CoramThe Honourable Mr v. Sowbagyam Ammal

In the High Court of Judicature at MadrasDated: 09-01-2007CoramThe Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYANSecond Appeal No.184 OF 1997Mohideen @ Akbar..Appellant/Plaintiff.vsSowbagyam Ammal..Respondent/3rd Defendant.[Defendants 1 and 2 have been given upas in AS] Second appeal has been filed against the judgment and decree dated21.03.1995 of the Subordinate Judge, Villupuram, made in A.S.No.244/1994,reversing the judgment and decree dated 27.03.1992 made in O.S.No.596/87on the file of the Court of Additional District Munsif, Kallakurichi.For Appellant : Mr.V.RadhakrishnanFor Respondent : Mr.R.MohanJUDGMENTThis appeal has been preferred against the decree and judgment inA.S.No.244/1994 preferred by the plaintiff, who has filed O.S.No.587/1996on the file of the Court of Additional District Munsif, Kallakurichi forpartition of plaintiff's one half share in the plaint schedule propertyand also for past and future mesne profits. The learned AdditionalDistrict Munsif, has decreed the suit in respect of plaint schedule itemNo.1. The question of mesne profits was relegated to a separateproceedings under Order 20 Rule 18 or C.P.C. On appeal the firstappellate Court in A.S.No.244/1994 has allowed the appeal setting asidethe decree and judgment in O.S.No.596/1987 on the file of the AdditionalDistrict Munsif, Kallakurichi, thereby dismissing the suit in toto.Hence, the present second appeal before this Court by the plaintiff.2. The facts relevant for the purpose of deciding this second appealas narrated in the plaint are as follows:-The plaintiff and the first defendant are brothers. The plaintschedule property originally belonged to the plaintiff's paternal grandfather Immam Sahib, who had executed a settlement deed in favour of theplaintiff and the first defendant on 29.08.1969. At the time of the https://hcservices.ecourts.gov.in/hcservices/ execution of the above said settlement deed, the plaintiff was a minor.Hence, the plaintiff's mother was appointed as a guardian, who had takenpossession of the suit property in lieu of the above said settlement deed.As per the settlement deed, the first defendant and the plaintiff are eachentitled to one half share in the plaint schedule property. Without anyright or title in respect of the suit property the mother of the plaintiffhad executed a sale deed in respect of plaint item No.1 property in favourof the second defendant on 29.1.1973. The plaintiff reliably understandthat his mother had executed another sale deed dated 9.5.1973 in respectof item No.2 infavour of the 3rd defendant. The plaintiff's father isstill alive with good health. Hence, the mother of the plaintiff will notbe a legal guardian in respect of the suit properties. Hence, the saledeed executed by the mother in respect of the suit property are void andwill not bind neither the plaintiff nor the first defendant. Theplaintiff need not set aside those sale deeds. The plaintiff was born inJune 1968. Excluding the plaintiff, the first defendant is enjoying thesuit property along with D2 & D3 inspite of the repeated demand from June1986 by the plaintiff to partition the property, the defendants refused todo so. The plaintiff is entitled to one half share in the plaint scheduleproperties. The first defendant is entitled to the remaining one halfshare. The plaintiff is entitled to get the amount not lessthan Rs.600/-towards mesne profits per year. The second defendant is liable to payRs.100/- towards mesne profits per year to the plaintiff. The plaintiffis also entitled to the future mesne profits in the above line. Eventhough Defendants 2 & 3 are in possession of the plaint schedule propertyfor more than 12 years, since the plaintiff has filed the suit beforeattaining the age of 21 years, the suit is not barred by limitation.Hence, the suit.3. The defendant 1 & 2 remind ex-parte. The third defendant in hiswritten statement would state that the sale deed executed by theplaintiff's mother Jamilabi in favour of this defendant on 9.5.1973 isvalid document and not a voidable document as alleged in the plaint. It isonly a voidable transaction and as the plaintiff has not prayed forsetting aside the sale deed, the suit as framed is not maintainable. Theplaintiff is aged more than 21 on the date of presentation of the plaintand so the suit is also barred by limitation. The allegation in theplaint that the plaintiff was born in June 1968 is not true. As thisdefendant is in possession of suit item 2 from 1973, this defendant hasacquired title by prescription to suit item 