Md. Umar & Ors. v. M. Rab, Advocate with him

The defendant-2nd party respondent appellant has filed this Second Appeal against the Judgment and Decree dated 15.12.1995 passed by the learned Ist Addl. District Judge , East Champaran at Motihari in title suit No.25 of 1994 / 1 of 1994 whereby the learned lower appellate Court allowed the appeal and set aside the Judgment and Decree dated 31st 2 Patna High Court SA No.60 of 1996 dt.15-07-2013 March, 1994 passed by the learned Ist Addl. Munsif, Motihari in partition suit No.36 of 1989 / 62 of 1994.

The plaintiff respondent filed the aforesaid partition suit praying for declaration that the sale deed dated 15.05.1957 executed by Bibi Rashidan as illegal and inoperative and also prayed for partition of his share in the suit property measuring 14 dhur. The plaintiff respondent claimed the aforesaid relief alleging that 1 katha 8 dhur land belong to Mostt. Manoram. On her death, the said property devolved on her two sons, namely, Mobarak Hussain and Amanat Hussain. Amanat Hussain sold his half share to the defendant No.1. Mobarak Hussain died leaving behind his wife Bibi Rashidan and 3 sons, namely, Md. Ibrahim, Md. Suleman and Ahmad Hussain, the defenantNo.1 and daughter Fauzdar Bibi. Md. Ibrahim died leaving behind his son, defendant No.2 whereas Md. Suleman died leaving behind his two son who are defendant No.3 and

The son and daughters of Bibi Khodaija are defendant No.5 and 6. According to the plaintiff Bibi Rashidan on her behalf and on behalf of her minor son Ahmad Hussain sold 7 dhur land by registered sale deed dated

20.11.1948 ext. 1/B in favour of Bibi Kitaban and Md. Shabir. The plaintiff is the heir of said Mostt. Kitaban who purchased the shares of both the co- sharer by registered sale deed dated 19.01.1989 by ext. 1/A. In the suit property measuring 14 dhur Bibi Rashidan had 1/8th share, Md. Ibrahim, Md. Suleman and Ahmad Hussain had 2/8th share each and Bibi Khodaija had 1/8 share. The plaintiff had already purchased the shares of the defendants total to the extent of half in the suit property from Bibi Rashidan and the share of Khodaija, Ibrahim and Ahmad Hussain and thus the plaintiff became the owner and in possession of 12… dhurs and the remaining 1(cid:190) dhur is in joint possession with the defendant No.1 and 2. 3 Patna High Court SA No.60 of 1996 dt.15-07-2013

The defendant No.7 appellant filed contesting written statement alleging that the plaintiff had got no unity of title and unity of possession in the suit property. The main defence of the defendant is that Mostt. Rashidan was the owner of property who sold the entire suit land by registered sale deed dated 15.5.1957 ext.‘C’ to Mostt. Rahima Khatoon. Mostt. Rahima Khatoon sold the entire land by registered sale deed dated

21.08.1967, i.e., ext. C/2 to Ahmad Hussain and Ahmad Hussain sold to defendant No.7 by registered sale deed dated 25.08.1967, ext. ‘C’. After selling the property, Ahmad Hussain remained in possession of the suit house as tenant. He lost the eviction suit No.386 of 1969 up to the High Court and the defendant No.7 has filed execution case No.13 of 1976 for obtaining delivery of possession of the suit property. The sale deed of the year 1948 executed by Bibi Rashidan is forged, fabricated document.

4. The trial Court after considering the materials available on record came to the conclusion that the plaintiff did not come in possession of the suit land on the basis of sale deed dated 20.11.1948 and never constructed house. The purchase of the suit land after dismissal of the Second Appeal on 12.1.1989 and 19.01.1989 and 01.02.1989 shows that the plaintiff is in collusion of defendants Ist party. The trial Court also recorded the finding that the sale deed of the year 1948 was not acted upon. Accordingly, dismissed the plaintiff’s suit.

