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2024 DIGILAW 753 (JHR)

Gunja Devi v. Md. Hafiz, s/o Rahim Mian

2024-08-20

ANIL KUMAR CHOUDHARY

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JUDGMENT : Anil Kumar Choudhary, J. Heard the parties. 2. No one turns up on behalf of the respondent in-spite of repeated calls. Hence, this appeal is heard ex-parte. 3. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree of affirmance dated 18.10.2004 passed by the learned District Judge, Chatra in Title Appeal No. 20 of 2003 whereby and where under, the learned first appellate court has confirmed the judgment and decree passed by the trial court being the Munsif, Chatra dated 29.08.2003 in Title Suit No. 22 of 1995 whereby and where under, the learned Munsif decreed the suit of the plaintiff and ordered that the sale deed nos. 3953/1974 and 3954/1974 executed in favour of Tekni Gowalin are declared as null and void and not binding upon the plaintiff and also declared that Karim Mian was not guardian of the plaintiff and his two sisters and decreed the suit to the aforesaid extent. 4. The brief fact of the case is that the plaintiff filed Title Suit No. 22 of 1995 in the court of Munsif, Chatra with the aforesaid prayer. 5 The case of the plaintiff in brief is that the suit was recorded during the cadastral survey as bakast in the name of Shaikh Iddu and others who were the khewatdars. The khewatdar Iddu Mian and others made settlement of the land and after several settlement and purchases ultimately the suit property devolved upon the plaintiff and her mother Amna Khatoon being the exclusive surviving owners in possession over the land left by Rahim Mian. In October, 1995 the defendants began claiming the suit land as purchased land of Karim Mian. The plaintiff enquired the matter and learnt that two sale deeds bearing nos. 3953/74 and 3954/74 both dated 31.07.1974 were executed by Karim Mian son of Iddu Mian for self and falsely impersonating himself as guardian of the plaintiff and his two minor sisters in favour of Massomat Tekani Gowalin-the mother of the defendants, which is the schedule A property of the plaint. 3953/74 and 3954/74 both dated 31.07.1974 were executed by Karim Mian son of Iddu Mian for self and falsely impersonating himself as guardian of the plaintiff and his two minor sisters in favour of Massomat Tekani Gowalin-the mother of the defendants, which is the schedule A property of the plaint. The plaintiff asserted that Karim Mian was not the guardian of the plaintiff or his sisters at any point of time, so he has no right to convey the suit land in favour of anyone so no right, title, interest or possession has accrued to the defendants by virtue of the said sale deed executed by Karim Mian in favour of Tekhani Gowalin. As cloud was cast upon the right, title and interest of the plaintiff, the plaintiff filed the suit with the aforesaid prayer. 6. In their written statement, the defendants challenged the maintainability of the suit on various technical grounds and pleaded that the plaintiff is not the only exclusive surviving owner of the land left by Bibi Kolsum. The defendants further pleaded that after remarriage of Amna Khatun with Jakir Mian after the death of her husband Rahim Mian who is the father of the plaintiff, the plaintiff and his sisters lived under the guardianship of Karim Mian. The members of Nagwan Mosque demanded money of mosque which was spent by Rahim Mian taking as loan in the saradh ceremony of Kolsum. Karim Mian executed two sale deeds himself as well as on behalf of the minor plaintiff and his two sisters as their guardian in favour of Tekni Gowalin after receiving full consideration money and the loan of the mosque was returned. Tekni Gowalin died leaving behind his two sons being the defendants who are in exclusive possession of the suit land. 7. On the basis of the rival pleading of the parties, the learned trial court framed the following seven issues which reads as under:- (I) Is the suit is maintainable in the present form? (II) Whether there is any cause of action for the suit? (III) Whether the suit is bad for law of limitation and adverse possession? (IV) Whether suit is barred by law of estoppel, waiver, acquiescence and specific relief Act? (V) Whether suit is bad for non-joinder of parties? (II) Whether there is any cause of action for the suit? (III) Whether the suit is bad for law of limitation and adverse possession? (IV) Whether suit is barred by law of estoppel, waiver, acquiescence and specific relief Act? (V) Whether suit is bad for non-joinder of parties? (VI) Whether Karim Mian had right to execute sale deed No. 3953/74 and 3954/74 for self and on behalf of others in favour of Most. Tekni Gwalin for repayment of loan and the said deeds are valid and binding on the plaintiff? (VII) Whether plaintiff is entitled for any other relief or reliefs under law? 8. In support of his case, the plaintiff examined altogether eight witnesses and proved the documents which have been marked Ext. 1 series and 2. On the other hand the defendants examined altogether eight witnesses and proved the documents which have been marked Ext. A series to D/1. 