with their immovable property. All her dealings with the property are ipso facto void. In case minor has no means of support except the property, she must apply to the Court for sanction in order to deal with the property. 10. Father is the natural guardian and in his absence other legal guardians would be entitled to act. In their absence, property guardian appointed by the competent Court would be competent to alienate property of the minor with the permission of the Court. When a sale is to be made on behalf of the minor the necessary ingredients are that the sale must be for the benefit of the estate of minor and, therefore, the competent person entitled to alienate the minor’s property would be, subject to the above condition, either the natural guardian or the property guardian appointed by the Court. In this Case after the demise of the father no property guardian was appointed. The mother, therefore, is not guardian for the alienation of the property of the minor. The sale made by the mother therefore, is void.” 14. In view of the above, the sale-deed by mother Musammat Fatima Bibi of the 14/16 share of her minor children was void and not voidable. The mother, therefore, is not guardian for the alienation of the property of the minor. The sale made by the mother therefore, is void.” 14. In view of the above, the sale-deed by mother Musammat Fatima Bibi of the 14/16 share of her minor children was void and not voidable. A void document can be avoided even if the same is not cancelled. Accordingly, substantial question of law No. 5 is decided against the appellant. Substantial Question of Law No. 4 : 15. In view of the above finding on substantial question of law No. 5, no occasion arises for considering the question of application or mis-application of Section 29 of Guardians and Wards Act, which is first part of substantial question of law No. 4. As far as applicability of Sections 35, 60 and 95 of Transfer of Property Act, covered by the second part of substantial question of law No. 4 is concerned, it has to be decided in favour of the appellant. Section 35 of Transfer of Property Act is quoted below: “35. Election when necessary.—Where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of, subject nevertheless, where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer, and in all cases where the transfer is for consideration, to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.” 16. The mother sold the property and received the sale consideration for the entire property. The said amount must have been spent by her mainly on her minor children. The sale is not binding upon the minor children but they are duty bound to return the amount to the purchaser appellant. 17. In this regard reference may also be made to Section 65 of Contract Act which is quoted below: “65. The said amount must have been spent by her mainly on her minor children. The sale is not binding upon the minor children but they are duty bound to return the amount to the purchaser appellant. 17. In this regard reference may also be made to Section 65 of Contract Act which is quoted below: “65. Obligation of person who has received advantage under void agreement, or contract that becomes void.—When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.” 18. Accordingly, judgment and decree passed by the Courts below are substantially affirmed however they are varied to the extent that contesting respondents are directed to return 14/16 part of the sale consideration paid under sale-deed dated 22.9.1964 to the appellant alongwith 10% per year interest till the date of actual payment. 19. Second Appeal is disposed of accordingly. ——————