High Court
Case Details
RSA 51/2003 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (ORAL) This appeal by the plaintiffs is directed against the judgment and decree dated 27.6.2002 passed by the learned Civil Judge (Senior Division), Nagaon in Title A ppeal No. 14/1994 affirming the judgment and decree dated 25.4.1994 passed by th e learned Civil Judge, (Junior Division) Nagaon in Title Suit No. 105/1993 dismi ssing the appeal preferred by the plaintiffs by affirming the judgment and decre e passed by the trial court dismissing the suit of the plaintiffs. 2. The plaintiffs/appellants instituted the suit praying for passin g a decree for delivery of khas possession and for declaring that the sale deeds executed by the defendant No. 2 in favour of defendant No. 1 are illegal, void and ab initio, contending inter alia that the suit land was gifted by the defend ant No. 2 in favour of the defendant No. 1 by two registered instruments both da ted 6.1.1975 and the plaintiffs were put into possession. It has further been pl eaded that having fulfilled three conditions required to constitute a valid gift , the right, title and interest vest on the plaintiffs and hence two sale deeds executed by the defendant No. 2, father of the plaintiffs, on 5.6.1976 and 6.4.1 977 in favour of the defendant No. 1 transferring the right, title and interest in respect of the suit land, are void the land having already been gifted in fav our of the plaintiffs on 6.1.1975. The plaintiffs also pleaded that such sale ar e also contrary to the Muhammedan law and hence void ab initio.
Legal Reasoning
3. The defendant Nos. 1 and 2 on receipt of summons entered appeara nce and filed their respective written statements. Defendant No. 1 in his writte n statement, while admitting the gift, as pleaded in the plaint, has, however, p leaded that the plaintiffs were minor at the relevant point of time and the suit land was sold by the defendant No. 2 in favour of the defendant No. 1 for prope r upbringing of the minors and hence the sale by defendant No. 2 in favour of th e defendant No.1 is valid. In the written statement filed by the defendant No. 2 it has been admitted that though the suit land was initially gifted to the plai ntiffs vide two registered deeds dated 6.1.1975, the same was sold to the defend ant No. 1 as the defendant No. 2 was involved in a murder case. 4. Based on the pleadings of the parties the trial court framed the following issues for determination: - (cid:28)1. Is there any cause of action for the suit? 2. Whether the suit is maintainable? 3. Is the suit barred by law of limitation and waiver, estoppel and acquiescence? 4. Is the suit bad for non joinder of necessary parties? 5. Whether sale of suit land by the proforma defendant in favour of the defendant was valid? 6. Whether the plaintiffs are entitled to recovery of khas posse ssion of the suit land? 7. To what relief, if any, the parties are entitled to? (cid:29) 5. The trial court based on the evidence, both oral and documentary , adduced by the parties, dismissed the suit of the plaintiffs by holding that t hough the suit land was gifted to the plaintiffs by the defendant No. 2 by two r egistered gift deeds both dated 6.1.1975, as the suit land was transferred by th e defendant No. 2 at a value which is double the price of the suit land such tra nsfer is valid under the Mahammedan law, the defendant No. 2 being the legal gua rdian of the plaintiffs. Being aggrieved the plaintiffs preferred the appeal whi ch has also been dismissed. Hence the present appeal. 6. The defendant No. 1, who is the respondent in the present appeal died during pendency of the appeal and hence the respondent Nos. 1(a) to 1(q) w ere substituted, they being the legal heirs and right to sue survived on them. 7. The appeal was admitted for hearing vide order dated 8.4.2003 on the following substantial question of law. 1. Whether minor’s property can be sold for immoral purpose, nam ely for defence in murder case. 2. Whether minor’s property can be sold for immoral purpose by g uardian. being appointed guardian under the provisions of Guardian and Wards Act. 3. Whether minor Mohammedan property can be validly sold without
Legal Reasoning
