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Kaiser Parvez and Etc. Vs. Abdul Majid and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal Nos. 855, 858 of 1972
Judge
Reported inAIR1982All9
ActsMuslim Law; Guardians and Wards Act, 1890 - Sections 29; Code of Civil Procedure (CPC) , 1908 - Sections 100 and 101
AppellantKaiser Parvez and Etc.
RespondentAbdul Majid and ors.
Appellant AdvocateKamni Mohan, Adv.
Respondent AdvocateA.S. Srivastava and ;Shitla Prasad, Advs.
DispositionAppeals dismissed
Excerpt:
.....defendants-respondents cajoled him by means of blandishments to execute the sale deeds of the plaintiffs'..........in dispute in favour of the two appellants. mohammad yasin. acting as natural guardian of the minor plaintiffs, executed two sale deeds in favour of the defendants-respondents. each of the sale deed was executed on january 29, 1964. 3. the case of the plaintiffs-appellants was that mohammad yasin suffered from some abdominal ailment and he was hospitalised on january 8, 1964. a major operation was performed on mohammad yasin in connection with his ailment and he was discharged from the hospital on january 27, 1964. he was very weak and the defendants-respondents cajoled him by means of blandishments to execute the sale deeds of the plaintiffs' property. it was also stated that mohammad yasin was also unconscious at the time of the execution of the sale deeds and it was only after.....
Judgment:

S.J. Hyder, J.

1. These are two connected Second Appeals which are directed against the judgment and decree of the Civil and Sessions Judge, Gyanpur, passed in Civil Appeal No. 10 of 1968 and Civil Appeal No. 11 of 1968.

2. It is not in controversy that As-lam Parvez and Kaiser Parvez, one of whom is appellant in Second Appeal No. 855 of 1972 and the other is in the Second Appeal No. 858 of 1972, are real brothers. The name of their father was Mohammad Yasin. The suits had been filed by both the plaintiffs-appellants under the guardianship of their mother Smt. Roohunnisa. Abdul Razzaq was the grandfather of the plaintiffs-appellants. He gifted the properties in dispute in favour of the two appellants. Mohammad Yasin. acting as natural guardian of the minor plaintiffs, executed two sale deeds in favour of the defendants-respondents. Each of the sale deed was executed on January 29, 1964.

3. The case of the plaintiffs-appellants was that Mohammad Yasin suffered from some abdominal ailment and he was hospitalised on January 8, 1964. A major operation was performed on Mohammad Yasin in connection with his ailment and he was discharged from the hospital on January 27, 1964. He was very weak and the defendants-respondents cajoled him by means of blandishments to execute the sale deeds of the plaintiffs' property. It was also stated that Mohammad Yasin was also unconscious at the time of the execution of the sale deeds and it was only after some time that he came to know that he had been made to execute the sale deed. It was further stated that the Sub-Registrar of Bhadohi was in collusion with the defendants-respondents and acted as their tool in registering the documents. It was pleaded that the plaintiffs-appellants were Bhumidhars of the land covered by the two sale deeds and their father and natural guardian had no right to transfer their Bhumidhari rights in the land in favour of the defendants-respondents without obtaining the sanction of the court Mohammad Yasin. father of the plaintiffs-appellants, was also impleaded as a defendant in the two suits.

4. In his written statement, Mohammad Yasin supported the case of the plaintiffs-appellants. On the other hand the contesting defendants-respondents filed a joint written statement in the two suits. They traversed the allegations made by the plaintiffs in the suit and raised a number of pleas in their defence.

5. The trial court framed a number of issues on the pleadings of the parties. It decided all the material issues against the plaintiffs-appellants and in consequence dismissed their suit. The first court of appeal affirmed the findings recorded by the trial court and refused to grant any relief to the plaintiffs-appellants, It is, in these circumstances, that the plaintiffs-appellants have approached this court by filing two separate second appeals.

6. Suffice it to say that the two courts below have decided against the plaintiffs-appellants on the questions of fraud and undue influence, They have also held that there was no evidence worth the name on the record to sustain the allegation that there was any collusion between the contesting defendants-respondents and the Sub-Registrar, Bhadohi, They have also found it as a fact that Mohammad Yasin was hospitalised on January 8, 1964 and was discharged from there on January 27. 1964. They have held that he executed the sale-deeds in favour of the contesting defendants-respondents after understanding the nature of the transaction. It has further been held that Mohammad Yasin being the natural guardian of his sons, who are the appellants before this court, was fully competent to execute a sale deed of the property belonging to the appellants and it was not necessary for him to obtain any permission from the Court. As a result of the above findings, the two courts below have come to the conclusion that the sale deed executed by Mohammad Yasin as guardian of plaintiffs-appellants in favour of contesting defendants-respondents on January 29, 1964 was legal and binding and could not be called in question.

7. Learned counsel appearing for the appellants in the connected appeals has strongly contended that Mohammed Yasin had no unrestricted power to alienate immovable properties of minor plaintiffs-appellants. He could dispose of the said property only in certain circumstances recognised under the Mohammedan Law. In that connection, he invited my attention to paragraph 382 of Mulla's Mohammedan Law, 15th Edition and certain other authorities to which I shall presently refer. However, before dealing with the submission of the learned counsel, it is appropriate to refer to certain salient features of Mohammedan Law relating to guardianship which have a bearing on the discussion which shall presently follow.