2. This defendant haspurchased suit item 2 from Jamilabi under a registered sale deed dated9.5.1973 for valuable consideration of Rs.5,000/- for discharge ofantecedent debts, family expenses and for benefit of the plaintiff'sfamily. The recitals in the sale deed may be treated as part of hiswritten statement. The said sale deed is true, valid and fully supportedby consideration and it is binding upon the plaintiff. In view of theprior proceedings, in O.S.No.605/1973 which has been affirmed by Sub-Court, Cuddalore in O.S.NO.168/1975, the present suit is barred byresjudicata and the plaintiff cannot be heard to say that the sale deed in https://hcservices.ecourts.gov.in/hcservices/ favour of this defendant is void. Mother Jamilabi, as a settlee wascompetent to execute the sale deed on behalf of the then minor plaintiff.This defendant has effected improvements to the suit property spendingmore than Rs.10,000/- and so the plaintiff has come forward with this suitto gain unjust enrichment. Further the sale deed has been executed towardthe discharge of debts which are binding upon the plaintiff. Thereforethe plaintiff cannot merely sue for possession of his half share in thesuit properties when the prior debts are binding upon the plaintiff. Thesuit item No.2 will not yield Rs.500/- per annum as alleged in the plaint.There will be a net yield of only Rs.250/- per annum. The plaintiff isnot entitled to any mesne profits from this defendant. This defendantdenies all other allegations made in the plaint. Therefore this defendantprays that the suit may be dismissed with costs.4. On the above pleadings the learned trial Judge framed nine issues.The plaintiff has examined himself as P.W.1 and Ex.A.1 & 2 were marked onthe side of the plaintiff. On the side of the defendants, husband of the3rd defendant was examined as D.W.1 and Ex.B.1 to Ex.B.4 were marked.After going through the available evidence both oral and documentary, thelearned trial Judge has decreed the suit for partition in respect of ItemNo.2 in the plaint schedule and also passed an order of past mesne profitsand relegating the future mesne profit to a separate proceedings underOrder 20 Rule 18 of C.P.C , and dismissed the suit in respect of theplaint Item No.1. Aggrieved by the findings of the trial Court, theplaintiff preferred an appeal before the Subordinate Judge, Virudachallamin A.S.No.244/94, who has set aside the trial court's judgment anddismissed the suit in toto. Hence, the second appeal before this Court.5.The substantial questions of law involved in this second appeal areas follows:a) Whether the lower appellate Court is right in Law holdingthat the sale deed executed by the plaintiff's mother as guardianwhen the plaintiff was minor, in favour of the 3rd defendant is avoidable transaction?b) Under the Mahomedan Law, the mother, not being a legalguardian, whether she has power to alienate the minor son'sproperty, and Ex.B.1, the sale deed, executed by the mother ofthe plaintiff/appellant is not a void transaction?c) Whether the lower appellate Court is right in Law holdingthat the sale deed Ex.B.1 is a voidable transaction?d) Whether the plaintiff/appellant can avoid the sale deedEx.B.1 by ignoring the same and whether the suit for partition,without setting aside the sale transaction Ex.B.1 is barred bylimitation?6.The point:- 6(i) The plaintiff Mohideen @ Akbar by way of this suit attacksEx.B.1-sale deed on the ground that the vendor under Ex.B.1-sale deed viz.his mother is not competent to execute the sale deed as the guardian of https://hcservices.ecourts.gov.in/hcservices/ the plaintiff. The learned counsel appearing for the appellant wouldcontend that the plaintiff is a muslim by religion who is covered underthe provisions of Mahomedan Law. The learned counsel for the appellantwould contend that as per Section 359 of the Mahomedan Law the mother isnot a legal guardian for a minor in respect of the property of the minorand that Ex.B.1-sale deed executed by the mother of the plaintiff while hewas a minor in respect of the plaint schedule item No.2 in favour of the3rd defendant is voidable. 