The plaintiff filed appeal before the lower appellate Court. The lower appellate Court recorded the finding that the plaintiff acquired valid title on the basis of the registered sale deed dated 20.11.1948. The sale deeds executed by Bibi Rahiman in favour of Ahmad Hussain and Abeda Khatoon are illegal invalid and inoperative and accordingly decreed the 4 Patna High Court SA No.60 of 1996 dt.15-07-2013 plaintiff’s suit holding that the plaintiff is entitled for 12.1… dhur land out of 14 dhur.

On 12.01.2000, at the time of admission of the Second Appeal, the following substantial question of law were formulated :- (i) Whether in view of the categorical finding by the trial Court arrived after considering the evidence both oral and documentary that Bibi Kilaban did not come in possession of the suit land on the basis of the sale deed dated 20.11.1948 (Ext.1/6), the lower appellate Court erred in holding that she derived right, title and interest on the basis thereof without considering the evidence which were considered and relied upon by the trial Court? (ii) Whether the lower appellate Court erred in holding that Most. Rashidan sold 7 dhur out of the suit land to Kitaban vide sale deed dated 20.11.1948 (Ext. 1/6) without considering the legal position that Mohammadan mother is not a guarding of the properties of her children and cannot transfer the property of her children and as such at worst Kitaban derived title to the extent of the share of Most. Rashidan, i.e., 1/8th only? (iii) Whether in absence of any finding that the plaintiff has unity of title and possession, the lower appellate Court erred in decreeing the suit for partition?

With respect to the first substantial question, the learned senior counsel, Mr. Raghib Ahsan appearing on behalf of the appellant submitted 5 Patna High Court SA No.60 of 1996 dt.15-07-2013 that the trial Court after considering the evidences oral and documentary both recorded a finding that on the basis of the sale deed dated

20.11.1948 ext. 1/B purchaser never came in possession, therefore, in fact the sale deed was never acted upon. Had the sale deed been acted upon, the vendor Bibi Rashidan could not have sold the property again in the year 1957. However, the lower appellate Court without considering the evidences on this point as has been discussed by the trial Court recorded the finding that the sale deed is valid one and the purchaser acquired right, title and interest on the basis thereof. According to the learned counsel, therefore, the Judgment of the lower appellate Court is vitiated. With respect to second substantial question of law, the learned senior counsel submitted that the lower appellate Court wrongly held that Bibi Rashidan had rightly sold 7 dhur of land by registered sale deed dated

20.11.1948 without considering the legal position that Mohmmodan mother is only a defacto guardian and had no right to sell the share of her minor son, therefore, the sale deed dated 20.11.1948 is void to the extent of the share of minor Ahmad Hussain who is defendant No.1. According to the learned counsel, Bibi Rashidan had only 1/8th share in the suit property, therefore, he could have transferred her share only to the extent of 1/8th share and not more than that. The lower appellate Court had not considered this aspect of the matter also.

So far the third substantial question of law is concerned, the learned counsel submitted that the plaintiff has filed the suit for partition, therefore, unless the findings recorded to the effect that there is unity of title and possession between the parties, the plaintiff is not entitled for grant of relief of partition. In the present case according to the learned 6 Patna High Court SA No.60 of 1996 dt.15-07-2013 counsel, the lower appellate Court had not recorded the finding that there is unity of title and possession between the parties.

So far the submission of the learned counsel for the appellant regarding purchase of property from Bibi Rashidan is concerned, it may be mentioned here that since Bibi Rashidan had already sold her entire interest in the suit property in the year 1948, she had no right title to sell the property in 1957. It is settled law that the earlier sale will prevail. The said Bibi Rashidan had no authority to sell more than her share.

