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2016 DIGILAW 2979 (MAD)

Ansari v. Syed Nizar

2016-08-23

R.MALA

body2016
JUDGMENT : The appellants/Defendants 1 and 2, who lost the legal battle before both the Courts below have come forward with this Second Appeal against the Judgment and Decree dated 21.10.2008 made in A.S.No.3 of 2007 on the file of the Principal District Court, Ramanathapuram, confirming the Judgment and Decree dated 23.06.2006 made in O.S.No.67 of 2004, on the file of the Subordinate Court, Ramanathapuram. 2. Heard the learned counsel for the appellants and perused the materials available on record. 3. The first respondent as plaintiff filed a suit for partition and separate possession of his 7/20 share in the property stating that the property has been owned by one Naina Mohammed. He had two wives. He settled this property to his second wife Sariba Ammal and she died. Sariba had four children viz., Ansari, Sahubr Ali, Hajara and Karim. That Karim died intestate without marriage. Her daughter Hajara died and her only son is the second defendant. Sahurbar Ali died and his wife is the third defendant and his son is the plaintiff who filed the suit for partition and separate possession. 4. Resisting the same, the first defendant filed a written statement by stating that he admitted the relationship of the parties and also the shares. However, he has stated that on the date of death of Sahurbar Ali, his wife/third defendant has relinquished her right in the property and received the amount and that matter has been referred in Jamath, where she also accepted the receipt of the amount in view of her share in the property. The amount has been fixed at Rs.17,000/- and it has been enhanced to Rs.20,000/- and Rs.10,000/- has been received by the third defendant and gave a letter and that amount has been used for plaintiff's maintenance. Whenever the first defendant demanded for execution of release deed, they did not execute the release deed and filed the suit. Hence, he prayed for dismissal of the suit. The second defendant has also adopted the written statement filed by the first defendant. 5. The trial Court, after considering the averments in the plaint and written statement, framed issues and after considering the oral and documentary evidences, decreed the suit by stating that the mother could not be acted as guardian for minor. The suit is not barred by time. After he became major, within three years, he filed the suit. 5. The trial Court, after considering the averments in the plaint and written statement, framed issues and after considering the oral and documentary evidences, decreed the suit by stating that the mother could not be acted as guardian for minor. The suit is not barred by time. After he became major, within three years, he filed the suit. Against which the defendants filed an appeal and the first appeal is also dismissed by the first appellate Court by stating that the mother is not a competent person to act as guardian. It is also stated that she has not obtained any permission to deal with the property by Court of law and on that basis, the appeal has been dismissed. Against which, the defendants have preferred this Second Appeal. 6. The learned Counsel appearing for the appellants would submit that the amount has been given, as per Section 53-A of the Transfer of Property Act and as part performance, the property has been given. Hence, that has to be decided. 7. But the above argument advanced by the learned Counsel appearing for the appellants does not hold good, because here it is not a case that the first respondent/plaintiff has entered into a contract of sale or sale agreement. Because, as per the averments made in the written statement, the mother/third defendant has only acted as guardian for the minor plaintiff and received that amount. As per Mahomedan Law, the female cannot act as guardian for minor and what are the acts done by the female as guardian for minor, are not bind the minor. Hence, the argument advanced by the learned Counsel appearing for the appellants by relying upon Section 53-A of the Transfer of Property Act does not hold good. 8. The second argument advanced by the learned Counsel for the appellants is that once the agreement entered by the guardian of the minor is turned out as void document, as per Sections 64 and 65 of the Indian Contract Act, they are entitled to get their refund of amount paid. 9. But admittedly, that contract has not been entered into by the plaintiff and it is only by his mother. At this juncture, it is appropriate to incorporate Sections 64 and 65 of the Indian Contract Act, which is as follows: 64. 9. But admittedly, that contract has not been entered into by the plaintiff and it is only by his mother. At this juncture, it is appropriate to incorporate Sections 64 and 65 of the Indian Contract Act, which is as follows: 64. Consequences of rescission of voidable contract: When a person at whose option a contract is voidable rescinds it, the other party thereto need not perform any promise therein contained in which he is promisor. The party rescinding a voidable contract shall, if he has received any benefit thereunder from another party to such contract, restore such benefit, so far as may be, to the person from whom it was received. 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. 10. The learned Counsel appearing for the appellants would rely upon a decision in Khiaru Vs. Dheru and Others reported in AIR 1927 Lahore 722, wherein it was held that transfer of minor's property by a person not duly appointed as guardian is void ab initio but minor must under Section 64 and 65, restore any advantage received under it or make compensation for such advantage. 11. But the above citation is not applicable to the present case, because it is not a case that under the Mahomedan Law, the mother is not a competent person to act as guardian. Furthermore, there is no contract entered between them. There is no evidence to show that the amount received from the first defendant/appellant is used for the welfare of the minor. In such circumstances I am of the view that the above citation is not applicable to the facts of the present case. 12. The learned Counsel for the appellants would also rely upon a decision in Pramada Prasad Mukherjee Vs. In such circumstances I am of the view that the above citation is not applicable to the facts of the present case. 12. The learned Counsel for the appellants would also rely upon a decision in Pramada Prasad Mukherjee Vs. Sagarmal Agarwalla and Others reported in AIR 1954 Patna 439, wherein it was held that even if the defendant has not set up the plea, the Court before making an order for rescission of the contract on the ground of fraud, must make an order that the opposite party should restore the benefit he has received under the contract. 13. But here, it is not a suit for specific performance filed by the appellants on the basis of the letter alleged to be given by the guardian of the minor. But, this is a simple suit for partition filed by one of the legal heirs of Sariba Ammal. In such circumstances, the trial Court and the first appellate Court have considered all these aspects and came to the correct conclusion. Hence, I am of the view that no question of law that too substantial question of law arisen for consideration in this second appeal and the second appeal is liable to be dismissed at the stage of admission. 14. Accordingly, this second appeal is dismissed in the admission stage itself. No costs. Consequently, the connected Miscellaneous Petition is also dismissed.