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1973 Supreme(Cal) 48
HIGH COURT OF CALCUTTA
Salil Kumar Datta
SK. NASIRUL HOQUE - Appellant
Versus
MINOR JOHORA KHATUN BIBI - Respondent
A. F. A. D 2083 Of 1965
Decided On : FEBRUARY 19, 1973
Mrittunjoy Palit, S.C.MITTER, SAILENDRA BHUSAN BAKSHI, SHYAMA PRASANNA ROY CHOUDHURY
The sale of a minor's property under Mohammedan Law is valid if it is necessary for the minor's maintenance, even if the minor has other properties.
Headnote:
MOHAMMEDAN LAW - SALE OF MINOR'S PROPERTY - CONDITIONS FOR VALIDITY - SALE FOR MAINTENANCE - INTERPRETATION OF ARTICLE 362 OF MULLA'S MOHAMMEDAN LAW - SUFFICIENCY OF EVIDENCE TO PROVE MAINTENANCE - EFFECT OF MISAPPROPRIATION OF CONSIDERATION MONEY BY LEGAL GUARDIAN.
Fact of the Case:
Plaintiff, a minor, filed a suit for confirmation of title and possession of her property, alleging that the sale of her property by her father to her father-in-law was void as it was not for her benefit and the consideration money was misappropriated by her father. The defendant, who obtained the property through a pre-emption decree, contested the suit, claiming that the sale was valid and necessary for the plaintiff's maintenance.
Finding of the Court:
The trial court dismissed the suit, but the appellate court decreed the suit, holding that the sale was void as it violated the conditions of transfer of minor's property under Mohammedan Law. The defendant appealed to the High Court.
Issues: 1. Whether the sale of the minor's property by her father was valid under Mohammedan Law. 2. Whether the pre-emption decree obtained by the defendant was valid and enforceable.
Ratio Decidendi: 1. The court held that the sale of the minor's property was valid as it was necessary for her maintenance. The court interpreted Article 362 of Mulla's Mohammedan Law, which sets out the conditions for the validity of the sale of a minor's property, to mean that if the minor has other properties but they do not yield sufficient income for maintenance, the sale of some or all of the properties is necessary and valid. 2. The court held that the pre-emption decree obtained by the defendant was valid and enforceable as there was no illegality in the sale of the minor's property.
Final Decision: The appeal was allowed, the judgments and decrees of the courts below were set aside, and the plaintiff's suit was dismissed.
( 1 ) THIS is an appeal by the defendant against a judgment of affirmance decreeing the suit. The suit was for confirmation or in the alternative recovery of possession on declaration of title and for injunction. Allegations made in the plaint are as follows : The plaintiff obtained the suit property from her father by a bemeadi lease dated 17-6-1952. The plaintiff had been since in possession thereof on payment of rent. The suit property is comprised within Dag No. 1276 being a demarcated portion measuring 2 decimals out of 9 decimals which along with land measuring half decimal of dag No. 1275 was taken settlement of as stated above. The plaintiff was aged about 14/15 years when the suit was filed on 20-11-59. The plaintiff's father purporting to act on her behalf sold the said land of dag No. 1276 on 4-2-1956 to plaintiff's father-in-law Abdul Malek. The sale was not for her interest or benefit and the recitals made in the document were false. There was never any purchase of adjacent land as recited therein as the purpose of the sale. It was also stated that the entire consideration was misappropriated by the plaintiff's father and accordingly the kobala was void and her interest was not thereby affected, as the document was not binding on her. The defendant filed a pre-emption suit being Suit No. 102 of 1956 which was decreed by a solenama on 20-8-1958. The plaintiff's possession of the suit property was unaffected by the pre-emption decree and the plaintiff claimed a declaration of her title to the said land on the finding that the kobala dated 4-2-1956 purported to be executed on her behalf was void and the pre-emption decree was also void and also for confirmation of possession. The plaintiff further prayed for recovery of possession if it was found that she was out of possession and injunction restraining the defendant from dispossessing the plaintiff in respect of the suit land was alsi prayed for. . This suit, was filed by the plaintiff as minor through her guardian-husband Sk. Nurul Islam.
( 2 ) THE defence filed by the defendant contesting the suit was that the suit was not maintainable by the husband, that the decree in pre-emption Suit No. 102 of 1956 was binding on the plaintiff as she was represented by her guardian in the said suit. The suit was barred by estoppel, waiver and acquiescence and the plaintiff had no right to challenge the acts done by her father. Further Abdul Malek the purchaser under the impugned deed was a necessary party. The defendant admitted the settlement in favour of the plaintiff and her being in possession thereof on that basis. But it was contended that the sale to Abdul Malek was a valid sale for consideration for plaintiffs maintenance as her father was too poor to maintain her and husband's apathy and failure to maintain her was evidenced by matrimonial proceedings between the parties. The sale was accordingly legal and valid and the case of the misappropriation of the consideration money by the plaintiff's father was untrue. Abdul Malek acquired perfect title to the suit property by his purchase and on the basis of pre-emption decree the defendant became entilled to the suit property and in Title Execution Case No. 54 of 1958 the possession was delivered to him. For these reasons the suit was liable to be dismissed.
( 3 ) ON a trial on evidence the suit was dismissed by the trial Court and on appeal the case was remanded back for hearing for enabling the plaintiff to produce the certified copy of the kobala impugned in the suit. After remand the trial Court decreed the suit on the finding that the sale to Abdul Malek was void under the Mohammedan Law. It was held that the sale under Mohammedan Law for violating the conditions of transfer of minor's property was void and invalid and not voidable as in Hindu Law in respect of such transfer. Accordingly it was not necessary for her to pray for setting aside the pre-emption decree and the suit was thus maintai
