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1970 Supreme(Mad) 39
Madras High Court
SADASIVAM,MAHARAJAN
Mohamed Naziruddin - Appellant
Versus
Govindarajulu Appah - Respondent
Decided On : 01/23/1970
N. Suryanarayana, for Appellant; C.R. Krishna Rao and A. Kaniala Devi, for Respondents.
A donor under Mohamedan law cannot impose restrictions on the powers of the legal guardian under the Mohamedan law to deal with the properties of the ward in addition to the restrictions already contained in the Mohamedan law.
Headnote:
GIFT - SALE - VALIDITY - RESTRICTION ON ALIENATION - MOHAMEDAN LAW - GUARDIAN'S POWER TO ALIENATE - TRANSFER OF PROPERTY ACT, S. 10 - LIMITATION ACT, ART. 44 - IMPROVEMENTS - CLAIM FOR COMPENSATION - TRANSFER OF PROPERTY ACT, S. 51 - CO-OWNERSHIP - PARTITION - PRELIMINARY DECREE.
Fact of the Case:
The father of the plaintiffs executed a gift deed in respect of a superstructure in favour of his grandsons, who were minors represented by their father. The donor directed the mortgage over the property to be redeemed from the income and profits from the property gifted by him. The father of the minors paid only a sum of Rs. 55 towards the principal till the end of 1946. On 10th October 1946, he agreed to sell the property on behalf of his minor sons to one Abdul Azeez Sahib and received Rs. 300 and redeemed the mortgage by paying Rs. 245 on 14-12-1946. He executed the sale deed as guardian of his minor sons in favour of Abdul Aziz Sahib for Rs. 500 and received the balance of consideration of Rs. 200 for the maintenance expenses of the minor sons. Abdul Aziz Sahib sold the property purchased by him under Ex. B-3 to one Gulam Ahmed Sahib for Rs. 700. Gulam Ahmed Sahib sold the superstructure on the western portion described as 13-A Fakir Sahib St., first lane, Triplicane, under Ex. B-9, dated 3-1-1948 for Rs. 5500 in favour of Mohamed Yusuf Sahib. The heirs of Mohamed Yusuf Sahib at first executed the mortgage Ex. B-10 dated 10-9-1956 in favour of one Bano Prasad Davay and subsequently sold the property under Ex. B-14, dated 29-4-1957 in favour of the first defendant. Gulam Ahmed Sahib sold the eastern half of the superstructure purchased by him under Ex. B-4 in favour of Muthu Kannammal for Rs. 1000 under Ex. B-19 dated 26-7-1947, and she in her turn sold the property to Amirthavalli Ammal under Ex. B-22, dated 20-8-1948 for Rs. 1500. The second defendant is the mother and heir of Amirthavalli Ammal. The plaintiffs filed a suit for a declaration that they are entitled to the suit properties and for possession of the same with past mesne profits from the first defendant and from the second defendant and future mesne profits.
Finding of the Court:
The sale deed executed by the father of the plaintiffs as guardian of his minor sons is not binding on the plaintiffs. The defendants are entitled to rights by way of subrogation in respect of the mortgage debt of Rs. 245, discharged out of the sale consideration of Ex. B-3. The claim of the first plaintiff is barred by Art. 44 of the Limitation Act as he had attained majority more than three years prior to suit. Though defendants 1 and 2 had effected improvements as claimed by them, there was no evidence about the value of the same and the plaintiffs were relegated to a separate suit for partition and separate possession in respect of their 5/12th share in the suit properties.
Issues: 1. Whether the sale deed executed by the father of the plaintiffs as guardian of his minor sons is valid? 2. Whether the defendants are entitled to rights by way of subrogation in respect of the mortgage debt of Rs. 245, discharged out of the sale consideration of Ex. B-3? 3. Whether the claim of the first plaintiff is barred by Art. 44 of the Limitation Act? 4. Whether defendants 1 and 2 had effected improvements as claimed by them? 5. Whether the plaintiffs are entitled to a preliminary decree declaring their right to 5/12th share in the leasehold right of the suit property subject to their paying their proportionate share of the mortgage amount of Rs. 245?
Ratio Decidendi: 1. The restrictions sought to be imposed by the donor under the original of Ex. A-1 on the power of alienation which the father of the minors as legal guardian possessed under the Mahomedan law are invalid. It is not open to the donor under Mohamedan law to curtail the powers of the legal guardian when he gifts the property in favour of the minors. 2. If the recitals in the sale deed are accepted as true, there could be no difficulty in upholding the sale deed as valid. But as the recitals in the document are not accepted as prima facie true, there is no evidence, apart from the interested recitals in the document to show that there was any necessity for the same. 3. The sale under Ex. B-3 is only voidable and not void and the suit not having been filed within three years of the first plaintiff having attained majority is barred against him under Art. 44 of the Limitation Act. 4. Considerable improvements have been effected not only by defendants 1 and 2 but also by their predecessors-in-title. The plaintiffs are entitled to only 5/12th share in the leasehold right in the superstructure, which was gifted under the original of Ex. A-1. 5. The plaintiffs are entitled to a preliminary decree declaring their right to 5/12th share in the leasehold right of the suit property subject to their paying their proportionate share of the mortgage amount of Rs. 245.