8. I have heard Ms B Choudhury, learned counsel for the appellant a s well as Mr. BK Saikia, learned counsel appearing for the respondent Nos. 1(a) to 1(q). None appears for the respondent No. 2, who was the proforma defendant i n the suit. 9. Referring to the finding recorded by the first appellate court i n para 14 of the impugned judgment, it has been submitted by Ms Choudhury, learn ed counsel for the appellant, that the finding that PW 2 in his evidence has adm itted that at the time of gift the value of the property was Rs. 2000/- to Rs. 2 500/- per bigha, is perverse, as PW 2 nowhere in his evidence has stated that th e price of the suit land at the relevant point of time was Rs. 2000/- to Rs. 250 0/- per bigha. It has also been submitted that since to constitute a valid sale by the legal guardian i.e. the father, one of the conditions specified in Sectio n 362 of the Mahammedan law is required to be fulfilled, in the instant case sin ce the defendant could not demonstrate the fulfillment of any of the conditions stipulated therein the learned court below ought not to have dismissed the suit of the plaintiffs. The learned counsel further submits that the first appellate court while deciding the appeal did not appreciate the evidence adduced by PW 1 and 2 as well as by the defendants in its proper perspective. 10. Mr. Saikia, learned counsel appearing for the respondent Nos. 1( a) to 1(q) submits that the plaintiffs and the defendants during pendency of the suit have settled the dispute out of court by transferring the suit land in fav our of the plaintiffs by executing the sale deeds, pursuant to compromise arrive d at on 18.8.2009 and as such the appeal may be disposed of in terms of such com promise for which MC No. 3374/2013 has been filed. 11. On merit it is submitted by Mr. Saikia, learned counsel that it is evident from the finding recorded by the first appellate court that at the re levant point of time the land was sold at the rate of Rs. 2000/- to Rs. 2500/- a nd since the suit land was sold at the rate of Rs. 3,000/-, one of the condition stipulated in Section 263 of the Mahammadan law has been fulfilled and hence th e sale was valid. Ms Choudhury, learned counsel appearing for the appellant in rep 12. ly has submitted that he she has no instruction as to whether the plaintiffs hav e repurchased the suit land as contended by the defendants in MC No. 3374/2013. 13. I have considered the submission advanced by the learned counsel for the parties and also perused the judgments and decrees passed by the learne d courts below. 14. It appears from the judgment passed by the first appellate court that the sale by the defendant No. 2 in favour of the defendant No. 1 was held to be valid based on the evidence of PW 2 who stated in his evidence that at the time of gift the value of the property was Rs. 2000/- to Rs. 2500/- per bigha. 15. Section 362 of the Mahammedan law provides that the legal guardi an i.e. the father can sell immovable property of the minor, amongst other, if h e can obtain double of its value. In the instant case we are not concerned with the other conditions as the appellate court has held the sale to be valid on the ground that the land was sold at double its value. Such finding by the appellat e court, on the basis of the evidence of PW 2, is perverse as PW 2 nowhere in hi s evidence has stated that the value of the property was Rs. 2000/- to 2500/- pe r bigha when the property was gifted. A suggestion though in that respect was pu t the same was denied by the PW 2 during the cross examination. 16. The first appellate court, as discussed above, has held the sale to be valid only on the basis of the such alleged admission by the PW 2 and not on the basis of any other evidence and without discussing other evidence in tha t regard. In this case, from the pleadings of the parties, as noticed above, ini tial gift by the defendant No. 2 in favour of the plaintiffs is not disputed. 17. In view of the above, the judgment and decree passed by the firs t appellate court is set aside and the matter is remitted to the first appellate court for deciding the same afresh based on the evidence on record. No order al so can be passed by this Court in MC No. 3374/2013 regarding the compromise in t he absence of the affidavit of all the parties to the suit. It is, however, open to the parties to file appropriate application under Order 23 Rule 3 CPC if the y have settled their dispute in the meantime and in the event such application i s filed the same shall receive due consideration of the first appellate court an d necessary order shall be passed therefor. 18. urt on 20.12.2013. The parties are directed to appear before the first appellate co 19. The appellate court shall make an endeavour to decide the appeal within four months from the date of appearance of the parties. 20. 21.
Decision
The appeal is allowed to the extent indicated above. No cost. The Registry is directed to send down the records forthwith.