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2015 DIGILAW 49 (ORI)

Saukat Ara v. Nazir Mohammed

2015-01-22

D.DASH

body2015
JUDGMENT The unsuccessful plaintiffs have preferred this appeal against the judgment and decree passed in T.S. No.37 of 1985 by the Additional Subordinate Judge, Cuttack (as it was then). By the said judgment and decree the suit has been dismissed. 2. For the sake of convenience and to avoid confusion as well as to bring clarity, the parties hereinafter have been referred to as they have been arrayed in the Court below. 3.The plaintiffs case is that.- (A) One Roshan Mahammad was the owner of the property described in schedule-A of the plaint. Jamila Bibi, an illiterate paradanasini lady was aged about 26 years when Roshan Mahammad died and the plaintiffs were then aged about 3 and 1 year respectively. Jamala Bibi filed a title suit No.300 of 1969 for partition claiming share unto herself . and also on behalf of the plaintiffs who were the minors. The suit was filed against the Mahammadan Bibi and present defendant no. 1, who was then claiming to be the adopted son of Roshan Mohammad. The suit was decreed by the judgment dated 10.11.1970. The plaintiffs and their mother were allotted with 15/16 share; when Mohammadan Bibi, the step mother of plaintiffs was allotted 1/16 share in the properties of said Roshan Mohammad. The claim of the defendant no. 1 and that Mohammad was declined. (B) So, the First Appeal No.252 of 1970 was filed before this Court challenging the judgment and decree passed in Title Suit No.300 of 1969. The appeal is said to have been compromised. This is attacked on the ground of the plaintiff’s minority, their mother’s illiteracy being taken advantage of by the defendant No.1 and Mohammadan Bibi in getting that appeal compromised. As per the said compromise plaintiffs and their mother are to get 8 annas whereas Mohammadan Bibi is to get 8 annas in most of the properties. The plaintiffs were deprived of their rights over the property described in lot no. 1, 9 and 10 of the plaint. They were also deprived of the mesne profit, movables and were further made liable to pay the amount to the receiver. According to the case of the plaintiffs, the said compromise was wholly unjust, unconscionable and not for their benefits. Mother of the plaintiffs was forced to enter into compromise under the threat of prolonged litigations. They were also deprived of the mesne profit, movables and were further made liable to pay the amount to the receiver. According to the case of the plaintiffs, the said compromise was wholly unjust, unconscionable and not for their benefits. Mother of the plaintiffs was forced to enter into compromise under the threat of prolonged litigations. It is stated that after the compromise decree passed in the First Appeal, the plaintiff’s mother was gained over by the defendants and all her properties were alienated for nominal consideration. It is further stated that neither Jamila Bibi was the legal guardian of the plaintiffs nor she had been appointed under the Guardians and Wards Act. Thus she had no right to enter into the compromise on behalf of the minor plaintiffs who are also the plaintiffs here nor to alienate their properties (C) With the above pleadings, the suit has been filed for the following reliefs:- (i)for declaration that the compromise decree passed in F.A. No.252 of 2000 is not binding on the plaintiffs; (ii) for declarations that the alienations by the plaintiffs mother late Jamila Bibi in favour of defendant nos.3 to 15 and / or their predecessor-in-interest are void; (iii)for recovery of possession of properties allotted to their share and their mother’s share in T.S. No.300 of 1969 in lot nos. 1 to 10 of schedule-A; 15/16th share in lot no.11 of schedule-A and 15/16th share of 1/3rd of lot nos. 12. 13 and 14 of sechedule-A. 4. The defendant no. 1 in the written statement has taken a plea that the suit is hit by res judicata, the suit properties having been described without identification, it’s vague. It has been asserted that in the compromise in the First Appeal between the parties there was no pressure from any quarter and that the alienations are all for valuable consideration. 