8. Mohammedan Law makes a distinction between guardians of persons and guardians of property, in the instant case we are not concerned with the guardianship of persons and have to focus our attention only to the law relating 1o guardianship of property, Anglo-Mohammadan Law recognises two principal kinds of guardianship. In the first category falls the natural guardian and they include (1) father (2) the executor appointed by the father's will (3) the father's father and (41 the executor appointed by the Will of the father's father. The right of legal guardianship accrues in accordance with the order of precedence given above. Another thing to be noted in this connection is that the legal guardians mentioned at items 2 and 4 above can only be appointed in respect of what is known as 'Yatime Saghir' (orphaned minor). The rights of a guardian appointed by a court to alienatethe property belonging to a minor are governed by the provisions of Guardians and Wards Act. In so far as the right of a legal guardian to alienate the property the Law is stated by Mulla in paragraph 362 of his book on Mohamma-dan Law, 15th Edition, in the following words :

'362. Alienation of immovable property by legal guardian -- A legal guardian of the property of a minor has no power to sell the immovable property of the minor except in the following cases, namely; (1) Where he can obtain double its value; (2) Where the minor has no other property and the sale is necessary for his maintenance; (3) Where there are debts of the deceased and no other means of paying them. (4) Where there are legacies to be paid, and no other means of paying them; (5) Where the expenses exceed the income of the property. (6) Where the property is falling into decay; and (7) When the property has been usurped and the guardian has reason to feel that there is no chance of fair restitution.'

9. Incidently it may also be pointed Out that another category of guardians have also come to be recognised under Anglo-Mohammadan Law and they are euphemistically called as de facto guardians, A de facto guardian is a person who is not a legal guardian nor a guardian appointed by the court but has placed himself voluntarily in charge of the person and property of the minor,

10. Learned counsel for the appellants referred to the cases of Imambandi v. Mutsaddi, (1918) 45 Ind App 73 : (AIR 1918 PC 11), Mahommed Ejaz Hus-sain v. Mohommed Iftikhar Hussain , Mt. Anto v. Mt. Reoti Kuer : AIR1936All837 and Mrs. Eishu Chugani v. Rang Lal Agarwala, : AIR1973Cal64 in support of his contention. All these cases are, however, distinguishable. All that has been held in the said cases is that a de facto guardian had no right to alienate the immovable property of a minor or to refer a dispute on behalf of the minors to arbitration.

11. Finally the learned counsel has referred to the case of Asafuddula Beg v. Ram Ratan : AIR1940All74 , In this case, Thom, C. J. stated law in the following words:--

'The legal guardian of a Mohammedan minor is not entitled to alienate the property of the minor except in certain cases. The property may be alienated by the guardian where the minor has no other property and the sale is necessary for his maintenance.'

12. In that case the sale deed itself recited that the sale was being effected for the purposes of providing education to the minor. In spite of making the said observation, the Chief Justice did not accept the contention advanced on behalf of the appellants of that case on the ground that the case relating to the minority of the person concerned had not been taken in the written statement filed on his behalf,

13. The result of the foregoing discussion is that we are left only with the authority of Mulla's Mohammedan Law. The case has to be viewed in the light of the second condition contained in paragraph 362 quoted above. Learned counsel urged that the minors had other agricultural property and as such Mohammad Yasin was incompetent to execute the sale deed in accordance with the second condition of paragraph 362 from Mulla's Mohammedan Law. Carried to its logical conclusion, the argument urged on behalf of the appellants, appears to be that if a minor possesses more than one property, his legal guardian is incompetent to alienate any of the properties possessed by the minor. It is true that Exts. 5, 6, 7 and 3 go to show that the minors did possess some agricultural property besides the property alienated by Mohammad Yasin as their legal guardian. However, the contention of the learned counsel for the appellants in the form stated by him cannot be accepted. The interpretation placed by him on the second condition enumerated in paragraph 362 of the Mohammedan Law is patently erroneous.

14. On a proper reading of the second condition, the emphasis is on the maintenance of the minor. If the minor possesses even a single item of property, which is sufficient for his maintenance, the legal guardian would not be authorised to transfer the same in accordance with the said condition on the other hand if a minor possesses small items of a number of properties, the total income of which is wholly inadequate to meet his expenses, any one item of the property sale proceeds of which are sufficient for his main-tenance can be legitimately transferredby the legal guardian and such transfer would be binding on him.

15. The last court of facts has found that Mohammad Yasin was carrying on cloth business which had stopped on account of his illness. He restarted the said business after alienating the property of his minor sons who are appellants before this court, Mohammad Yasin himself entered the witness box and stated that stock worth about Rs. 12,000/- was present at the shop at the time of his discharge from the hospital. His statement has been disbelieved by the first court of appeal. The court of appeal has, therefore, come to the conclusion that the income earned from the business of the cloth shop was necessary to maintain the minors and that the sale proceeds of the property of the minors were invested in the said business. The findings recorded by the court of appeal on this point are findings of fact which cannot be called in question. I, therefore, find no merit in the two second appeals.

16. The result is that the second appeals are hereby dismissed with costs.


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