1. This appeal has been preferred against the judgment and decree of the learned Extra Assistant Judge. Baroda dismissing civil appeal No. 49 of 1965 and confirming the judgment and decree passed by the learned 6 th Joint Civil Judge, Junior Division. Baroda in Regular Civil Suit No. 1379 of 1962.
2. The facts giving rise to this appeal briefly stated are as under:--
The suit property bearing survey number 445/3 admeasuring 7238 1/2 sq. ft. situated in Baroda, Sayaji Ganj ward belonged to one Pathan Sidukhan Pirkhan who is the father of the plaintiff and defendant No. 3. In part of this property admeasuring about 1568 sq. ft. there were two house with Orda. Parshal, kitchen, etc., and were described as city survey number 45/12 and 45/13. Sidukhan dies on 25-11-1950 leaving behind him his widow Bai Nurbibi and one minor daughter named Dhabu alias Memudabibi and one minor son named Kalu alias Imam Khan. Under the Mohamedan Law. the shares of plaintiff was 42/3 annas in a rupee and the share of defendant was 9 1/2 annas in a rupee while Nurbibi had 91/3 annas in a rupee while Nurbibi and 2 annas share in a rupee. All or them thus held the property as tenants in common as the heirs of the said Sidukhan. It transpires that defendant Nos. 1 and 2 obtained a decree for Rs. 4,600/- with running interest at 4% on the principal amount of Rs. 4,022/- on 1-7-1952 against Bai Nurbibi and also against the minor wherein Nurbibi was appointed as guardian-ad-litem by the court. After this decree was obtained by defendants Nos. 1 and 2 Nurbibi executed a sale deed Ex. 40, dated 11-2-1953 in their favour under which the suit property admeasuring 1568 sq. ft containing a house was sold to them. Pursuant to the said transaction. defendant Nos. 1 and 2 entered into possession of the suit property. Nurbibi died on 21-2-1959 Subsequently. Bai Dhabu alias Memudabibi on attaining majority filed a suit against defendant Nos. 1 and 2 for a declaration the Nurbibi had on right to sell their share in their immovable property inherited by them from their father and that the said sale was not binding on them. The plaintiff therefore, claimed partition of the of the suit property and for physical possession of her share. Defendant Nos. 3 Kalu alias Imamkhan was added in that suit who was represented by his guardian ad litem Ibrahim. During the pendency and of the suit defendants Nos,. 1 and 2 sold the property to tone Gangaben and Madhuben and hence they were also joined as defendant Nos. 4 and 5. Defendants Nos. 1 and 2 by their written statement Ex. 12 raised several contentions. According to them. the suit was beyond limitation . They contended the decree in Regular Civil Suit No. 306/61 was passed against both the minors and their mother for Rs. 4,6000/- with costs and interest which the came to Rs. 5,400/- and in consideration of the said amount and in consideration of Rs. 4,599/- which were paid in cash, the sale transaction Ex. 40 was effected: that as the debt for which the decree was obtained was incurred by the deceased Sidukhan it was binding on the estate of the deceased and hence, the sale transaction which was effected by Nurbibi for satisfying the said decretal amount was binding not only no Nurbibi but on the minors. They contended the Nurbibi was the administratrix of the property of the deceased and in such a capacity she had executed the sale deed to satisfy the debt of the deceased and hence, it would be binding on the minors. In the alternative, they contended that Nurbibi had a right to sell 1/8th interest in the estate of the deceased and the property covered by the sale deed being less then 1/8th of the value of the total property of the deceased the transaction was valid and was binding on the minors. It was contended that they had defected improvement to the tune of several thousands of the rupees and therefore, the plaintiff would not be entitled to recover possession of the property unless the said amount was paid. Defendant No. 3 accepted the averments made by the plaintiff by his written statement Ex. 17 and prayed for possession of his share equal to 9 1/3 annas in a rupee in the suit property on partition. Defendants Nos. 4 and 5 by their written statement Ex. 26 adopted the written statement by defendant Nos. 1 and 2 for the pleadings of the parties the learned trial Judge framed the issues at Ex. 18. The learned trial Judge held that the suit was maintainable; that it was not barred by limitation; that it was not bared by limitation; that the sale was not binding on the minors and therefore he passed as decree for partition of the suit property and for a separate possession by plaintiff and defendant Nos. 3 on the payment of Rs. 2,916-37 paise with 6% interest by from the date of judgment by the plaintiff and Rs. 5,832-76 paise with 6% interest by defendant Nos. 3 to defendant Nos. 1 and 2. The court also held that plaintiff to mesne profits for their share in the suit property from the date of the judgment till recovery of possession. Against the said judgment and decree, an appeal was preferred in the district court. Baroda which was heard by the learned Extra Assistant Judge. Baroda who dismissed the same and confirmed the judgment and decree of the trial Court. Against the said judgment and decree of the learned Extra Assistant Judge, Baroda, defendants Nos. 1, 2, 4 and 5 have preferred the present appeal to this court.