5. The defendant Nos.3 and 4 in their written statement while traversing the plaint averments have taken specific plea that Roshan Mohammad had lost title in respect of land in lot no.12. land under Plot No.611 and 614 of lot no.5 and lot no.13 of schedule-A. The compromise has been found by the appellate Court to be lawful and beneficial to the minors. It is further stated that the compromise appears to have been made to adjust some of the transfers made by Roshan Mohammad. land under Plot No.611 and 614 of lot no.5 and lot no.13 of schedule-A. The compromise has been found by the appellate Court to be lawful and beneficial to the minors. It is further stated that the compromise appears to have been made to adjust some of the transfers made by Roshan Mohammad. According to them, the compromise was for the benefit of the minors and the Hon’ble Court having so found and having gone to record it in finally disposing the first appeal in terms of compromise, the same is not liable to be reopened. It is further stated that first three plots in schedule-B were joint properties of Lal Mohammad, Roshan Mohammad and Altaf Mohammad, wherein all had 8 annas share. Defendant nos.3 and 4 had 1/3 share and they got the share of Mohamaddan Bibi by deed of relinquishment dtd.07.12.1973 and as such having remained in possession over the same for all these period have perfected their title by way of adverse possession including against that Roshan Mohammad. Next it is pleaded that that deed of relinquishment by Jamila Bibi was executed on 26.11.1973 and the guardianship of Jamila Bibi was approved by the Court. There was an execution proceeding, i.e., Execution Case No.490/737 in pursuance to the decree wherein Plot No.611, 614 were included. Defendant nos.3 and 4 had filed Misc. Case No.50/295 of 1973 under Order 21, Rule 58, C.P.C. An agreement was entered into between the parties on 19.04.1974 and the properties were ultimately released from attachment. Properties under lot no.13 was gifted (oral Hibba) to Altaf Mahammad just after purchase by three brothers. 6.Defendant no.2 has adopted the written statement of defendant nos.3 and 4 in its entirety. Next written statement is that of defendant no.19. According to him, the appeal was validly compromised and plaintiff's mother had filed the affidavit to that effect on 14.02.1972. It is she who took initiative to effect partition in metes and bounds. It is his further case that from compromise it appears that some properties were left out but there was partition subsequently. It is stated that Plot No.574 was not the subject matter of the previous suit. However, it is admitted that as per the decree each party is entitled to 8 annas share. So, Mohammadan Bibi sold her half share in plot no.574 to the mother of the plaintiffs. It is stated that Plot No.574 was not the subject matter of the previous suit. However, it is admitted that as per the decree each party is entitled to 8 annas share. So, Mohammadan Bibi sold her half share in plot no.574 to the mother of the plaintiffs. On 16.11.1973 plaintiff's mother sold a portion of the said plot to defendant no.19 for valuable consideration and then defendant no.19 .made the construction work. According to his case, the sale deed was duly executed and alienation is valid. 7.With the rival pleadings, the trial Court framed the following issues: (i) Is the suit maintainable? (ii) Is there any case of action? (iii) Is the suit barred by the law of limitation? (iv) Whether required Court-fees on the plaint is paid by the plaintiffs? (v) Whether the compromise decree passed in First Appeal No.252/1970 of the Hon’ble High Court of Orissa is binding on the plaintiffs? (vi) Whether the sale deeds executed by Jamila Bibi are valid? (vii) Whether the suit suffers from non-joinder of parties? (viii) Have the plaintiffs any subsisting right on the land described in lot no.12 of schedule ‘A’ and plot nos. 611 and 614 of lot no.5 of schedule ‘A’ and lot no.13 of schedule ‘A? (ix) Are the plaintiffs entitled for any relief? 8. The trial Court on the above rival pleadings appears to have rightly taken up issue nos.(V) and (VI) first for decision as the finding on those two issues practically has the final say. These issues have been answered against the plaintiffs holding that the compromise decree passed by this Court in F.A. No.252 of 1970 is bound to be accepted being beneficial to the plaintiffs, who were then minors, when there is absolutely no evidence that their mother was compelled to enter into the compromise. It is further held that the compromise decree in F.A. No.252 of 1970 of this Court is binding and thus cannot be avoided. Next issue no.(VIll) has accordingly been answered against the plaintiffs. The trial Court has also answered issue no. (IV) in favour of’ the plaintiffs and answers to the other issues have accordingly been followed. 9. It is further held that the compromise decree in F.A. No.252 of 1970 of this Court is binding and thus cannot be avoided. Next issue no.(VIll) has accordingly been answered against the plaintiffs. The trial Court has also answered issue no. (IV) in favour of’ the plaintiffs and answers to the other issues have accordingly been followed. 