Final Decision: Appeal and memorandum of cross objections allowed to the extent stated. Preliminary decree declaring the plaintiffs right to 5/12th share in the leasehold right of the suit property subject to their paying their proportionate share of the mortgage amount of Rs. 245. Plaintiffs entitled to claim their 5/12th share in the superstructure on their paying the proportionate share of the cost of improvements less the proportionate share of the building materials of the dilapidated building which originally existed.
JUDGMENT :- Plaintiffs 1 and 2 are the sons of plaintiffs 3 and 4, who were added as the legal representatives of the second plaintiff who died during the pendency of the suit. One Mohamed Ghouse Khan Sahib, the father of the fourth plaintiff, executed a gift deed on 19-9-1938 in respect of the superstructure of house No. 13 Fakir Saheb Street, first lane, Triplicane, Madras in favour of his grandsons, plaintiffs 1 and 2, who were then minors represented by their father and guardian Mohamed Mahaboob Khan, the fourth plaintiff in the suit. Ex. A-1 is a registration copy of the gift deed and it shows that the property has been valued at Rs. 1000. At the time of the gift there was a mortgage Ex. B-1 dated 25-4-1938, executed by Mohamed Ghouse Khan for Rs. 300, over the property covered by the gift deed. The donor directed the mortgage to be redeemed from out of the income and profits from the property gifted by him. The fourth plaintiff paid only a sum of Rs. 55 towards the principal till the end of 1946. On 10th October 1946, he agreed to sell the property covered by the gift on behalf of his minor sons to one Abdul Azeez Sahib and received Rs. 300 and redeemed the mortgage Ex. B-1 by paying Rs. 245 on 14-12-1946, as evidenced by the endorsement Ex. B-2. He executed the sale deed, Ex. B-3 dated 7-6-1947, as guardian of his minor sons in favour of Abdul Aziz Sahib for Rs. 500 and received the balance of consideration of Rs. 200 for the maintenance expenses of the minor sons. Abdul Aziz Sahib sold the property purchased by him under Ex. B-3 to one Gulam Ahmed Sahib for Rs. 700. Gulam Ahmed Sahib sold the superstructure on the western portion described as 13-A Fakir Sahib St., first lane, Triplicane, under Ex. B-9, dated 3-1-1948 for Rs. 5500 in favour of Mohamed Yusuf Sahib. The heirs of Mohamed Yusuf Sahib at first executed the mortgage Ex. B-10 dated 10-9-1956 in favour of one Bano Prasad Davay and subsequently sold the property under Ex. B-14, dated 29-4-1957 in favour of the first defendant. Gulam Ahmed Sahib sold the eastern half of the superstructure purchased by him under Ex. B-4 in favour of Muthu Kannammal for Rs. 1000 under Ex. B-19 dated 26-7-1947, and she in her turn sold the property to Amirthavalli Ammal under Ex. B-22, dated 20-8-1948 for Rs. 1500. The second defendant is the mother and heir of Amirthavalli Ammal. It should be noted that the first defendant and the second defendant's daughter Amirthavalli Ammal have purchased the sites of the respective superstructures from, the owner Krishnadas Lala under Ex. B-12 and Ex. B-23 respectively. The third defendant has been impleaded as the mortgagee from the said Amirthavalli Ammal. Defendants 4 to 7 are the vendors of the first defendant. The 8th defendant was impleaded under Order 8-A C. P. C. at the instance of the first defendant.
2. Plaintiffs 1 and 2 file the suit in forma pauperis for a declaration that they are entitled to Items 1 and 2 of the plaint A schedule properties, which are described as superstructures bearing former door No. 13 and now 12 Fakir Sahib St. first lane, Triplicane, by virtue of the gift deed under the original of Ex. A-1 in their favour, and for possession of the same with past mesne profits Rs. 870 from the first defendant and Rs. 1080 from the second defendant and future mesne profits. Their case is that the alienation made by their father is void and not binding on them. The suit was contested by defendants 1 and 2. The learned Third Assistant Judge, City Civil Court, Madras, found that the sale deed Ex. B-3 executed by the fourth plaintiff as guardian of his minor sons was not binding on plaintiffs 1 and 2, that defendants 1 and 2 were however entitled to rights by way of subrogation in respect of the mortgage debt of Rs. 245, discharged out of the sale consideration of Ex. B-3, that the claim of the first plaintiff was barred by Art. 44 of the Limitation Act as he had attained majority more than three years prior to suit and