9. The learned trial court first took up the issue no. VI and after considering the evidence in the record came to the conclusion that Karim Mian had no right to execute the said two sale deeds in favour of Tekni Gowalin and in this respect the learned trial court relied upon the judgment of Hon’ble Supreme Court of India in the case of Md. Amin and Ors. vs. Wakil Ahmad reported in AIR 1952 SC 358 to the effect that in the Muhammadan Law a person who has charge of the person or property of a minor without being his legal guardian and who may be conveniently called de facto guardian, has no power to convey to another, any right or interest in immovable property and Karim Mian was neither the legal guardian nor was appointed guardian by the court. Learned trial court next took up issue no. III and after considering the materials in the record came to the conclusion that since the transfer of the property belonging to the plaintiff and his sisters having being made by Karim Mian, in capacity of guardian of the plaintiff which in fact, Karim Mian was not, so the transfer was void ab initio and decided the said issue in favour of the plaintiff. The learned trial court next took up issue no. V and held that the suit is maintainable because of the non-joinder of necessary parties being Amila Khatoon and Anjuma Khatoon the sisters of the plaintiff. The learned trial court next took up issue no. V and held that the suit is maintainable because of the non-joinder of necessary parties being Amila Khatoon and Anjuma Khatoon the sisters of the plaintiff. The learned trial court next took up issue no. IV and decided the same in favour of the plaintiff and against the defendants. Lastly the learned trial court took up issue nos. I, II and VII together and held that the plaintiff has got valid cause of action for the suit, suit is maintainable and the plaintiff is entitled to the relief for which the suit was filed and decreed the suit. 10. Being aggrieved by the judgment and decree passed by the learned trial court, the defendants filed Title Appeal No.20 of 2003 in the court of District Judge, Chatra which was ultimately heard and disposed of by the learned first appellate court by the impugned judgment and decree. 11. The learned first appellate court made independent appreciation of the evidence in the record and considered the undisputed fact of the parties that the plaintiff was minor at the time of execution of the sale deed marked Ext. B and B/1 by Karim Mian and Karim Mian was the uncle of the plaintiff and the two daughters of Rahim Mian i.e. the sisters of the plaintiff who laid no claim over the property nor joined hands in the suit. The learned first appellate court discussed the category of guardianship under the Muhammadan law and held that the Karim Mian was a de facto guardian and the learned first appellate court considered Section 364 of Muhammadan Law, to the effect that a de facto guardian has no power to transfer any right or interest of any immovable property of the minor and such transfer if made is void hence, arrived at the conclusion that the transfer made by Karim Mian is void. The learned first appellate court next considered that date of knowledge of the sale deed has been attributed to be 17.10.1995 in the plaint and the suit has been filed on 16.11.1995 so the suit having been filed within three years from the date of knowledge, the same is not barred by limitation and confirmed the judgment and decree passed by the trial court and dismissed the appeal. 12. 12. At the time of Admission of this appeal, the following substantial questions of law were framed by the predecessor Judge of this Court vide order dated 07.01.2010 :- (1.) Whether the plaintiff is entitled to the reliefs sought for in view of false pleading of majority in the year 1974 in view of Exhibit-C the panchnama? (2.) Whether the finding of learned court below that Exhibit B and B/1 are void ab-initio in view of Section 28 and 30 of Guardian and Wards Act, 1980 and Section -368 of Mulla’s Principles of Mohammedan Law and Chapter –VII (11) of Muslim Law of India by Dr. Tahir Mohmood and thereby erroneously decided all the issues in favour of plaintiff even ignoring pleading of parties? 13. Learned Senior Advocate appearing for the appellants submits that P.W.-1 being the plaintiff himself in paragraph no.6 of his cross-examination has admitted that on 31.07.1974 when the sale deeds were executed, the plaintiff was a major so it cannot be said that plaintiff was minor in the year 1974 hence, the plaintiff cannot take the plea that he was ignorant about the sale deeds having been executed on 31.07.1974. So far as the second substantial question of law is concerned, it is submitted by the learned Senior Advocate appearing for the appellants that Section 368 of Mulla’s Principles of Mohammedan Law vests the power with a de facto guardian to sell and pledge the goods and chattels of the minor in his charge for the minor’s imperative necessities such as food, clothing or nursing. It is then submitted that Section 28 of Guardian and Wards Act, 1980 deals with the power of testamentary guardian i.e. the guardian appointed by WILL or other instrument and envisages that power of testamentary guardian to mortgage or charge or transfer by sell, gift, exchange or otherwise of immovable property belonging to his ward is subject to any restriction which may be imposed by the instrument unless such testamentary guardian has been declared as a guardian under the provisions of the Guardian and Wards Act, 1890 and the court which made the declaration permits such testamentary guardian by an order in writing to the effect that notwithstanding a restriction to dispose of any immovable property specified in the order in the manner permitted by the order but Section 30 of the Guardian and Wards Act, 1890 provides that a disposal of immovable property by a guardian in contravention of Section 28 is voidable at the instance of any other person affected thereby hence, it is submitted by the learned counsel for the appellant that by no stretch of imagination it may be argued that the transfer made by the de facto guardian is void ab initio. Hence, it is submitted that the judgment and decree passed by both the courts below being not sustainable in law be set aside and the suit of the plaintiff be dismissed. 14. Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that nowhere in the pleading the plaintiff had mentioned that the plaintiff attained majority in the year 1974. True it is in paragraph no. 6 of his cross-examination as P.W.1 he has mentioned that by the date of execution of the sale deeds on 31.07.1974 he had attained the age of majority but it is the pleading of the defendants that the plaintiff attained majority sometime in or about 1980 i.e. long after execution of the said sale deeds. 6 of his cross-examination as P.W.1 he has mentioned that by the date of execution of the sale deeds on 31.07.1974 he had attained the age of majority but it is the pleading of the defendants that the plaintiff attained majority sometime in or about 1980 i.e. long after execution of the said sale deeds. Now coming to the facts of the case, since the undisputed case of both the parties is that Karim Mian who is the uncle of the plaintiff has executed the sale deeds, though he himself did not have any right, title or interest over the suit land and he even in the sale deeds concerned did not claim his any independent right of him having been transferred by him rather he has claimed himself to be a guardian of the plaintiff and his two sisters and in that capacity he has executed the sale deeds. Assuming that the plaintiff has attained majority on 31.07.1974 still Karim Mian did not have any right to transfer the property of the plaintiff who had attained majority. Because, once a person attains majority unless he is of unsound mind or for some other valid reason, about which there is no pleading by either of the parties, nobody can act as a guardian. So either way; in the first case, if it is considered that the plaintiff attained majority on 31.07.1974 still Karim Mian had no right to transfer the property of the plaintiff as his guardian and in the second case, if it is considered that the plaintiff was minor on 31.07.1974; still Karim Mian being the de facto guardian was certainly not having the power to alienate the immovable property of the minor, in view of the specific bar to the same under Section 364 of Mulla’s Principles of Mohammedan Law. 15. Under such circumstances this Court is of the considered view that firstly the plaintiff has not made any pleading of majority in the year 1974 and otherwise also the plaintiff is entitled to the relief sought for. In view of the discussions made above, the first substantial question of law is answered accordingly. 16. 15. Under such circumstances this Court is of the considered view that firstly the plaintiff has not made any pleading of majority in the year 1974 and otherwise also the plaintiff is entitled to the relief sought for. In view of the discussions made above, the first substantial question of law is answered accordingly. 16. So far as the second substantial question of law as to whether the finding of learned court below that Exhibit B and B/1 are void ab-initio in view of Section 28 and 30 of Guardian and Wards Act, 1980 and Section -368 of Mulla’s Principles of Mohammedan Law and Chapter –VII (11) of Muslim Law of India by Dr. Tahir Mohmood and thereby erroneously decided all the issues in favour of plaintiff even ignoring pleading of parties is concerned, Section 368 of Mulla’s Principles of Mohammedan Law which reads as under:- 368. Power of de facto guardian to dispose of movable property- A de facto guardian [s. 361] has the power to sell and pledge the goods and chattels of the minor in his charge for the minor’s imperative necessities, such as food, clothing, or nursing. (Emphasis supplied) deals with the power of de facto guardian to the movable property only but here the subject matter of the sale deed is immovable property and Section 364 of Mulla’s Principles of Mohammedan Law which reads as under:- 364. Alienation of immovable property by de facto guardian- A de facto guardian [s. 361] has no power to transfer any right or interest in the immovable property of the minor. Such a transfer is not merely voidable, but void. prohibits alienation of immovable property of a minor by a de facto guardian. 17. So the analogy of Section 28 and 30 of Guardian and Wards Act, 1890 cannot be drawn in this case; as firstly Karim Mian was never appointed as a guardian in terms of Guardian and Wards Act nor he has any semblance of right to transfer the property of the plaintiff and his sisters. Hence in the considered opinion of this Court there is no illegality in the finding of the learned courts below that Ext. B and B/1 are void ab initio, the same having been executed contrary to the Section 364 of Mulla’s Principles of Mohammedan Law. Hence in the considered opinion of this Court there is no illegality in the finding of the learned courts below that Ext. B and B/1 are void ab initio, the same having been executed contrary to the Section 364 of Mulla’s Principles of Mohammedan Law. If it is treated that the plaintiff was a minor on 31.07.1974 i.e. the date when the sale deeds were executed and even if he is treated to be a major still the question of his guardian transferring his property does not arise and in such case also the transfer of a property even without having any semblance of right or authority to effect a transfer; also amounts to void ab initio transaction. The second substantial question of law is answered accordingly. 18. In view of the discussion made above, this appeal being without any merit is dismissed. 19. Let a copy of this Judgment along with the Lower Court Records be sent back to the court concerned forthwith.