6(ii) Per contra, the learned counsel for the respondents wouldcontend that as per Section 359 of the Mahomedan Law, (a) The fateher;(b) the executor appointed by the father's will; (c) The father's father;(d) the executor appointed by the will of the father's father; areentitled in the said order to be a guardian of the property of a minor andthat the mother was appointed as guardian of the minor by the grand-fatherof the minor (father's father) and hence, the sale deed executed by themother under Ex.B.1 in respect of suit item No.2 in favour of the 3rddefendant cannot be held to a void document. For this contention ofrespondents' counsel, the counsel for the appellant would reply that asper section 359 of the Mahomedan Law, only the fater and in his absence,the executor appointed by the father's will or in his absence the father'sfather and fourthly executor appointed by the will of the father's father,can be a legal guardian and in this case father's father has not executedany will appointing the mother of the minor as legal guardian, but he hasonly executed a settlement deed Ex.B.1 wherein he has appointed the motheras a guardian. But this contention of the learned counsel for theappellant in my opinion cannot be sustainable because there is not muchdifference between the appointment of the mother by the grand-father undera will and the appointment of the mother as a guardian under a settlementdeed. The only difference between the Will and the settlement deed isthat 'Will' will come into force only after the death of the attestorwhereas the settlement deed will come into effect immediately. 6(iii) The learned counsel appearing for the appellant wouldcontend that there is no substantial questions of law involved in thissecond appeal and hence, the second appeal is to be dismissed on thatscore. For this proposition of law, the learned counsel relied on adecision reported in 2004 (1) Supreme Court Cases 271 (Md.Mohammad Ali(dead) by LRs. Vs. Jagadish Kalita and others). The facts in brief inthe said case are as follows:"One S, original owner of the suit premises,transferred the same to G and K, two brothers. The structuresstanding of the suit land, being Holdings Nos.522 and 523 of theMunicipality were divided into half and half. P, son of Gallegedly amalgamated both the said holdings and got themregistered in his name as Holding No.121. Holding No.522 was soldand a portion of Holding No.523 was leased out to Respondent 3 byP. On death of S, his sons got the lands mutated in their favourin terms of an order of the SDO of the Municipality. The LRs ofK (Defendants 7, 8 and 9) transferred their possessory rights inHolding No.523 to the appellant by a registered deed. Later, the https://hcservices.ecourts.gov.in/hcservices/ LRs of S Defendants 10, 11 and 12) transferred their rights,title and interest in Holding No.523 to the appellant.Thereafter, the appellant called upon Respondent 3 to pay rent tohim which was denied. The appellant filed a money suit forrecovery of arrears of rent but the same was dismissed. Theappellant then filed another suit praying for a decree fordeclaration of his right, title and interest over the property,ejectment of Respondent 3 and precept to the Municipality formutating his name on Holding No.121. In the said suit Defendants1 to 3, 5 and 6 were LRs of P, Defendant 4 is Respondent 3,Defendants 7 to 9 were LRs of K and Defendants 10 to 12 were LRsof S. In that suit the contesting respondents herein inter aliaraised a plea of adverse possession on the ground that they andtheir predecessors-in-interest had their peaceful anduninterrupted possession for more than 40 years, adversely to theinterest of Defendants 10, 11, 12 and their predecessors-in-interest. They further set up a plea that the suit property wasnot actually partitioned between G and K nor was separatephysical possession thereof effected and in fact G and K orallygifted the plot to P and since then he had been in exclusive andpeaceful possession as owner. The trial Court decreed the suit.But the first appellate court held that the appellant had failedto prove the factum of oral gift. It was, however, observed thatsome sort of mutual arrangement might have taken place. Thefirst appellate court furthermore held that the burden layheavily on the plaintiff to prove his title and possession within12 years since before the date of filing of the suit but hefailed to prove the same and as such the suit was hit by Article65 of the Limitation Act. The High Court dismissed the secondappeal. Before the Supreme Court the appellant filed copies ofthe plaint and the written statement pursuant to the Court'sorder so as to enable it to decide whether the plea of adversepossession taken by the respondent is sustainable. On behalf ofthe appellant it was submitted that the parties admittedly hadbeen co-sharers, the first appellate court as also the HighCourt have committed a manifest error in dismissing the suitholding that the respondents perfected their title by adversepossession, although the