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Mt. Saidunnisa Vs. Mt. Ruqya and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1931All307
AppellantMt. Saidunnisa
RespondentMt. Ruqya and ors.
Cases ReferredAmbika Charan Kundu v. Kumud Mohun Chaudhury
Excerpt:
.....and attained majority well within three years of the suit, and that in any case according to the certificate of guardianship that was granted by the district judge she attained majority on 19th december 1921, which would also bring her suit within time. oral as well as documentary evidence was adduced on both sides. walan bibi as well as her witnesses muhammad azhar, abdul aziz, muhammad raza, abdul abbas, abdul haq, saiyed hasan and wari husain. it is on this ground that we reject the extracts produced by the plaintiff as well as by the defendant from the birth registers, one showing that she was born on 4th june .1908, and the other that she was born on 2nd april 1900. in our opinion those birth registers are inconclusive. we have already mentioned that we are satisfied that this is..........her two children. the district judge by an order dated 9th may 1908 appointed her the certificated guardian. a certificate was issued to her in due course.3. on 2nd march 1909 an agreement for reference to arbitration of three persons was signed by the widow mt. walan bibi on her behalf and as guardian of her minor daughter and also by nurul-hasan, the brother of the deceased, as well as other heirs. the arbitrators delivered their award on 4th march 1909 under which the estate was divided among the various claimants, a share being assigned to the plaintiff mt. saidunnisa, who had been impleaded under the guardianship of her own mother. this award was followed by an application for its being filed on 6th march 1909 accompanied by an application for permission to file it on behalf of the.....
Judgment:

Sulaiman, J.

1. This is a plaintiff's appeal arising out of a suit for recovery of possession of 28 out of 160 sihams in the estate of her deceased father. She is one of the daughters of the late Syed Ali Hussain Khan, who died on 8th March 1926. The deceased had his legally wedded wife Valan Bibi from whom he had two daughters who survived him. He also had a muta wife, Bandi Bibi, from whom he had one son and one daughter. Admittedly the plaintiff's share in his estate would be 28 out of 160 sihams.

2. Mt. Walan Bibi applied to the District Judge for being appointed the guardian of the persons and properties of her two children. The District Judge by an order dated 9th May 1908 appointed her the certificated guardian. A certificate was issued to her in due course.

3. On 2nd March 1909 an agreement for reference to arbitration of three persons was signed by the widow Mt. Walan Bibi on her behalf and as guardian of her minor daughter and also by Nurul-Hasan, the brother of the deceased, as well as other heirs. The arbitrators delivered their award on 4th March 1909 under which the estate was divided among the various claimants, a share being assigned to the plaintiff Mt. Saidunnisa, who had been impleaded under the guardianship of her own mother. This award was followed by an application for its being filed on 6th March 1909 accompanied by an application for permission to file it on behalf of the minor. The Court granted the permission to file the award stating that it was for the benefit of the minor. The award was duly filed and made a decree of the Court on the same day.

4. The plaintiff instituted the present suit on 20th November 1924 on the allegation that she had been born in June 1903 and attained majority well within three years of the suit, and that in any case according to the certificate of guardianship that was granted by the District Judge she attained majority on 19th December 1921, which would also bring her suit within time. She sought to avoid the decree passed on the basis of the award on the ground that Nurul-Hasan had obtained the agreement for reference to arbitration fraudulently by exercising undue influence on her mother and that the award delivered by the arbitrators was illegal and prejudicial to the rights of the plaintiff and was in-effectual. In substance she sued to recover possession of her share by avoidance of the decree dated 6th March 1909.

5. The claim was resisted principally by Nurul Hasan on the ground that the plaintiff had attained majority more than three years before the suit and her claim was barred by time. It was also pleaded that her mother had full authority to refer the dispute to arbitration, and the award and the decree based upon it were binding on the plaintiff. It was further pleaded that part of the property claimed by the plaintiff, is, being a portion of the assets of the deceased, did not belong to Sayed Ali Husain at all.

