Back
1972 Supreme(Gau) 43
GAUHATI HIGH COURT
B. N. SARMA, J.
Ahmadellah -Appellant
Versus
Mafizuddin Ahmad and another -Respondent
Second Appeals Nos. 16 and 17 of 1970
Decided On : 29-06-1972
Y. Imo Singh, for Appellant, M. Gharugopal Singh
Educational expenses of a child form part of his maintenance under Mohammedan Law.
Headnote:
MAINTENANCE - MOHAMMEDAN LAW - LEGAL NECESSITY - EDUCATIONAL EXPENSES - WHETHER FORM PART OF MAINTENANCE - INTERPRETATION OF SECTION 369 OF MULLA'S MOHAMMEDAN LAW, 16TH EDITION.
Fact of the Case:
The plaintiffs filed a suit for declaration of their title and for recovery of possession over the suit land, alleging that they purchased the land from Ali Mia, who had purchased it from Obedullah, the father of the defendant, who was a minor at the time of the sale. The defendant contested the suit, denying the sale of the land by his father to Ali Mia and claiming that he was the owner of the land.
Finding of the Court:
The District Judge held that Obedullah purchased the land for the benefit and interest of his minor son Ahmadullah, and that the latter was the owner of the land. He also held that Obedullah, the father of the defendant transferred the suit land to All Mia for legal necessity, that is, for maintenance of his minor son. The District Judge further held that the plaintiffs had acquired good title to the suit land by their purchase from Ali Mia, and they are entitled to recover possession over the same.
Issues: 1. Whether the father of the defendant sold the suit land to Ali Mia with the delivery of possession in consideration of the legal necessity of the defendant during the latters minority? 2. Is the plaintiff entitled to the reliefs as claimed?
Ratio Decidendi: 1. The definition of the word "Maintenance" as given in Section 369 of Mulla's Mohamedan Law, 16th Edition, which was relied on by the appellant is not exhaustive. The word "include" is generally used in interpretation clauses in order to enlarge the meaning of words or phrases, occurring in the body of the Statute; and when it is so used those words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. 2. The expenses of ordinary and reasonable education of a child forms part of his maintenance. 3. In the present state of our society, which is rapidly advancing in all directions, education upto the Higher Secondary Stage cannot be said to be extravagant, so as to be excluded from maintenance.
Final Decision: The appeals are dismissed with costs.
This judgment will cover two appeals, namely. S. A. Nos. 16 and 17 of 1970, arising out of Civil Appeals Nos. 19 and 27 of 1969, respectively, in the Court of the District Judge, Manipur, which were disposed of by a common judgment and which arose out of the same suit namely, T. S. No. 173/62/8 of 1965 in the Court of Munsiff (II), Manipur, filed by the present respondents.
2. The plaintiffs case, in brief, was that the suit land as described in the plaint, originally belonged to Kamal-ud-din, who is the younger brother of plaintiff No. 2. Kamal-ud-din sold the land to Obedulla the father of the defendant, under a registered sale deed, which was purported to be executed in Savour of the defendant who was then a minor. Sometime after this purchase, Obedullah sold the land allegedly on behalf of the defendant to one Ali Mia by a registered sale deed dated 2-9-1952 for due consideration and for legal necessity, that is, to meet the educational expenses of the defendant, who was then reading in School and delivered possession.
Ali Mia, in his turn, sold the land to the plaintiffs on 26-8-54 under a registered sale deed accompanied by delivery of possession, and after this purchase the plaintiffs put their agent Kamal-ud-din (brother of plaintiff No. 2) in possession of the land. Kamal-ud-din was in peaceful possession of the land till 13-10-1958 when he was dispossessed by Obedullah in collusion with the defendant, whereupon Kamal-ud-din filed a criminal case against Obedullah, in which he was convicted by the trial Court, but subsequently acquitted by the Judicial Commissioner in revision. Obedullah died in the meantime on 5-8-1962. and the defendant is now in occupation of the suit land. Under the circumstances, the plaintiffs filed the suit for declaration of their title and for recovery of possession over the suit land.
3. The defendant filed the written statement and contested the suit. He denied his knowledge about the sale of the land by his father in favour of Ali Mia, and he also denied that there was any delivery of possession to the said Ali Mia. It was contended by him that even if his father sold the land to Ali Mia he had no authority or legal necessity to sell the same and as such the sale was not binding on him. The subsequent sale of the land by Ali Mia to the plaintiffs and the possession and dispossession of the latter as alleged in the plaint were also denied.
4. Upon the pleadings, as many as 8 issues were framed including the following two issues, which were issue Nos. 3 and 8 respectively :
"3. Did the father of the defendant sell the suit land to Ali Mia with the delivery of possession in consideration of the legal necessity of the defendant during the latters minority ?
X X X X X X
8. Is the plaintiff entitled to the reliefs as claimed?"
5. It may be mentioned here that in the original plaint it was stated that the suit land originally belonged to the defendant, and that during his minority it was held by his father Obedullah, but at the stage of hearing, the plaint was amended to the effect that "the suit land originally belonged to Kamal-ud-din, the attorney of the plaintiffs as inherited from his father Nawab-ud-din, and that the suit land was sold to Obedullah by the said Kamal-ud-din, the deed of transfer being drawn up in the name of the defendant, and that after the said sale transaction the suit land was held in possession by the said Obedullah." Except for this amendment, the original plaint remained as it was.
6. After the above amendment, an additional issue was framed as follows, which was issue No. 3 (a) :
"3 (a) Whether suit land was sold to Obedullah by Kamal-ud-din, deed of transfer being drawn in the name of defendant ?" 7. In deciding the above issues the learned Munsiff, on a consideration of the evidence adduced in the case, held that late Obedullah was the real owner of the property, having purchased the same with his own money, and that the defendant was simply an ostensible owner. He
