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Andhra Pradesh High Court
Judges : CHENNAKESAVA REDDY, T.LAKSHMI NARAYANA REDDY
Mohd.Qutubuddm Khan - Appellant
Versus
Habeebunnisa Begum - Respondent
Decided On : 09-17-82
MINORITY - AGE OF MAJORITY - MUSLIM LAW - GUARDIANSHIP ACT - PART B STATES (LAWS) ACT, 1951 - INDIAN MAJORITY ACT, 1875 - LIMITATION ACT - PARTITION - MATRUKA PROPERTIES - FAMILY SETTLEMENT - DE FACTO GUARDIAN - POWER TO ALIENATE PROPERTY - DOWER DEBT - RIGHT TO RETAIN POSSESSION - ALIENATION TO SATISFY DOWER DEBT - VALIDITY.
Fact of the Case:
The plaintiff, a Muslim minor, filed a suit for partition of the family properties left by his father. The defendants were the alienees of the properties sold by the plaintiff's mother, who was appointed as his guardian by the Darul Qaza Court. The defendants pleaded that the plaintiff was born in 1939 and that the suit was barred by limitation. They also pleaded that the plaintiff had ratified the partition by attesting the sale deed executed by the first defendant in favor of one Radha Pyari.
Finding of the Court:
The court held that the plaintiff was born on 21-7-1939 and that the suit filed on 6-3-1961 was barred by limitation. The court also held that the partition or the family arrangement under Ex. B-28 was not binding on the plaintiff and it cannot be ratified by him. The court further held that the first defendant was not competent to alienate the share of the plaintiff and that the alienations made by her were not void but voidable at the instance of the plaintiff.
Issues: 1. Whether the plaintiff was a minor at the time of the suit? 2. Whether the suit was barred by limitation? 3. Whether the partition or the family arrangement under Ex. B-28 was binding on the plaintiff? 4. Whether the first defendant was competent to alienate the share of the plaintiff? 5. Whether the alienations made by the first defendant were void or voidable?
Ratio Decidendi: 1. The court held that the plaintiff was a minor at the time of the suit based on the birth extract issued by the Municipal corporation of Hyderabad, which showed that the date of birth of the plaintiff is 14-10-1348 Fasli which is equivalent to 21-7-1939 according to the English calender. 2. The court held that the suit was barred by limitation as the plaintiff attained majority on 21-7-1957 and the suit was filed on 6-3-1961, which was beyond the limitation period of 3 years under Article 60 of the Limitation Act. 3. The court held that the partition or the family arrangement under Ex. B-28 was not binding on the plaintiff as it was made by the first defendant as a de facto guardian and not as a legal guardian appointed by the Court. 4. The court held that the first defendant was not competent to alienate the share of the plaintiff as she was only a de facto guardian and not a legal guardian appointed by the Court. 5. The court held that the alienations made by the first defendant were voidable at the instance of the plaintiff as they were made by a de facto guardian without the permission of the Court.
Final Decision: The court dismissed the appeal and upheld the judgment and decree of the lower court.
( 1 ) THE unsuccessful plaintiff in the suit is the appellant.
( 2 ) THE facts giving rise to the litigation between he parties are not uncommon. Nawab Gulam Mohiuddin khan died on 6-6-1964 at Hyderabad leaving behind him as his heirs, his widow defendant No. 1 his sons, defendants 2, 3 and the plaintiff, and his daughter, defendant No. 4, He left behind him immovable properties mentioned in the a Schedule annexed to the plaint and a so considerable immoveable properties including cash. Defendants 5 to 21 are the alienees of the properties mentioned as Items 1 to 8 in the b Schedule by defendants 1 to 3. Under the Muslim Law of succession, the plaintiff and defendants 3 and 4 are entitled to 1/4th share each and the 1st defendant gets 1/8lh share. The 4th defendant also is entitled to 1/8th share. Another daughter by name Kaleemi Banu Begum of the Nawab by his first wife had been given her share in the property at the time of her marriage under a registered partition deed of 1356 Fasli.
( 3 ) THE plaintiff claims that he was born on 15-8-42. According to him he was a minor when the alienations were effected by defendants 1 to 3 in favour of the several persons who are implea- ded as defendants 4 to 21, and the alienations are void and are not binding on him. Therefore, he filed a suit in forma pauperis for partition of the plaint schedule properties and for mesne profits.
( 4 ) THE first defendant remained ex pane, and defendants 2 to 4 filed their written statements supporting the plaintiff s case. Defendants 6 and 7 are the alienees of Item 2 of the B schedule properly, a mulgi situated at abid Road, Hyderabad. According to them, they purchased this property from defendants 1 and 2 under the registered sale deed Ex. B-17, dated 17-7-51, for a consideration of Rs. 60,000/-to satisfy the 3 decrees aggregating to Rs. 60, OOO/- (OS ). According to these defendants the date of birth of the plaintiff was not 15-8-42 and he was born in 1939 and was aged 23 years on the date of the presentation of the suit, and, therefore the suit was barred by limitation.
( 5 ) IT is also pleaded that after the death of Nawab Gulam Mohiuddin khan, there was a partition of the properties between defendants 1 to 3 the plaintiff, the 4th defendant and kaleemi Banu Begum, where by after making allowance for the debts, kaleemi Banu Begum s share was fixed and paid in cash to her. It is further pleaded that before the execution of the sale deed itself, these defendants and defendants 1 and 2 filed a compromise petition (Ex. B-23) in the course of the execution proceedings, whereby, the plaintiff and defendants 1 to 3 were allotted certain properties. Under the said compromise, the plaintiff was allotted a mulgi No. 1242/1 and half of mulgi No. 1242/2 situated at Abid road. Therefore, it was not open to the plaintiff to challenge the sale of other properties by defendants 1 and 2.
( 6 ) FURTHER, it is pleaded that the plaintiff is precluded from disputing the sale in favour of these defendants as he ratified the partition by attesting the sale deed executed by the first defendant in favour of one Radha Pyari. In any case, the defendants pleaded, that if the Court for any reason reopens the previous partition, the property sold to them may be allotted to the share of defendants 1 and 2 and the Mehar debt of Rs, 1. 32. 500/- due to the 1st defendant and the sale In favour of these defendants may be upheld. The suit was, also pleaded to be, bad as some of the properties left behind the nawab had not been included.
( 7 ) DURING the pendency of the suit, the 6th defendant died and his legal Representatives were brought on record as defendants 32 to 41.
( 8 ) THE 5th defendant is the alienee of Item I of B Schedule property situated at Abid Road bearing Municipal no. 5-8-564 and 5-8-570 to 5-8-572 together with adjacent land from defendants 1 to 3 and the plaintiff minor represented by his mother and guardian. They purchased the prope
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