Sale of a minor's property is void ab initio if not executed under prescribed conditions of Mahomedan law, and discovery of fraud may extend limitation periods for filing suit.

JUDGMENT

These four appeals raise a common question and hence are being considered together and disposed of by common judgment.

2. The father of the appellant, one Late.Ibrahim Pillai had 2 Acres 27 cents, out of which 1 Acre 77 cents was settled in favour of the plaintiff, 1^st defendant and 2^nd defendant by document No.198 of 1980 (Ext.A3). There was a restrictive covenant in the said document by stating that without the permission of the father, the respective shares should not be transferred. Later, the father had executed a release deed on 21.07.1980 in favour of the plaintiff and others. The plaintiff was minor at the time of execution of the Settlement Deed No.198 of 1980 dated 16.01.1980. The plaintiff is the son of Ibrahim Pillai through his second wife. Ibrahim Pillai, later, by a separate document, transferred the remaining 50 cents in favour of his daughters out of yet another marriage. While so, on 17.12.1982, Ibrahim Pillai sold the minor’s right over the property having an extent of 1 Acre 77 Cents in favour of the 2^nd defendant Salim. Ibrahim Pillai died in the year 1997 and in the year 2000, the plaintiff instituted the suit for partition of a separate 1/3^rd share over the plaint schedule property. Defendants resisted the suit by contending that there was an earlier suit filed by them as O.S. No.289 of 1983 for injunction against the plaintiff, his siblings from trespassing into the plaint schedule property. Since the litigation was among siblings, the matter was thereafter compromised and in pursuance to the said compromise, on 30.07.1985, a gift deed was executed in favour of the plaintiff by the 1^st defendant transferring 60 cents of land as a final settlement of the dispute. The property, which the 1^st defendant stated to have transferred to the plaintiff is one coming under the settlement deed executed by his father. It was further contended that later, the 2^nd defendant sold the property to the 1^st defendant and thus the 1^st defendant is in possession of the share and therefore, the suit is not maintainable. Further, a plea of limitation was also raised stating that the present suit is not filed within a period of three years on attainment of majority of the plaintiff. On behalf of the plaintiff, Exts.A1 to A7 documents were produced and on behalf of defendants Exts.B1 to B9 documents were produced. The Exts.C1, C2 and C3 are the reports of the Advocate Commissioner and Exts.C2(a) and C3(a) are the Survey plans attached to the reports of the Advocate Commissioner. PW1 to PW3 were examined on behalf of the plaintiff and DW1 and DW2 were examined on behalf of the defendants. The trial court framed the following issues for consideration:

O.S.353/2000

1. Whether the suit is maintainable?

2. Whether the plaint schedule properties are partible? If so, what is the share to be allotted to the plaintiff?

3. Whether the plaintiff is entitled to get mesne profits?

4. Whether the plaintiff is entitled to get the declaration sought for?

5. Whether the sale deed No.4029/1982 is liable to be set aside?

6. Relief and cost.

O.S.453/2001

1. Whether the plaint A schedule property is identifiable?

2. Whether the plaintiff has got possession over plaint A schedule property?

3. Whether the plaintiff is entitled to recover possession of the building situated in plaint A schedule property?

4. Whether the defendant is liable to restrained by a decree for permanent prohibitory injunction as prayed for?

5. Relief and cost.

3. It is pertinent to mention that after the institution of the suit for partition, O.S.No.453 of 2001 was instituted by the defendants seeking recovery of possession agains