contesting respondents neither raisedany plea nor proved ouster of other co-sharers. Allowing the appeal the Honourable Supreme Court held thatthe respondents in their written statement raised a plea ofadverse possession only against the third set of the defendants.A plea of adverse possession set up by the respondents does notmeet the requirements of law also in proving ouster of a co-sharer. But in the event the heirs and LRs of G and Kpartitioned their properties by metes and bounds, they wouldcease to be co-sharers in which event a plea of adversepossession as contradistinguished from the plea of ouster couldbe raised. The respondents have failed to raise any plea of https://hcservices.ecourts.gov.in/hcservices/ ouster. No finding has been arrived at by the High Court as tofrom which date they began to possess adversely against theplaintiff or his predecessors-in-interest. Mere non-payment ofrents and taxes may be one of the factors for proving adversepossession but cannot be said to be the sole factor. The HighCourt has not assigned any reason as to how there had been a openouster by P. Furthermore, the first appellate Court applied awrong principle of law in relation to interpretation of Article65 of the Limitation Act, 1963. The High Court fell into thesame error. In the facts of the present case the question of therespondents acquiring title by ouster of the appellant on thebasis of the order of the municipal authorities in the mutationproceedings does not arise. In the suit the only issue whichcould be raised and determined was as to whether Respondent 3 wasa tenant of the plaintiff. As the plaintiff or his predecessors-in-interest failed to show that Respondent 3 was inducted bythem, his claim for arrears of rent was rejected but the Courtwhile determining the said issue could not have gone into a purequestion of title as well as the question as to whether therespondents herein acquired title by adverse possession.The High Court while determining the question should haveformulated substantial questions of law in terms of Section 100of the Code of Civil Procedure, 1908. In absence of formulationof such substantial questions of law, probably the High Courtcommitted the errors. In the case on hand, the question of law to the effect whether to setaside the sale transaction Ex.B.1 is barred by limitation has been framed,even though there is no substantial question of law whether the defendantshave prescribed title by way of adverse possession has been farmed. Sincethere is no relevant substantial question regarding prescription of titleby way of adverse possession by the defendant has been framed before thisCourt, this Court is of the opinion that once the sale deed executed bythe mother under Ex.B.1 is held valid then, the question of law ofprescription of title by adverse possession in respect of the suitproperty by the defendants dose not arise at all for consideration. So,the ratio laid down in the above said dictum will not applicable to thepresent facts of the case. 6(iv) The learned counsel for the appellant relied on thedecision reported in AIR 1975 PUNJAB & HARYANA 198 (Anant Ram Vs. TheState of Punjab) and contended that in the second appeal the parties arenot entitled to challenge the findings of the Courts below regarding thedate of birth of the appellant once it has been decided on the basis oforal and documentary evidence. The trial Court relying on Ex.A.2 has cometo the conclusion that on the date of filing of the suit the plaintiff wasaged only 19 years one month and 14 days and hence, before attainingmajority of 21 years of age the suit has been filed by the plaintiff andhence it cannot be said that the suit is barred by limitation. But it ispertinent to note that Ex.A.2 is a transfer certificate issued by Schoolrelating to one Akbar. It is not stated in Ex.A.2 that it relates to https://hcservices.ecourts.gov.in/hcservices/ Mohideen @ Akbar, but the plaintiff has mentioned his name in the causetitle to the plaint as Mohideen @ Akbar. The plaintiff, to show his ageon the date of filing of the suit has not filed his birth certificate. Ithas been categorically held in the above said dictum as follows:-"The entries in the school register and transfercertificate of a school which is not a Government or StateSchool are not admissible under Section 35. Evidence Act, as anemployee of that school is not a public servant as defined underSection 21(9). Penal Code, and entries in registers made by himare not made in public or official registers. The fact that inpractice generally lesser age is given