6. The learned Subordinate Judge has found that the plaintiff attained majority more than three years before the suit and her claim was therefore barred by time. He has further found that the reference to arbitration was justified as there was a bona fide dispute between the parties based on an oral will of the deceased which had been set up by Nurul-Hasan. As regards most of the items of the properties he has found that they were part of the assets of the deceased, but as regards same items his conclusion is that they did not belong to him. As regards one item, viz., Taluqa Suri, his finding is that the property had been purchased with the money belonging to Sayed Ali Hussain, but that it was purchased for the benefit of the two minors in whose names the sale deed stood.

7. The plaintiff has come op in appeal challenging the findings of the learned Subordinate Judge.

8. There can be no doubt that a Muslim mother who assumes the position of a da facto guardian of her minor child has no power to transfer his property and such a transfer is not only voidable but void: Imambandi v. Mutsaddi A.I.R. 1918 P.C. 11. The learned advocate for the appellant contends that the same principle applies to a reference by a Muslim mother to arbitration and relies on the cases of Mohsiuddin Ahmad v. K. Ahmad [1920] 47 Cal. 713; Muhammad Jamil Ata v. Mohammad Hafiz Ata A.I.R. 1928 Oudh 449 and Ameer Hasan v. Mohammad Ejaz Husain A.I.R. 1929 Oudh p. 134. In none of these cases however the mother who referred the dispute to arbitration was the certificated guardian duly appointed by the Court, nor does it appear that she was the legal guardian of the minor under the Mahomedan law. In these cases there was a further distinguishing feature that the award had not terminated in a decree of the Court to which the minor had been made a party.

9. Conceding that a Muslim mother is disqualified from dealing with the property of her minor child, there can be no doubt that certain powers have been conferred upon her under Section 27, Guardians and Wards Act, when she is duly appointed a certificated guardian. Under Section 27 a guardian is entitled to deal with the property of the minor as a man of ordinary prudence would deal with it if it were his own and may do all acts which are reasonable and proper for the realization, protection or benefit of the property.

10. Section 29 however contains an exception which restrict shis power by compelling the guardian to obtain the previous sanction of the Court before mortgaging, charging, transferring by sale, gift, exchange or otherwise any part of the immovable property of the ward or leasing it for a term exceeding five years. There is no prohibition against the guardian's referring a dispute, in which the minor's property is involved, to arbitration. In this sense it could be said that Mt. Walan Bibi was not disqualified from signing the agreement for the reference to arbitration as the guardian of her minor daughter. At the same time she could have approached the District Judge and asked for his opinion, advice or direction on this matter! under Section 33 of the Act. We think that! it was the most prudent, reasonable and proper course for her to adopt when the minor's property was in dispute. It was an unwise act on her part to submit to the arbitration of private individuals, the result of which might be to cause serious prejudice to the minor and jeopardize her property. Although therefore Mt. Walian Bibi had authority to represent the minor as her guardian she did not act in a prudent manner in referring the dispute to private arbitration without previous reference to the District Judge. In this way there was an irregularity.

11. When the award was filed in Court permission was obtained from the Court that the award should be filed inasmuch as it was for the benefit of the minor, but in that proceeding the present plaintiff was represented by her mother acting as bar guardian ad litem. The plaintiff is now impugning the act of her own mother and challenging her authority to refer the dispute to arbitration. She was therefore not properly represented in the proceeding for the filing of the award, when the only person who could look after her interest' was her own mother whose act she is challenging. The attention of the Court does not appear to have been expressly directed to the fact that no previous permission of the District Judge had been obtained for the reference. We therefore think that there was an irregularity in the appointment of the guardian at the time, who did not properly represent the minor.

