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Subhan Ali Vs. Chittu and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1927All631
AppellantSubhan Ali
RespondentChittu and anr.
Excerpt:
.....the filing of proof of payment of the debts was a condition subsequent and the failure of the guardian to comply with that condition cannot affect the validity of the sale-deed in favour of the defendant-appellant......null and void, and was ineffectual to adversely affect their title to the house conveyed by that sale-deed. the plaintiffs alleged that there was no legal necessity for the transfer made by their mother, and that the sale by her was made without the permission of the district judge, and as such was voidable at their option. it was also alleged in the plaint that the sale-deed was not read over and explained to mt. kelo nor did she understand the nature of the transaction, and though this allegation of the plaintiffs was denied in the written statement, no issue was framed on the point by the trial court, and there is no discussion about this point in the judgments of the courts below and, as such, it is permissible to presume that the plaintiffs did not attack the validity of the sale.....
Judgment:

1. This is a defendant's appeal and arises out of a suit brought by two minor plaintiffs for a declaration that a sale-deed, dated the 25th of July 1916, executed by their mother Mt. Kelo, who was appointed their guardian by the District Judge, in favour of the defendant-appellant, was null and void, and was ineffectual to adversely affect their title to the house conveyed by that sale-deed. The plaintiffs alleged that there was no legal necessity for the transfer made by their mother, and that the sale by her was made without the permission of the District Judge, and as such was voidable at their option. It was also alleged in the plaint that the sale-deed was not read over and explained to Mt. Kelo nor did she understand the nature of the transaction, and though this allegation of the plaintiffs was denied in the written statement, no issue was framed on the point by the trial Court, and there is no discussion about this point in the judgments of the Courts below and, as such, it is permissible to presume that the plaintiffs did not attack the validity of the sale deed on this ground in either of the Courts below.

2. The defence to the suit was that the sale-deed in dispute was executed by Mt. Kelo for valid necessity with the previous permission of the District Judge,and the plaintiffs were not entitled to avoid the same.

3. Both the Courts below have held that the sale-deed must be taken to have been executed without the permission of the District Judge and is, therefore, voidable at the instance of the minor plaintiffs; but inasmuch as it was proved that a sum of Rs. 594, but of the sale consideration, was taken for the benefit of the minors, the plaintiffs were entitled to a decree declaring the invalidity of the sale-deed subject to the payment of Rs. 594 to the defendant.

4. It is common ground that, on the 8th April 1916, Mt. Kelo applied to the District Judge for permission to sell a house belonging to the plaintiffs in order to pay certain debts and the District Judge, because of certain mistakes in the draft of the proposed sale-deed which was filed along with the application for permission to sell the house, rejected the application with liberty to the applicant (the plaintiffs' mother) to file a fresh application. On a second application being filed the District Judge, on the 15th July 1916, granted permission to Mt. Kelo to sell the house for Rs. 925 and passed the following order:

Permission is granted, as prayed, on condition that proof of payment of the decretal debt be filed.

5. On the 25th July 1916, the house was sold to the defendant for Rs. 925. out of which Rs. 50 had been paid by the defendant to Mt. Kelo prior to the execution of the sale-deed, and Rs. 875 were paid before the Sub-Registrar. Mt. Kelo paid the debts for the discharge of which the sale had been sanctioned by the District Judge, but did not file proof of the payment of the debts, as enjoined by the order dated the 15th July 1916, and the District Judge, on the 5th August 1916, without issuing any notice either to Mt. Kelo or to the defendant-appellant, revoked the sanction given by him on the 15th July 1916, Thereafter, on the 1st September 1916, Mt. Kelo filed an application for cancellation of the order revoking the permission to sell the house given by the District Judge, and, along with the application, filed receipts in proof of payment of debts, but the learned District Judge rejected the application on the 9th September 1916. It does not clearly appear whether or not the defendant-appellant succeeded in getting possession of the house sold to him.