3. Miss. V. P. Shah appearing for Mr. N. r. Oza learned Advocate fro the appellant raised the following points-
1. That Nurbibi having sold 1/8th share of survey number 445/3 which could be treated as sale of her share, the suit for possession and partition of the property sold was not maintainable;
2. That the plaintiff and defendant No. 3 having taken benefit out of the sale consideration and having earned the rent from the new construction, were estopped from challenging the sale;
3. The estate of the deceased could not be partitioned before the debt of the deceased is paid off.
4. The sale being effect of payment of debt under a decree, was binding upon the minors and it cannot be challenged as being void or unauthorised;
5. The defendant were entitled to the sum spent towards the improvement of the property.
In order to appreciate the submissions made by the learned Advocate fro the appellants, it would be worthwhile to consider the provisions of the Mahomedan Law with regard to the sale of immovable property of the minor by a person other that guardian of the minor. It may be noted that the heirs of the deceased Mahomedan held the property left by the deceased as tenants in common in specific share. Thus one of the several co-owners had not right to alienate the share of the other co-owners even for the purpose of discharging the debts of the deceased. Mulla in his principles of Mahomedan Law. 16th Edition at page 40 has made the following observations:--
'One of several heirs of a deceased Mahomedan though he may be in possession of the whole estate of the deceased. has no power to alienate the shares of his co-heirs, not even for the purpose of discharging the debts the of the deceased. If he sells or mortgages and property in the possession forming part of the estate of the deceased though it may be for payment of the debts of the deceased such sale of mortgage operates as a transfer only of his interest in the property. It is not binding on the other heirs or the other creditors of the deceased. The transferor of course, is. in his turn, entitled to obtain contribution from his co-heirs'.
In the instant case admittedly the present plaintiff and defendant No. 3 were minors at the time of the death of Sidukhan. Under the Mahomedan Law. Nurbibi was not the guardian of the property of the minors. Nurbibi, therefore had not authority to alienate in the interest of the minors in the property left by the deceased. As observed by the learned about referred to earlier. Nurbibi had not power to alienate the share of the minors even for the purpose of discharging the debts of the deceased. Thus, the present sale transaction Ex. 40 entered into by her for the purpose of the making payment of dues under the decree obtained by defendants No. 1 and 2 against Bai Nurbibi and the minors for the debts of the deceased was clearly unauthorised and she could not alienate the interest of the minors in the immovable property and any such alienation would be valid only to the extent of Nurbibi's share in the property alienate and the sale transaction would not be binding on the minors. Miss Shah, however, urged that the transaction would not be invalid or void and at the most it would be voidable. She submitted the if Nurbibi for a lawful purpose had executed the sale transaction not one behalf of herself only but on behalf of the minors, the sale transaction would be binding on the minors for the simple reason that they had benefits by the act of Nurbibi. I am unable to agree with her. It is immaterial whether the minors have benefits or not. The question is whether Nurbibi had any authority to alienate the share of the minors in the immovable property inherited by the from the father. In my opinion. Nurbibi cannot do so and her act being unauthorised would be illegal and invalid. In the case of Pathumabi v. Vittil Unimachabi, (1903) ILR 26 Mad 634, it was observed by the Division Bench that--
'According to the Muhammadan Law the widowed mother is not the legal guardian of the property of the minor children and cannot so do any act relating to their property so as to bind them and a seal or mortgage by her cannot, as such, bind the minor children,. Though she may be a co-heir with her minor children in respect of the property dealt with the Muhammadan law (unlike the Hindu law) does not constitute the senior co-heir the managing coparcener, entitled to administer and manage the estate until partition. Alienations by such a widow cannot therefore be upheld by extending to Muhammadans the principle of Hindu law applicable on the acts of a guardian or managing members of the family'.