12. The learned advocate for the appellant (contends that the decree was a nullity because the reference was unauthorized. We are not prepared to accede to this contention. The decree is at most only 'voidable on account of the irregularity, in the omission to appoint a proper guardian. Such a voidable decree can be set aside by the minor provided she comes within three years of the attainment of her majority and provided further that she satisfies the Court that her interest has been prejudiced: Walain v. Banhe Behari Pershad Singh [1903] 30 Cal. 1021. The learned advocate for the respondents has urged that inasmuch as limitation for Mt. Walan Bibi's claim for dower was about to expire she was compelled to refer the dispute to arbitration. It is also urged that the oral gift set up on behalf of the minor was doubtful as there was no registered document in evidence and there had been no mutation of names. As against this it may be said that the oral will set up by the defendant was invalid for want of consent of the minor heirs. The claim for dower was a personal claim of the lady herself which did not directly concern the minor. We therefore think that the mother did. not act prudently in referring the dispute to arbitration without previously approaching the District Judge.

13. It follows that the plaintiff would be entitled to have the case reopened provided she can show that she has come to Court within three years of her attaining majority and that she has been really prejudiced by the award.

14. The finding of the Court below on the question of minority is against the plaintiff. The case put forward in the plaint was that she was born in June 1903. This case was adhered to at the trial. On the other hand the defendant took up the position that she had been born in April 1900. Both parties adhered to their respective cases at the trial. Oral as well as documentary evidence was adduced on both sides. On behalf of the plaintiff there was the evidence of the plaintiff herself and her mother Mt. Walan Bibi as well as her witnesses Muhammad Azhar, Abdul Aziz, Muhammad Raza, Abdul Abbas, Abdul Haq, Saiyed Hasan and Wari Husain. As against this oral evidence the defendant Nurul Hasan examined himself and also produced Zulfiqar Husain, Hasan Askari, Kazim Husain, Ali Muhammad and Muhammad Husain. The learned Subordinate Judge who heard the plaintiff's witnesses has rejected their testimony. Both the plaintiff and her mother are interested and not independent witnesses. The other witnesses are not near relations. We find it difficult to believe that these witnesses were able to remember the exact year of the birth of a girl who was the younger daughter of a friend or acquaintance. There are various discrepancies in their evidence, but as we are agreeing with the Court below that their testimony is not worthy of credit it is not. necessary for us to examine their evidence in detail afresh. It is quite sufficient for our purpose to say that we are not prepared to hold that by this oral evidence the plaintiff has succeeded in establishing that she was born in 1903.

15. We shall refer presently to one piece of documentary evidence which, in concurrence with the Court below, we accept, and which destroys the case that. she was born in 1903.

16. A similar criticism may be made against the oral evidence produced on behalf of the defendant. The defendant Nurul Hasan himself is an interested person and his other witnesses are in the same position as the plaintiff's witnesses and would not be able to estimate correctly the exact age of the plaintiff.

17. Both parties produced copies of entries in birth registers showing that on certain dates daughter was born to Ali Husain. In the evidence it was disclosed that there were several persons of the name of Ali Husain in Mohalla Moghalpura in the city of Fyzabad. The same may be said as regards the ancestral village. We therefore find it very difficult to accept such entries in the birth registers as establishing the identity of Ali Husain named therein with the lather of the plaintiff. A mere entry that a daughter was born to a certain Ali Husain, without stating that he was the vakil of Fyzabad which might have identified him, is wholly insufficient to prove the birth of the plaintiff. It is on this ground that we reject the extracts produced by the plaintiff as well as by the defendant from the birth registers, one showing that she was born on 4th June .1908, and the other that she was born on 2nd April 1900. In our opinion those birth registers are inconclusive.

18. There is however a sheet containing an account of expenses which is printed on p. 145, which is said to be in the handwriting of Abdul Hasan who died long ago. It has been accepted by the Court below as a genuine document. It was suggested that there was some difference in the ink, pen and writing appearing on this paper. We however do not find anything which can show that this evidence is a forgery. In fact no suspicion attaches to it. We agree that this must be accepted as a genuine slip of account of certain articles which were purchased at the time of the marriage which took place about February 1902. In this, at no loss than three places, it is stated that some articles wore purchased for Saddan Bibi.