9. Learned counsel for the appellant (plaintiffs) submits that the trial Court has erred both in fact and law in arriving at a conclusion that the compromise was valid and binding and it was so entered into by Late Jamila Bibi voluntarily with her free consent and will. It is next submitted that the view of the trial Court is completely erroneous when it has said that the plaintiffs are estopped to challenge the said compromise and as such the same is binding on them for all purposes. According to him, the trial Court has been swayed away simply on account of the fact that the compromise decree having been passed by the High Court in a First Appeal as if it was not permitted to be reopened on any ground, whatsoever, and called in question in any suit so as to form the, su bject matter of the dispute to be adjudicated upon by the subordinate Court. It is also his submission that the finding of the trial Court is completely wrong in respect of issue no. (VIII) that the plaintiffs cannot claim their subsisting right over the land as they do not have it. His main thrust of argument is that .Jamila Bibi was not the legal guardian of the minors and she was merely a de facto guardian and she filed the suit as next friend on behalf of the minors. So, she had absolutely no authority to enter into any compromise and, therefore, the same has no value in the eye of law. It is also contended that when the compromise on the face of it has caused deprivation to the minors so as to the extent of properties are concerned, and when nothing is shown as to whether the same was beneficial for the minors, which is a must, and in the absence of the same, the compromise, according to him, ought to be held to be not binding on the plaintiffs. His entire submission centers round the challenge to the said compromise on the ground of lack of authority of mother of the wards. 10.Learned counsel for the respondent (defendants) in. response submits that in the First Appeal No.252 of 1990, the Deputy Registrar, High Court was appointed as the guardian of the minor respondent nos.2 and 3 and he was a de facto guardian, who has no power to convey to another any right or interest in immovable properties except with the prior permission of the Court in compliance of Article 363 of the Mohammedan Law. He also submits that the mother under the Mohammedan Law is not the legal guardian of the minor and cannot transfer the share of her minor children in the property inherited by them from their deceased father unless is appointed by the Court to do so. So, in the present case for entering into the compromise, mother had sought for permission of the Court and the Court having gone through the terms and conditions of the compromise, concluding it to be beneficial for the minors has granted permission for entering into the compromise. Thus, according to him, the mother has neither acted as natural guardian nor legal guardian to deal with the property of her minor children inherited by them from their deceased father but it was so done with the permission of the Court. Therefore, according to him, the mother cannot be said to be incompetent to compromise or to have no authority in that regard. So, he submits that when compromise has been made with the permission of the Court and also in compliance with the provision of Article 363 of the Mohammedan Law, the same is no more open to challenge and the appellants are estopped to do so. It is next contended that the plea of fraud raised by the plaintiff has not been established and further the compromise has been accepted to be beneficial in the interest of the minors and in lieu of adjustment of shares there has been payment of a sum of Rs.12,000/ - which was then quite substantial amount. In view of the above, he contends that the appellants cannot turn back to say the compromise as unlawful on any ground, whatsoever. 11.On the above rival submission in order to judge the defensibility of the finding on issue Nos. In view of the above, he contends that the appellants cannot turn back to say the compromise as unlawful on any ground, whatsoever. 11.On the above rival submission in order to judge the defensibility of the finding on issue Nos. (V) and (VI), which are challenged in this appeal, it may be first noted that it is the settled position and also is not disputed by the learned counsel for the parties that in Mohammedan Law, mother cannot act nor be appointed as the property guardian of the minor. Equally she cannot act as legal guardian. In this connection, reference need be made to the decision of the Hon’ble Apex Court in Mahboob Shab Vrs. Sahid Ismail and Ors. (1995) 3 S.C.C. 693 and also to the decision in the case of B.B. Abeda Khanul Vrs.M.D. Umar and Ors. Decided by the High Court of Patna in Second Appeal No.60 of 1996 on 15.07.2013 wherein it has been said that the mother of a Mohammedan minor son is not recognized as a guardian of the property of the minor. In such view of the matter, she will be nothing but de facto guardian and under Article 363 to Mohammedan Law, a de facto guardian has no power to transfer any right or interest in immovable properties of the minor. Reference in this case can be made to the case of Sambhu Gosai Vrs. Payri Miyan (28) A.I.R. 1945 Patna 351 in which it has been held that the