On the contrary, the learned counsel, Mr. Sharda Nand Mishra appearing on behalf of the respondent submitted that the sale deed was executed by Rashidan in the year 1948 and the heir of Bibi Rashidan never challenged the same. Therefore, the title passed to the purchaser Bibi Kitaban. The learned counsel further submitted that in fact only one son Ahmad Hussain was minor. Therefore, Bibi Rashidan sold her share and the share of her son Ahmad Hussain in the year 1948 and when Ahmad Hussain became major, he never challenged the sale deed of the year 1948, therefore, it became obsolete. Now, at this stage the defendant who is purchaser from defendant No.1 cannot be allowed to say that the sale deed was never acted upon. The learned counsel further submitted that it is admitted fact that the defendant is also purchaser from defendant No.1, the plaintiff are also purchaser from the different co-sharer, now, therefore, when both the parties are claiming title through purchase from the co-sharer, they have stepped into the shoes of their respective vendors who are co-sharers, in such circumstances only because there is no finding that there is unity of title and possession, the plaintiff’s suit cannot be dismissed. 7 Patna High Court SA No.60 of 1996 dt.15-07-2013

From perusal of the lower appellate Court Judgment, it appears that the lower appellate Court has negatived the case of the defendant appellant that the property belonged to Rashidan. The lower appellate Court recorded the finding that in fact the property belonged to Bibi Manoram and in earlier partition suit out of 1 katha 8 dhur land 14 dhur land fell in the share of Mubarak Hussain, therefore, on the death of Mubarak Hussain, the 14 dhur land devolved on all the heirs, i.e., the widow Rashidan to the extent of 1/8th share, Bibi Khodaija to the extent of 1/18th share, i.e., each 1.75 dhurs. The sons having 1/4th share = 3.50 dhurs Md. Ibrahim, Md. Suleman and Ahmad Hussain each. It is admitted case that the sale deed was executed and registered on 20.11.1948 by Bibi Rashidan with respect to 7 dhurs of land in favour of Bibi Kitaban. By this sale deed, Bibi Rashidan sold her share as well as the share of son Ahmad Hussain who was minor at that time. The question is whether a Mohmaddan mother has the right to sell the share of minor son.

Article 359 of Principle of Mohammadan Law by Mulla 19th edition provides that the father the executor appointed by the father’s Will, the father’s father and the executor appointed by the Will of the father’s father are only guardian of the property of a minor. Therefore, the mother of a Mohammdan minor son is not recognized as a guardian of the property of minor. In such view of the matter, she will be nothing but defacto guardian. It is not the case of the either party that she was ever appointed as guardian by the Court. According to Article 364, a defacto guardian has no power to transfer any right or interest in the movable property of the minor. 8 Patna High Court SA No.60 of 1996 dt.15-07-2013

In the case of Shambhu Gosai Vs. Payari Miyan (28) AIR 1941 Patna 351, this Court in similarly situated case has held that the mother of a minor son is defecto guardian has no power to sell any immovable property belonging to him and secondly, the sale of his interest is absolutely void.

In the case of Abdul Karim Vs. Mostt. Maniram AIR 1964 Patna 6, a Division Bench of this Court has held that defacto guardian is custodian of person and property of minor and has no power to transfer a right or interest in the immovable of the minor. Such a transfer if made, is not merely voidable but void vide paragraph 8. Therefore, by ext. 1/B,i.e., registered sale deed dated 20.11.1948 the transfer made by Bibi Rashidan with respect to the share of her minor son Ahmad Hussain is void in view of the stated proposition of law enumerated hereinabove. Therefore, whether Ahmad Hussain challenged the same or not is immaterial, if his share to the extent of 1/4th i.e., 3.50 dhur could not have been transferred by Bibi Rashidan and the transfer made by her is void means that no valid title passed to the purchaser by the said sale deed.

So far the submission of the learned counsel for the appellant that the registered sale deed was never acted upon is concerned, it may be mentioned here that the registered sale deed is of the year 1948.