6. The suit giving rise to the present appeal was filed about seven years after the execution of the sale-deed in favour of the defendant, viz., on the 16th July 1923.

7. Both the Courts below were of opinion that the permission granted to the guardian by the District Judge was a 'conditional sanction' and the condition not having been complied with, the sale-deed was voidable at the instance of the minor plaintiffs. We are unable to agree with the view taken by the Court below.

8. It is true that a District Judge, while granting permission to a certified guardian of a minor to transfer the minor's property, can impose conditions on the guardian, but a distinction must be drawn between a condition precedent and a condition subsequent imposed by the District Judge on the guardian. Non-compliance with a condition precedent will vitiate a transfer made by the guardian. But the same cannot be the effect of non-compliance with a condition subsequent, unless there is something in the order, granting permission to transfer the minor's property, casting an obligation on the transferee of that property to do some act subsequent to the execution of the deed of transfer in his favour. The only duty cast upon the transferee by law is that he must satisfy himself that the order sanctioning the transfer has been strictly complied with by the guardian up to the time of the execution of the deed of transfer, and that no conditions precedent imposed by the order have been violated. If the conditions precedent have been complied with by the transferee in conformity with the permission granted by the District Judge, a good title will pass to the transferee, and the failure of the guardian to comply with the subsequent conditions cannot divest the title already vested in the transferee by the transfer. If, by the order sanctioning the transfer, the guardian and not the transferee is directed to do certain acts after the execution of the deed of transfer the failure of the guardian to comply with that direction cannot affect the validity of the transfer. The view that we take is in consonance with the view taken in the case of Dyam Khan v. Sarat Chandra De [1916] 26 C.W.N. 218 and with the view taken by Richards, J., in the case of Kunja Mal v. Gauri Shankar [1905] 3 A.L.J. 30. In the case last mentioned Banerji, J., took a view opposed to the view taken by Richards, J. But it appears that the transferee in that case had not complied with the permission granted by the District Judge directing him to pay the full consideration for the transfer, and had retained a substantial portion of the consideration in his own hands. It does not appear from the judgment of Banerji, J., whether he regarded the condition imposed by the District Judge in that particular case as a condition precedent or a condition subsequent to the execution of the sale-deed by him.

9. The Courts below have also relied on the case of Sri Thakur Kishori Ramanji Maharaj v. Duley Ram A.I.R. 1924 All. 474. It was pointed in that case that the decision in that case was confined to the facts of that particular case, and the learned Judges who decided that case retrained from

entering into the question whether in all cases revocation of the sanction will affect or not a transfer made previous to the revocation.

10. Moreover, in that case a much larger property than was sanctioned to be sold by the District Judge was sold by the guardian. It appears to us that the view that we are taking is not in conflict with the view taken in the case of Kishori Ramanji Maharaj v. Duly Ram A.I.R. 1924 All. 474. In the present case we are unable to hold that the condition that was imposed by the District Judge, and was not complied with by the guardian, was a condition precedent and not a condition subsequent. The condition that the District Judge imposed was that proof of payment of the debts should be submitted to him. Obviously the debts could only be paid by the consideration for the sale deed, and that consideration could only come into the hands of the guardian by executing the sale-deed in favour of the defendant. It is clear, therefore, that proof of payment could not be submitted before the District Judge until the sale-deed had been completed. Therefore, in our judgment, the condition as regards the filing of proof of payment of the debts was a condition subsequent and the failure of the guardian to comply with that condition cannot affect the validity of the sale-deed in favour of the defendant-appellant.

11. We may note in pasting that, as a matter of fact, proof of payment of the debts was filed by Mt. Kelo, along with the application that she made to the District Judge on the 1st September 1916. For the reasons given above, we hold that the rights of the case were entirely with the defendant and not with the plaintiffs. Accordingly we allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiffs' suit with costs in all Courts.


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