19. The plaintiff's pairokar fully realized the significance of these entries and put forward the case that the plaintiff was never known by the name of Saddan, said to be her pet name. The plaintiff herself stated that she was never called by the name of Saddan; she said that Saddan was the pet name of a relation of hers named Safdari. The plaintiff's mother, Mt. Walan Bibi, said the same thing. But we find that in a document dated 14th July 1910, executed by the plaintiff's own mother for herself and as the guardian of her minor daughter, the present plaintiff, she described her daughter as Mt. Saddan (p. 247). We also find that; Muhammad Husain and Imtiaz Ali, witnesses for the defendant, pleaders have also stated that the pet name of the younger daughter of Saiyed Ali Husain was Saddan. It is therefore obvious to us that the story put forward on behalf of the plaintiff was false and that the girl referred to in this account was the plaintiff Saidunnissa herself for whom some clothes were made in February 1902. This demonstrates that the entry in the birth register of 1903, cannot possibly refer to her. We have already mentioned that we are satisfied that this is a genuine document and therefore destroys the plaintiff's case.

20. The burden of proving that the plaintiff attained her majority within three years of the suit undoubtedly lies on her. The only evidence that remains for consideration is the certificate of guardianship issued by the District Judge to Mt. Walan Bibi when she was appointed the plaintiff's certificated guardian. The application of Mt. Walan Bibi is printed on p. 192, the certificate in original is on p. 197. According to the application she was born on 19th December 1900 and was about eight years of ago on 5th February 1908. The states that her minority till 19th December 1921.

21. The question before whether this certificate is by itself admissible in evidence; and secondly whether it is of any value so as to discharge the burden.

22. It was held in Satish Chandra Mukhopadhya v. Mahendra Lal Pathak [1890] 17 Cal. 849 that, as the Guardians and Wards Act did not require the District Judge to draw up a certificate, such a certificate was no evidence of minority under Section 35, Evidence Act. This case was followed by this High Court in the case certificate also would continue us is that first, of guardianship of Gunjra Kuar v. Ablakh Pande [1896] 18 All. 478. Since then there has been no reported case of this High Court where a certificate of guardianship has been held to be admissible.

23. These cases have recently been criticized adversely by the Oudh Chief Court in Maqbul Husain v. Estate of Ch. Shafiq-uz-zaman, A.I.R. 1926 Oudh 28, and Ameer Hasan v. Mohammad Ejaz Husain A.I.R. 1929 Oudh 134. It was supposed by the learned Judges of Oudh that in the previous cases referred to above it was overlooked that there were High Court rules under which the District Judge was directed to issue certificates of guardianship. What was overlooked by the learned Judges themselves was that these cases were eases under Act 40 of 1858 and not under the Guardians and Wards Act of 1890, and in the former Act there was no provision similar to that contained in Section 50 of the later Act under which the High Court can make rules directing the District Judge to issue such certificate.

24. The view taken by the learned Judges in Oudh is that inasmuch as the rules require the District Judge to issue a certificate of guardianship, such certificate is a public or official record within the meaning of Section 35, Evidence Act, and is therefore admissible in evidence.

25. The question has recently come up for consideration before the Patna and the Calcutta High Courts, and they have adhered to the opinion previously expressed that such a certificate is not admissible: Harihar Prasad Singh v. Babu Edul Singh [1920] 5 Pat. L.J. 460 and Gur Pershad Singh v. Dhori Rai [1911] 38 Cal. 182. Ambika Charan Kundu v. Kumud Mohun Chaudhury : AIR1928Cal893 . Although the District Judge issues a certificate of guardianship there is no rule requiring him to maintain any official book, register or record containing a copy of this (certificate. It is well known that there is no investigation by the Judge as to the exact date of the birth of the minor and all that he is to be satisfied with is that the minor who is alleged to be a minor is in fact a minor. If there was any public or official book, register or record only a certified copy of it would be issued be the guardian and the original maintained by the Judge. This is not the case. The original certificate itself was issued to the guardian, and it is the original certificate which has been produced in the present case which embodies the order passed by the District Judge for the grant of the certificate. We therefore find it very difficult to hold that this was a public or official record in which an entry was made by a public servant in the discharge of his official duty, within the meaning of Section 35, Evidence Act. We agree with the view expressed by the Calcutta and Patna High Courts that in spite of the fact that such certificates are now issued under the authorities of the rules framed by the various High Courts, they are nevertheless inadmissible in evidence because they are not public or official book, register or record in which an entry is made by a public servant in discharge of his official duty. What Section 35 apparently contemplates is that an entry should have been made by an officer whose duty it is to make such an entry after having been satisfied as to its correctness. We therefore hold that the certificate by itself is not admissible in evidence.