In the case of Perm Singh Vs. Birbal 2006 (5) SCC 353 the Hon’ble Supreme Court has held that there is a presumption that a registered document is validly executed. A registered document, therefore prima facie is valid in law. The onus of prove thus would be on a person who leads evidence to rebut the presumption. In this case, it may be mentioned here that the defendants never challenged the said sale deed of 9 Patna High Court SA No.60 of 1996 dt.15-07-2013 the year 1948. Therefore in the defence, they cannot be allowed to challenge the genuineness or the validity of the sale deed. Admittedly, no counter claim has been filed by the defendant.

In the case of Md. Noorul Hoda Vs. Bibi Raifunnisa 1996 (7) SCC 767, the Hon’ble Supreme Court has held that when the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded as provided under Section 31 of the Specific Relief Act. Here as stated above, the defendants never challenged the sale deed which is of the year 1948 and the presumption of genuineness of the same is in favour of the plaintiff. The defence of the defendant is that it is forged, fabricated document.

In the case of Abdul Rahim Vs. Sk. Abdul Zabar AIR 2010 SC 211= 2009 (6) SCC 160, the Hon’ble Supreme Court has held that a suit for cancellation of transaction whether on the ground of being void and voidable would be governed by Article 59 of the Limitation Act. In view of the above settled proposition of law when the defendants did not challenge the genuineness of the sale deed within the 3 years from the date of execution in the defence, he cannot be allowed to say that in fact the sale deed is forged and fabricated document. However, since the mother had no right, title and interest to transfer the interest of minor son, the sale deed with respect to the share of minor son Ahmad Hussain will be void and to that extent, the title will not pass on the purchaser. 10 Patna High Court SA No.60 of 1996 dt.15-07-2013

So far the submission of the learned counsel for the appellant that the plaintiff never came in possession on the basis of sale deed dated

20.11.1948 is concerned, it may be mentioned here that coming into possession of the property is not condition precedent for passing of title. As stated above, both the parties are claiming title on the basis of the purchase made by them from the respective co-sharers. It appears that the trial Court recorded the finding that the sale deed was never acted upon on the ground that the plaintiff never came in possession of the property without considering the passing of title by the registered sale deed. The question to be decided is what is the extent of share of the plaintiff and the defendant appellant in the suit property measuring 14 dhurs.

So far the substantial question of law that there must be finding to the effect that there is unity of title and possession between the party is concerned, in my opinion, it is consequential to the finding to the effect that both the parties have purchased the property from the co-sharer. In such circumstances whether there is finding or no finding regarding unity of title and possession which follows from the facts of the case and it is settled law that possession always follows title. Therefore, if the plaintiffs have got title and the defendant has got title in the property, both will be deemed to be in joint possession of the property.

So far the share of the parties are concerned, in view of aforesaid facts and finding that Bibi Rashidan could not have transferred the share of Ahmad Hussain i.e., 1/4th share in the suit property, this transfer made by her will be void to the said extent. The plaintiff will not be entitled for the said 1/4th share of Ahmad Hussain because the 11 Patna High Court SA No.60 of 1996 dt.15-07-2013 defendant appellant had purchased from defendant No.1, Ahmad Hussain. Therefore, 1/4th share of Ahmad Hussain will go to the defendant appellant.

In view of my above discussion, I find that the plaintiffs derived valid title and possession over the share of heirs of Bibi Rashidan except the share of Ahmad Hussain, defendant No.1. In such view of the matter, the plaintiff will be entitled to the share of Md. Ibrahim, Md. Suleman and Bibi Khodaija and Bibi Rashidan, i.e., 1/4th share + …+1/8+ 1/8= 3/4th share whereas the defendant appellant will be entitled to the share of Ahmad Hussain, i.e., 1/4th share. In view of my above discussion, the substantial question formulated are answered accordingly.

In view of the aforesaid findings, the Second Appeal is allowed in part. The impugned Judgment and Decree of the Courts below are hereby modified to the extent indicated above. In the facts and circumstances of the case, no order as to cost. (Mungeshwar Sahoo, J.) Sanjeev/N.A.F.R.