The same view was taken by the Bombay High Court in the case of Bhikaji Ramchandra v. Ajagarally Sarafally, 47 Bom LR 803 = (AIR 1946 Bom 57 ) wherein the Division Bench made the following observations:--
'Where a Mahomadan widow, after obtaining the leave of the Executing court under the Order XXXII, Rule 7 of the Civil Procedure Code. 1908, executes a sale deed in the favour of the mortgagee who had obtained a decree for the sale of the land which was mortgage by her deceased husband, on behalf of herself and as guardian ad litem of her minor daughter the sale deed is void in so far as it affects the share of the minor daughter in the land and the purchaser acquires on title to it. The leave granted by the executing Court is not sufficient to clothe the widow with the power to sell the lands in the absence of her appointment as the legal or certification guardian of her minor daughter'.
The decision of the Bombay High Court being prior to 1960 is binding on me and with respect, I am in complete agreements. Miss Shah however tried to the distinguish this ruling by saying that the Privy council ruling on which reliance was placed by the Division Bench of the High Court had gone beyond the pronouncement of the Privy Council and therefore the ratio laid down by the High Court of Bombay required to be re-considered. She referred to the case of Mata Din v. Sheikh Ahmad Ali. (1912) 14 Bom LR 192 (PC) wherein the question whether according to the Mahomedan Law a sale by a de facto guardian if made of necessity or for the payment of an ancestral debt affecting the minor's property and if the beneficial to the minor is altogether void or merely voidable was left open. I fail to understand as to how this question could in any way come into the picture in the instant case. In the instant case there was not evidence that the sale transaction was affected by Nurbibi for any necessity or that it was benefited top the minors. No doubt part of the consideration of the sale transaction. Ex. 40 was for payment of dues under a decree which was obtained against not only Bai Nurbibi but against the minors plaintiff and defendant No. 3. However merely because a decree was obtained against the minors, that the would not entitled an-other co-owner to enter into any transaction of sale or mortgage so as to alienate the share of the minors co-heirs in the property inherited by them. In fact in the subsequent case of Jan Mohammad v. Kuram Chand, AIR 1947 PC 99. it was observed by the Privy Council at page 104 that--
'It follows that the sale by Babo Jan to Lorinda Mal is invalid except to the extent of her share which is only one-either'.
Therefore, if alienation made by Nurbibi is considered to be invalid so far as the share of the minors is concerned, it is clear that the transaction would be void and not merely voidable. After having considered all these decisions, the Bombay High Court in the case of Bhikhaji Ramchandra (supra) had clearly laid down that the such sale transaction is void. It is not necessary for me to consider in the absence of any evidence whether the sale would be void or voidable if it was for necessity or for the benefit of the minors. As observation by the Bombay High Court, Nurbibi could have been appointed as a guardian of the minors under the Guardians and Wards Act which was not done, Thus, merely because she was appointed as guardian ad item in the suit filed by the defendant Nos. 1 and 2 for realising the dues of the deceased she cannot act as a guardian for the purpose of the sale of the suit property. He act therefore, in alienating the share of the minors in the suit property was clearly unauthorised and invalid. Both the Courts, therefore, were right in holding that such a transaction was not binding on the shares of the minors is the suit property.