26. We are however of opinion that even if the certificate of guardianship were admissible as a piece of evidence it is of no value. As pointed out above, the plaintiff's case was not that she was born in December 1900 but that she was born in 1903. That case has broken down; furthermore the plaintiff's mother was examined in this case and she also stated that the year of her daughter's birth was 1903. She has thus attempted to destroy the effect of the year of her birth given by her in her application for the appointment of a guardian. On the case put forward by the plaintiff herself the date 19th December 1900 as entered in the certificate was wrong. She therefore cannot turn round and rely upon it. But even if she were allowed to do so her admission that the date of her birth was the 6th of Rabiulawal would again stand in her way. The plaintiff has stated that there is a birthday ceremony of hers performed every year and it is on account of this annual ceremony that she remembers that she was born on 6th Rabiulawal. The statement of her mother also corroborated her. It is thus clear that although there can be a mistake as regards the exact year of her birth there can be no mistake as regards the date of the lunar month. According to her it was the month of Rabiulawal. A reference to the calendar shows that Rabiulawal in the year 1900 fell in June and not December. There is therefore every reason to believe that the 19th December which was put down as the date of her birth in the application and which was repeated in the certificate, was put down approximately without any regard to strict accuracy.

27. In order to bring her claim within time the plaintiff has to prove that she was not born earlier than November 1900. The margin is too small. If she was born in Rabulawal she was undoubtedly born before that month. We also note that as the exact age of a minor is not so important at the time, particular care is not taken to put it down accurately in the application for guardianship. In view of all these circumstances, we are unable to hold that the plaintiff can be said to have discharged the burden of proof that lay on her by the production of this certificate of guardianship.

28. We accordingly confirm the finding of the Court below that the suit was brought more than three years after the attainment of her majority. In this view of the matter the suit was rightly dismissed.

29. We may however point out that we are not satisfied with the finding of the Court below as regards taluka Suri. It was not the defendants' case in the written statement that this property had been purchased by Saiyed Ali Husain out of his own money for the benefit of the two minors Abbas Husain and Muhibul Hasan in whose names the sale dead was taken. On the other hand, it was expressly pleaded in para. 22 of the written statement that these minors were the real purchasers themselves and that Saiyed Ali Hasain never had any connexion with all these properties. The learned Subordinate Judge has found that the money for acquiring these properties came from the funds of Saiyed Ali Husain, that the incumbrances were discharged by Saiyed Ali Husain out of his own income and that Government revenue is shown to have been paid by the same man out of his own funds. He is therefore right in concluding that, in the absence of proof that the money was supplied by the minors, it was established that Saiyed Ali Husain had purchased Suri property. He has gone on to hold that the property was acquired for the benefit of the two minors. Abhas Husain was the minor son of Ali Husain who had daughters also and Muhibul Hasan was Ali Husain's brother's son. The only evidence in support of the theory that the purchase was made for the benefit of these minors from the very outset is the statements of witnesses who are not independent. Nurul Hasan is the defendant who says so and Kazim Husain, the maternal uncle of Muhibul Hasan, has also said the same thing. There is also the statement of Mr. Imtiaz Ali that the deceased stated to him that the property belonged to these minors. This evidence in our opinion is not strong enough to establish that at the time when the property was purchased Ali Husain intended that it should not belong to him but should belong to the minors; and there is no presumption of advancement in India and the defendant has not established by any reliable and independent evidence that the property was acquired for the benefit of the minors. As pointed out above no such case was put forward in the written statement and a new case should not have been made out by the Court below.

30. We would therefore have been inclined to decree the plaintiff's claim with regard to this item, if her suit were within time.

31. The result is that the appeal is dismissed with costs.


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