mother of a minor is de facto guardian has no power to sell any immovable property belonging .to him and secondly the sale of his interest is absolutely void. 12.At this stage, it is the need to go through the decision cited by the learned counsel for the appellant in case of K.M. Ardhanari Mudaliar Vrs. AbdulRahinan and Ors.; (1956) M.L.J., 243. It has been held in Para-3 of the judgment that under Mohammedan law, the mother of minor children is not competent as their mother to refer to arbitration, dispute as to the distribution of the immovable property of the deceased father and the fact that the award has been acted upon for many years during the minority does not make it binding as a family arrangement. In the case the partition arrangement was acted upon for a long period. In the case the partition arrangement was acted upon for a long period. extending over fourteen years and the finding was that the partition was not in any event perverse, unfair or influenced by any corruption or misconduct of the arbitrators. But even then it was held that the award amounted to an alienation of the plaintiff’s share in the property, to which being infants, they could not consent and the mother who had no authority to act on their behalf was not competent to enter into arrangement and that although she was at the time of agreement the de facto guardian of the minor, she had no power to deal with the property and consequently she had no authority to enter on their behalf into the agreement to refer the disputes to arbitration, which, if acted upon would necessarily affect the immovable property of infant plaintiffs. 13.Learned counsel for the respondent in this matter submits that in the instant case the facts are completely different that the mother of the plaintiffs has never alienated any property of the minors or their share over the properties that they succeeded. But here the compromise has been effected in a pending appeal in the High Court. Referring to the very decision in case of Mehabub Shah (supra) at Para-6, he submits that in the said case it has been said that the Court as guardian has no power to mortgage or charge or transfer by sale, gift, exchange or otherwise and part with the possession of the immovable property of the ward or to lease that property except that the previous permission of the Court and subject to the conditions mentioned in Article 363 of the Mohammedan Law. Thus, he submits that here is a case where it was with the prior permission of the Court and also subject to the conditions mentioned in Article 363 of the Act. He has also placed a decision in the case of Ayderman Kutti (son of Thandan...) Vrs. Sayed. Ali (son of Kotuseri Valappil...) (1914) I.L.R. 37 (Madras) 514. In the said case the question was whether the sale of minors property by his mother acting as de facto guardian is valid under the Mohammedan Law and if so under what conditions. In the said case two earlier decisions of Privy Council in case of Kali Butt Jha Vrs. Ali (son of Kotuseri Valappil...) (1914) I.L.R. 37 (Madras) 514. In the said case the question was whether the sale of minors property by his mother acting as de facto guardian is valid under the Mohammedan Law and if so under what conditions. In the said case two earlier decisions of Privy Council in case of Kali Butt Jha Vrs. Abdul All, (1889) I.L.R. 16 Calcutta 627 (P.C.) and Mata Din Vrs. Sheikh Ahmad All (1912) MWN 183 (P.C.) have been.referred to and said that the first one was a case of a guardian and with respect to his power wherein the transaction has been upheld on the ground that there was dispute as to the title of the minor to the property and also on the ground that the sale was for benefit of the minor. So the rule laid down in Macnaughten’s did not apply. In the latter case the sale was affected by the minor’s mother who had custody of the minors person and was in possession of his property and in order to pay certain debts binding on the minor it was held that a person by de facto guardianship may assume important responsibilities towards the minor though he cannot clothe himself with the legal power to deal with the estate. So, the sale was declared to be not binding although it was made for payment of an ancestral debt as it was not made of necessity nor was beneficial to the minor, inasmuch as, the facts of the case that the sale of the property was unnecessary. Further in that case it has been held as under:- “it seems to us to be quite clear from the authoritative pronouncement of Muhammedan jurists as well as upon the. Principles of Muhammedan jurisprudence that while the general rule is that the dealings by such a person do not ip so facto bind the minors estate, the law recognizes certain exceptions to this rule. It has further been said referring to Majuna-Ul-Auhar which is a Commentary of Mooltakan-I-Abhar that according to the Ashshafei and Malik, the de facto guardian can buy or sell for the minor only with the permission of the Judge. It has further been said referring to Majuna-Ul-Auhar which is a Commentary of Mooltakan-I-Abhar that according to the Ashshafei and Malik, the de facto guardian can buy or sell for the minor only with the permission of the Judge. In view of above when it is not a case of a sale by guardian of immovable property of his ward and is a case of compromise entered into on behalf of the minors with the permission of the Court being appointed as guardian of the minors for the purpose as per rule, the submission of learned counsel for the respondents is found to be having the force. 