4. Miss. Shah next urged that before the property left by the deceased could be partitioned the debts due to the estate must be paid off be due to the estate must be paid off and unless and the debts is paid of, no partition could be effected. In support of her say she relied on the observation made in the case of the Pathummabi and another (supra) that--
'Under the Muhammadan Law the estate of the deceased Person must be applied to the payment of his funeral expenses and debts before the heirs can make partition of it . In this respect it is analogous to and even stricter than the Hindu Law. The creditors have the right to sue such of the heirs as have taken the estate but they are entitled to have a recourse to a single heir only in a case where all the effects are in the hands of that heirs'.
It may to noted that these observations of the Madras High Court relied on by Miss Shah are no longer good law. In fact the Pathummabi case reported in (1903) ILR 26 Mad 734 has been overruled by the Full Bench of the Madras High Court in the case of the Abdul Majeeth Khan Sahib v. Krishnamachariar, ILR 40 Mad 243 = (AIR 1918 Mad 1049) so far as this proposition is concerned. At page 253 Abdul Rahim, J speaking for the Bench, observed as under:--
'The question referred to the in these words. 'When the one of the co-heirs of a deceased Muhammadan in possession of the whole estate of there deceased or of the part of it. sells property in this possession forming part of the estate for discharging the debts of the deceased, is such the binding on the other co-heirs or creditors of the decease and if so, to what extent'? The answer must be in the negative'.
At page 225. it was observed--
'There cannot be the slightest doubt therefore upon the principles of Muhammadan Law and , also upon the authorities that one heirs had not right to deal with the shares of the other heirs'.
In the light the Full Bench decision of the Madras High Court it cannot be said that tit would be necessary for the co-heirs to pay the dues due to the deceased before partitioning the property,. That a part, the question before me is whether even for the purpose of paying off the debt due to the deceased. Whether is it open to one co-heir to alienate the share of other co-heirs. In the instant case, the plaintiff and defendant No. 3 were the minor cannot and Nurbibi who was their mother cannot act as their guardian under the Mahomedan Law and therefore, any act done by her with regard to the share of the minors in the immovable property would be invalid and would not be binding on the minors. In view of this is position of law, there is not substance in the submission made by Miss Shah that the sale transaction. Ex. 40 would be binding on the minors as it was effected of the purpose of paying off the dues under the decree which was obtained not only against Nurbibi but against the minors.
5. Miss Shah, however urged that in the any case Nurbibi had an authority to alienate her 1/8th interest in the estate of the deceased and as the property alienated under the sale deed. Ex. 40 did not exceed her 1/8th interest in the estate left by the deceased, the sale transaction should be upheld. In my opinion the submission made by Miss Shah is devoid of nay merit. First of all Miss Shah is not correct when she stated that the property conveyed by the sale deed, Ex 40 did not exceed the 1/8th interest in the property left by the deceased. the decease left survey number 445/3 which admeasured 7200 sq. ft. and odd. Her share therein therefore, cannot exceed 900 sq. ft. in all. The property conveyed by the sale deed Ex. 40 admeasures 1500 sq. ft. and odd including a house consisting of two rooms. Miss Shah however urged that in any case when partition is to be effected it should be so effected that the purchasers may not put to the any inconvenience and loss and the total interest of Bai Nurbibi and the whole estate left by the deceased should be taken orders. I fail to understand the submission made by Miss Shah, First of all the purchasers would get interest only in the property conveyed under the sale deed not in another property left by the deceased the sale deed, Ex. 40 consisted of 1500 sq. ft. and odd including a house situated thereon. Nurbibi who had 1/8th share in the estate of her deceased husband would, therefore, have 1/8th interest in this property. so far as the remaining in this property. So far as the remaining property is concerned which had gone to the shares of the plaintiff and defendant No. 3 in fixed shares under the Mahomedan Law, the interest therein cannot be transferred to the purchasers as the sale is not binding on the minors and it is clearly invalid so far as their shares was concerned.
