Sale of immovable property of minor by legal guardian.

The defendants who have failed in both the Courts below are the appellants and the only question is whether the suit is barred by limitation, the plaintiff having otherwise a good case on the merits. As will be seen presently, the plaintiff unfortunately will have to fail under the inexorable law of limitation. Learned Counsel for the respondent urged the merits of his client’s case; but the Courts have no discretion in the matter of applying the law of limitation and when it does fall on the facts of the case it has to be applied.

The properties in the suit, two items, belonged to the plaintiff’s mother Dawood Bivi, and on her death in 1947 the plaintiff got 3/4th share in the properties, the plaintiff’s father getting the remaining 1/4th share. The plaintiff’s mother had purchased the two items on 15th February, 1932, under Exhibit B-5 for a sum of Rs.1,000. At the time of purchase the second item of the suit properties was subject to an othi for Rs. 275 and this othi had to be discharged by the purchaser. The other item was subject to a simple mortgage for Rs. 85. On the 13th March, 1949, the plaintiff’s father as guardian and protector of the plaintiff and on his own behalf conveyed the suit properties under the registered sale deed Exhibit A-1 (original of Exhibit A-5) for a consideration of Rs.2,000 to the first defendant in the suit,the first appellant herein. The second defendant in the suit, the other appellant, is a lessee from the first defendant. The first defendant, it must be pointed out, had taken an assignment of the othi on the second item. On the date of transfer by the plaintiff’s father (Exhibit B-5) the plaintiff was a minor aged about 12. The items of consideration for the sale were Rs. 275 for discharge of the othi, Rs.225 for payment of kist and family expenses and Rs.1,500 cash received before the Sub-Registrar for purchasing some other lands. The suit out of which this second appeal arises was filed on 8th July, 1960,when the plaintiff was about 24 years old, seeking partition and separate possession of the plaintiff’s 3/4th share in the suit properties and for an account of the income from the said share. The plaint referred to an obstruction put forward by the first defendant to her having possession of the properties, claiming title under the alleged sale in his favour by plaintiff’s father. She pleaded that the sale was not binding on her and her properties. Apart from seeking to justify the alienation on the merits, in defence the bar of limitation was set up, the contention being; that Article 44 of the Indian Limitation Act, 1908 applied and the suit filed more than three years after the plaintiff had become a major was barred. The Courts below have concurred in finding that none of the conditions necessary under the Muhammadan Law to give power to a legal guardian to effect alienation of the immovable properties belonging to a minor was available in this case. They,, however, held that it was Article 144 and not Article 44 that applied to the case and therefore, the suit was in time. The appellate Court, however, has directed that the plaintiff could have partition only on depositing into the lower Court her three fourth share in the othi amount.

There can be no doubt that the alienation in question is in excess of the powers of the guardian. The father is no doubt the legal guardian of a minor. But under the Muhammadan Law the powers of even legal guardian are limited. As pointed out in Principles of Mahomedan Law, Mulla, fifteenth edition, at page 297,

“A legal guardian of the property of a minor has no power to sell the immovable property of the minor except in the following cases, namely, (i) Where he can obtain double its value; (ii) where the minor has no other property and the sale is necessary for his maintenance; (iii) Where there are debts of the deceased, and no other means of paying them; (to) where there are legacies to be paid, and no other means of paying them; (v) Where