14. Admittedly, in the case in hand the mother has entered into compromise on behalf of the minors in F.A. No.252 of 1970 arising out of T.S. No.300 of 1969. It is also the case that by the judgment dated 10.11.1970 in the said suit, the plaintiffs with their mother got allotted 15/16th share in the properties of Roshan Mahammad whereas Mohammadan Bibi was allotted with 1/16th share in the said properties and as per the compromise in the First Appeal the plaintiffs and their mother are said to have been given 8 annas and Mohammadan Bibi has been given 8 annas in most of the properties and the plaintiffs have thus claimed and been deprived of the rights over the properties in lot 1, 9 and 10 of the plaint. It has to be kept in mind that in the Title Suit No.300 / 1969 the plaintiffs were represented by their next friend mother all through and that was decreed on 10.11.1970. So, First Appeal No.252 of 1970 was carried out where the compromise .was effected. In the said appeal initially the Deputy Registrar of the Court was appointed as the guardian of the minor respondent nos.2 and 3. At this juncture, let me refer to the provision of Order 32 Rule 5 of the C.P.C., which lays down the procedure that when the- defendant is a minor the Court on being satisfied of the fact of his minority, shall appoint a proper person to be the guardian for the suit for the said minor. At this juncture, let me refer to the provision of Order 32 Rule 5 of the C.P.C., which lays down the procedure that when the- defendant is a minor the Court on being satisfied of the fact of his minority, shall appoint a proper person to be the guardian for the suit for the said minor. Rule 7 of the said order also refers to the agreement or the compromise by the guardian for the suit that it is permissible on behalf of the minor and it should be with the leave of the Court on an application being made in that behalf under a certificate that the same is for the benefit of the minor and that also does not preclude the Court from examining whether the agreement or compromise proposed is for the benefit of the minor and most importantly Sub-rule 2 provides that any such agreement or compromise entered into without leave of the Court so recorded shall be voidable against all parties other than the minor. So, here the mother can not be said to have acted as the natural guardian nor the legal guardian to deal with the property of her minor children inherited from their deceased father. But, it is with the leave of the Court that she has entered into a compromise and the Court has found the compromise to be beneficial and in the interest of the minor as averred in the petition for compromise. The Court has also accepted the representation of the minors and granted permission to receive money and relinquish the property. The compromise having been made lessening the quantum of property originally allotted in the decree under challenge also appear to be with definite consideration by way of payment of money and thus per se does not appear to be unconscionable. The said compromise is also is incompliance to the Article 363 of the Mohammedan Law. The plea of fraud raised by plaintiffs has not been established and the compromise has been accepted to be beneficial and in the interest of minors while disposing the First Appeal. Therefore, the submission of the learned counsel for the appellant is not acceptable and this Court holds that the said compromise decree passed by this Court in First Appeal No. 252 of 1970 is no more open to challenge and the plaintiffs are estopped from doing so. Therefore, the submission of the learned counsel for the appellant is not acceptable and this Court holds that the said compromise decree passed by this Court in First Appeal No. 252 of 1970 is no more open to challenge and the plaintiffs are estopped from doing so. The answers to the other issues are dependant on this. The learned counsel for the parties having concentrated during hearing only on the above issues, there arises no necessity to further delve into those. In view of aforesaid, the judgment and decree assailed in this appeal thus stand confirmed. 15.In the result the appeal stands dismissing and in the circumstances without cost throughout. Appeal dismissed.