SupremeToday Landscape Ad
Back
Next
Judicial Analysis Court Copy Headnote Facts Arguments Court observation
Listen Audio Icon Pause Audio Icon
judgment-img

2008 Supreme(Bom) 1581

In the High Court of Bombay at Aurangabad
THE HONOURABLE MR. JUSTICE V.R. KINGAONKAR
Tikaram Ragho Choudhary & Others - Appellant
Versus
Shaikh Gaffar Shaikh Bismillah & Another - Respondent
Second Appeal No.156 of 1991
Decided On : 11 November 2008

Advocates Appeared: For the Appellants :V.J. Dixit, Senior Advocate.

Headnote:Mohammedan Law (by Mulla), Art.364 - Guardians and Wards Act (1890), S.17, 25, 27 :- Mother, uncle or brother of a Muslim minor can not be a guardian under Muslim Law. Mother can at best be a de facto guardian of a minor son, but under Mohammadan law she can never be a de jure guardian capable of disposing or dealing with his property. Alienation by such guardian is not merely voidable, but void. There is no concept of legal necessity in Muslim law unlike in Hindu law.

Judgment :

1. Challenge in this appeal is to judgment rendered by learned Additional District Judge, Jalgaon, in an appeal (R.C.A. No. 119/1983) whereby and whereunder judgement and decree of Trial Court in Spl. Civil Suit No. 28/1977 came to be reversed.

2. Original defendants No. 2 to 14 are appellants herein. Respondent No. 1 - Shaikh Gaffar is original plaintiff and respondent No. 2 – Sugrabi is original defendant No. 2. Respondent No. 1 Shaikh Gaffar is son of respondent No. 2 - Sugrabi. He filed suit (Spl. C.S. No. 28/1977) for setting aside alienation made by her and for his 7/8th share by way of partition and separate possession in respect of the suit fields.

3. Briefly stated, case of the respondent No. 1 (plaintiff) before the Trial Court was that he and respondent No. 2 had filed a partition suit bearing Spl. C.S. No. 3/1956 against his uncles, etc. That suit ended in a compromise decree passed on 30th November 1956. By virtue of such compromise decree, the suit properties were allotted to him as shown in the schedule appended with the plaint. They comprised of agricultural fields bearing Survey No. 353 admeasuring 1 acre 29 gunthas, situated at village Savda, Taluka Raver and fields bearing Survey No. 91/2, admeasuring 0 acre 29 gunthas and Survey No. 91/4, admeasuring 3 acres 4 gunthas, situated at village Waghode, Taluka Raver. He was minor, aged about 2 years, at the relevant time. The respondent No. 2 - Sugrabi filed an application (Misc. Appln. No. 86/1956) in the District Court for her appointment as his guardian under provisions of the Guardians and Wards Act, 1890. The Court appointed her as his guardian as per order dated 27th April, 1957, under section 7 of the Guardians and Wards Act, 1890. She was in possession of the suit properties after the partition decree for and on behalf of both of them. She alienated the field Survey No. 353 situated at village Savda by virtue of sale-deed dated 14th February 1961 in favour of original defendants No. 2 and 3. They subsequently got the said field partitioned. She also alienated the fields Survey No. 91/2 and Survey No. 91/4 to original defendant No. 9, which lateron changed hands and came to the shares of original defendant No. 10 Sudhakar. He transferred the same in favour of defendant No. 11 Hemantkumar during implementation of the Consolidation Scheme.

4. The respondent No. 1 - plaintiff asserted that the transactions were not binding on him. He demanded partition of his share. The defendants did not accede to his demand and, therefore, he sued them for partition and separate possession alongwith declaration that the sale-deeds executed by the respondent No. 2 - original defendant No. 1 were not binding on him. He also claimed mesne profits.

5. Therespondent No. 2 (original defendant No. 1) filed consent written statement (Exh-72).

6. The appellants resisted the suit. It was their contention that the suit fields were in exclusive

possession of defendant No. 1- Sugrabi who represented to them that she was competent to alienate the same. They were unaware of the fact that she was appointed as guardian of the plaintiff. They asserted that the suit was barred by limitation. They further asserted that the suit fields were alienated by defendant No. 1 Sugrabi for the welfare and benefit of her minor son - respondent No. 1

- Shaikh Gaffar. They further asserted that she purchased a house property bearing M.C. No. 68 at Jalgaon by utilizing the consideration amount in respect of the sale transactions. They asserted further that they are the bonafide purchasers for valuable consideration and deserved legal protection. They also contended that they have become owners by adverse possession. Consequently, they sought dismissal of the suit.

7. The parties went to trial over issues struck below Exhibit-73 by the learned Civil Judge. They adduced oral and documentary evidence in support of the rival contentions. The suit was dismissed by the Trial Court. The Trial Court held














Click Here to Read the rest of this document
1
2
3
4
5
6
7
8
9
10
11
Judicial Analysis

SupremeToday

SupremeToday Portrait Ad
supreme today icon
logo-black

An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers

Please visit our Training & Support
Center or Contact Us for assistance

qr

Scan Me!

India’s Legal research and Law Firm App, Download now!

For Daily Legal Updates, Join us on :

whatsapp-icon Back to top