A de facto guardian lacks authority to transfer immovable property rights of a minor, rendering such transfers void ab initio.

JUDGMENT :

Anil Kumar Choudhary, J.

Heard the parties.

2. No one turns up on behalf of the respondent in-spite of repeated calls. Hence, this appeal is heard ex-parte.

3. This second appeal has been preferred under Section 100 of Code of Civil Procedure against the judgment and decree of affirmance dated 18.10.2004 passed by the learned District Judge, Chatra in Title Appeal No. 20 of 2003 whereby and where under, the learned first appellate court has confirmed the judgment and decree passed by the trial court being the Munsif, Chatra dated 29.08.2003 in Title Suit No. 22 of 1995 whereby and where under, the learned Munsif decreed the suit of the plaintiff and ordered that the sale deed nos. 3953/1974 and 3954/1974 executed in favour of Tekni Gowalin are declared as null and void and not binding upon the plaintiff and also declared that Karim Mian was not guardian of the plaintiff and his two sisters and decreed the suit to the aforesaid extent.

4. The brief fact of the case is that the plaintiff filed Title Suit No. 22 of 1995 in the court of Munsif, Chatra with the aforesaid prayer.

5 The case of the plaintiff in brief is that the suit was recorded during the cadastral survey as bakast in the name of Shaikh Iddu and others who were the khewatdars. The khewatdar Iddu Mian and others made settlement of the land and after several settlement and purchases ultimately the suit property devolved upon the plaintiff and her mother Amna Khatoon being the exclusive surviving owners in possession over the land left by Rahim Mian. In October, 1995 the defendants began claiming the suit land as purchased land of Karim Mian. The plaintiff enquired the matter and learnt that two sale deeds bearing nos. 3953/74 and 3954/74 both dated 31.07.1974 were executed by Karim Mian son of Iddu Mian for self and falsely impersonating himself as guardian of the plaintiff and his two minor sisters in favour of Massomat Tekani Gowalin-the mother of the defendants, which is the schedule A property of the plaint. The plaintiff asserted that Karim Mian was not the guardian of the plaintiff or his sisters at any point of time, so he has no right to convey the suit land in favour of anyone so no right, title, interest or possession has accrued to the defendants by virtue of the said sale deed executed by Karim Mian in favour of Tekhani Gowalin. As cloud was cast upon the right, title and interest of the plaintiff, the plaintiff filed the suit with the aforesaid prayer.

6. In their written statement, the defendants challenged the maintainability of the suit on various technical grounds and pleaded that the plaintiff is not the only exclusive surviving owner of the land left by Bibi Kolsum. The defendants further pleaded that after remarriage of Amna Khatun with Jakir Mian after the death of her husband Rahim Mian who is the father of the plaintiff, the plaintiff and his sisters lived under the guardianship of Karim Mian. The members of Nagwan Mosque demanded money of mosque which was spent by Rahim Mian taking as loan in the saradh ceremony of Kolsum. Karim Mian executed two sale deeds himself as well as on behalf of the minor plaintiff and his two sisters as their guardian in favour of Tekni Gowalin after receiving full consideration money and the loan of the mosque was returned. Tekni Gowalin died leaving behind his two sons being the defendants who are in exclusive possession of the suit land.

7. On the basis of the rival pleading of the parties, the learned trial court framed the following seven issues which reads as under:-

(I) Is the suit is maintainable in the present form?

(II) Whether there is any cause of action for the suit?

(III) Whether the suit is bad for law of limitation and adverse possession?

(IV) Whether suit is barred by law of estoppel, waiver, acquiescence and specific relief Act?

(V) Whether suit is bad for non-joinder of parties?

(VI) Whether Karim Mian had right to execute sale deed No. 3953/74 and 3954/74 for self and on behalf of others in favour o