IMPORTANT POINT
Unless there is a specific plea and proof that the appellant has disclaimed his right under void sale deed and asserted hostile title and possession to the knowledge of the respondent within the statutory period and the later acquiesced to it, he cannot succeed to have it established that he perfected his right by prescription or adverse possession.

ORDER

Leave granted.

2. Heard counsel on both sides. The facts are not in dispute.

3. This appeal by special leave arises from the judgment and decree of the Kerala High Court passed on September 9, 1986 in Second Appeal No. 296/82. Admittedly, the appellant is a purchaser of the property from the 1st respondent who was a minor at that time and the property was sold through his mother as guardian. The question raised in this case is, whether the sale is valid and whether the appellant has perfected his title. Admittedly, the sale was effected in 1949. the trial Court and the appellate Court upheld the right of the respondent but the High Court reversed the same and held that since the sale by the mother as a guardian was void in law, the appellant could not get valid title. Parties are co-owners of the properties. One co-owner cannot claim prescriptive right against another co-owner and in view of the fact that the plea was not raised that he asserted adverse title, disclaiming the right under the sale deed and that the respondent had acquiesced to it, the plea of adverse possession was not sustainable in law. The High Court decreed the suit of the respondent. Thus this appeal by special leave.

4. Shri Anam, learned counsel for the appellant has contended that since the father Mohammad Kunju died, the mother is the natural guardian and sale made by her as guardian of the respondent, therefore, is not void. We find no force in the contention.

5. Mulla s "Principle of the Mohammadan Law" [Ninteenth 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. 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 or 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 Section 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. In Imambandi v. Mutsaddi1, 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 Moham-madan law"