during admission inschools must be taken into consideration by the Court and suchentries in school registers cannot be made the basis for anyconclusion. In the above dictum AIR 1940 Rang 191, (1968)70 Pun LR(SN) 31, AIR 1936 Lah 598, (1969( 71 Pun LR (SN) 21 and AIR1965 SC 282 were followed and AIR 1959 SC 57 and AIR 1963 SC302 referred.However, the author of EX.A.2 was also not examined as a witness to proveEx.A.2. The first appellate Court in its judgment at para 13 has givenreasoning for rejecting Ex.A.2-transfer certificate on the ground that theage of the person can be ascertained only from birth certificate and noton the basis of a school transfer certificate, relying on a decisionreported in AIR 1970 SC 1020. The plaintiff in his cross-examination hasalso admitted that only at the age of 5 he was admitted in the firststandard and that he has filed the suit in the year 1989. If theplaintiff would have joined in the first standard at the age of 5 yearsthen at the time of leaving the school on 5.1.1981 he would be 12 yearsof age studying in 7th standard. He has filed the suit in the year 1987.But as per Ex.A.2 has was 14 years of age while studying 7th standard inthe year 1981. So at the time when he filed the suit he must be not lessthan 21 years of age. There is no birth certificate produced to show theexact age of the plaintiff. So as rightly held by the first appellateCourt the suit was also not filed within three years from the date ofattaining majority of the plaintiff. 6(v) The learned counsel for the appellant relying on 1996(7)Supreme Court Cases 436 (Meethiyan Sidhiqu Vs. Muhammed Kunju PareethKutty and others), contended that the sale deed executed by the mother onbehalf of the minor Mohideen is not valid and it is to be construed as avoid document. Even in the said dictum at para 5 the Honourable ApexCourt has held as follows:-"Mulla's Principles of the Mohammadan Law (19th Edn.) byJustice M.Hidayatullah, former Chief Justice of this Court andArshad Hidayatullah, deals with legal property guardians of aMuslim minor in Section 359. In the order, only father,executor appointed by the father's will, father's father and theexecutor appointed by the will of the father's father are legalguardians of property. No other relation is entitled to be theguardian of the property of a minor as of right; not even the https://hcservices.ecourts.gov.in/hcservices/ mother, brother or uncle but the father or the paternalgrandfather of the minor may appoint the mother, brother oruncle or any other person as his executor or executrix of hiswill in which case they become legal guardian and have all thepowers of the legal guardian as defined in Sections 362 and 366of the above Principles. The Court may also appoint any one ofthem as guardian of the property of the minor in which case theywill have all the powers of a guardian appointed by the court,as stated in Sections 363 to 367." I am of the opinion that mother appointed by the paternal grand-father (father's father) under Ex.B.1-settlement deed is also competent tobe a legal guardian as defined under Section 359 of Mahomaden Law inrespect of the properties of a minor. Even as per Ex.B.1-sale deed, theplaintiff-Mohideen was aged 7 years in the 1973. After a lapse of 14years from the date of execution of Ex.B.1, the plaintiff has field thesuit in the year 1987 at the age of 21years. This itself will clearly goto show that the age mentioned in Ex.A.2 will not be a correct one,because he ought to have been born in the year 1966 itself whereas inEx.A.2 it is stated that he was born in the year 1968. Under suchcircumstances, I do not find any illegality or infirmity in the findingsof the learned Subordinate Judge in A.S.No.244/1994 on the file ofSubordinate Court, Villupuram. Apart from the reasoning given in thejudgment in A.S.No.244/1994 this Court is of the view that the sale deedexecuted by the mother of the plaintiff under Ex.B.1 is valid under law asper Section 359 of the Mahomedan Law since she has been appointed as legalguardian by the father's father of the minor under Ex.A.1-settlement deed.Point is answered accordingly.7. In the result, the appeal is dismissed with costs throughoutconfirming the decree and judgment in A.S.No.244/1994 on the file of theSubordinate Judge, Villupuram.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.sg/ssv https://hcservices.ecourts.gov.in/hcservices/ To1. The Subordinate Judge, Villupuram.2.The Addl. District Munsif, Kallakurichi.3. The Section Officer, VR Section,High Court, Madras.Second Appeal No.184 of 1997JE[CO]gp/16.2.