6. The purchasers cannot be heard to say that the merely because Nurbibi had sold the property wherein the minors had the interest,. the interest of Nurbibi in the property other than the property conveyed by the sale transaction should also be taken into consideration for the purpose of the suit. As observed earlier, the purchasers did not get any interest in the other property of the deceased except the interest of Nurbibi in the property conveyed by the sale deed Ex. 40. Defendants Nos.1 and 2 therefore, would only get the interest of Nurbibi therein. The learned Judge while passing the decree for partition has already ordered that the plaintiff will be entitled to partition of the suit property and separate possession of 7/24th share in the suit property on payment of Rs. 2196-37 paise with 6% interest per annum and defendant No. 3 will be entitled to his 14/24 share therein on payment of Rs. 5832-76 paise with 6% interest thereon. the learned trial Judge has taken into consideration the dues which the plaintiff as well as defendant No. 3 were liable to pay under the decree obtained by defendant Nos. 1 and 3. In my opinion the order passed by the learned trial Judge is absolutely fair and equitable. Defendants Nos. 1 and 2 who did not get any interest save that of Bai Nurbibi in the property, cannot insist that they should be allowed to remain in possession of the suit property and that the interest of Bai Nurbibi in the remainder of the property may be taken in to consideration while partitioning the property among other co-heirs.
7. It was next that the suit filed by the plaintiff was barred by limitation. Miss Shah urged that the suit should have been filed within three years from the date the plaintiff attained majority. She urged that the sale transaction being voidable. the suit should be have been filed for setting aside the sale within three years of the minor having attained the majority, In my opinion, of the submission made by Miss Shah has not merit. As already stated earlier, the sale transaction is not merely voidable but is void that and it was not necessary for the plaintiff to have filed the suit within three years from the date of his having attained the majority. The plaintiff could file a suit for obtaining possession within the period prescribed in the Limitation Act. The suit is the respect of immovable property and the usual period of limitation is 12 years. The plaintiff attained the majority in 1958 and the suit was filed in November 1962. It cannot, therefore, be said that the suit was not within limitation, Section 6 of the Limitation Act provided that--
'Where a person entitled to institute a suit to make an application for the execution of a decree is , at the time from which the prescribed period is to be reckoned a minor or insane, or an idiot. he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the schedule'.
Thus. it would open to the plaintiff to institute a suit for possession of her share in the property within 12 years from the date she became a major. In my opinion, therefore, both the Courts were right in negativing the contention raised by defendant Nos. 1 and 2 that the suit was barred by limitation.
8. It was next urged by Miss Shah that the plaintiff and defendant No. 3 would be estopped from challenging the sale transaction was they had already taken benefit or the said transaction. In my opinion, there is no merit in the submission. there cannot be any estoppel against minors. No. act done by an unauthorised person could be binding on the minors and cannot operate as an estoppel. There is no evidence that the minors had taken any benefit because of the sale transaction. There is no evidence that Nurbibi had made construction of other rooms over the land bearing survey number 445/3 with the money she had received from defendant Nos. 1 and 2 as a result of the sale transaction Ex. 40. Even if the defendants were able to prove that, that would not in any way come in the way of the plaintiff and defendant No. 3 to claim partition of their share in the suit property on the ground that the sale transaction being unauthorised was not binding on them.
9. Lastly, it was urged that before passing the final order of partition, the Court, should have awarded defendants Nos. 1 and 2 amounts which were spent by them towards the improvement of the property. In this connection, it may be noted that both the Courts below have negatived the defendant's contention that any improvement in the property was made by them. No evidence was led in Court to show that they had spent any amount towards the improvement of the property. This being the Courts. I need not consider it further in this second appeal. In my opinion, both the Courts below were right in holding that the defendants had failed to prove that they would had spent any amount towards the improvement of the property.
10. In the result, the appeal fails and is dismissed with costs.
11. Appeal dismissed.