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Fathima Bivi and ors. Vs. Sadhakatalla and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 282 of 1973 and Memo of Objections
Judge
Reported inAIR1977Mad215; (1977)1MLJ473
ActsSpecific Relief Act, 1877 - Sections 41; Specific Relief (Amendment) Act, 1963 - Sections 33; Mohammedan Law
AppellantFathima Bivi and ors.
RespondentSadhakatalla and ors.
Cases ReferredKadir Meeral Beevi v. Md. Koya.
Excerpt:
.....claim the assets of the estate and at the same time to repudiate the liability of the estate. hence, on the ground that their mother was not competent to act as their guardian and dispose of the property, when they seek to recover their share of the property, certainly they must pay their share of the liability because admittedly the sale proceeds were applied for the discharge of the debts of the estate. - - .....3 being minors. under ex. b-1. dated 27-7-1957, defendants 11 to 13 executed a sale deed of the suit property in favour of the predecessors-in-interest of the appellants herein for rs. 8,000 and in that sale deed the 11th defendant acted as guardian of the plaintiffs. the plaintiffs instituted the present suit for a declaration that they are entitled to their share in the suit property since the sale deed executed by the defendants 11 to 13 was not binding on them. the suit was resisted on several grounds by the defendants and overruling the defence the learned district munsif decreed the suit as prayed for and, on appeal preferred by the appellants herein, the learned subordinate judge of dindigul while confirming the conclusion of the learned district munsif made the right of the.....
Judgment:
1. Defendants 1 to 3 and 5 to 9 in O. S. No. 351 of 1967 on the file of the Court of the District Munsif of Periyakulam who lost completely before the trial court, but succeeded to some extent before the first appellate court, are the appellants herein. Admittedly, the suit property belonged to one Sulthan Rowther, who died in February 1957. The 11th defendant is the widow of the deceased, while the 12th and 13th defendants are the major sons of the deceased. The plaintiffs are also son and daughter of the deceased, plaintiffs 2 and 3 being minors. Under Ex. B-1. dated 27-7-1957, defendants 11 to 13 executed a sale deed of the suit property in favour of the predecessors-in-interest of the appellants herein for Rs. 8,000 and in that sale deed the 11th defendant acted as guardian of the plaintiffs. The plaintiffs instituted the present suit for a declaration that they are entitled to their share in the suit property since the sale deed executed by the defendants 11 to 13 was not binding on them. The suit was resisted on several grounds by the defendants and overruling the defence the learned District Munsif decreed the suit as prayed for and, on appeal preferred by the appellants herein, the learned Subordinate Judge of Dindigul while confirming the conclusion of the learned District Munsif made the right of the plaintiffs to obtain their share in the property conditional upon their paying their proportionate share in the sum of Rs. 7,300 being the debts payable by their deceased father which debts were directed to be paid by the vendees under Ex. B-1. and actually paid by them. The defendants 1 to 3 and 5 to 9 have filed the present second appeal in so far as the court below held that Ex. B-1 sale deed was not binding on the plaintiffs. The plaintiffs in the suit have filed a memorandum of cross-objections is so far as the learned Subordinate Judge directed them to pay their proportionate share of the sum of Rs. 7,3000 being the debts payable by the deceased father which debts were discharged out of the sale proceeds under Ex. B-1.

2. As far as the appeal itself is concerned, it can be disposed of very easily. As I pointed out already, it is the 11th defendant, the mother of the plaintiffs who acted as guardian of the plaintiffs in selling the suit property. It is settled law that the mother is not de jure guardian under Mohammedan Law and therefore had no right to sell the interest of her minor children in an immovable property and such transaction is not merely voidable but totally void. Therefore, the courts below were right in holding that the sale deed under Ex. B-1 was not binding on the plaintiffs herein so as to affect their shares in the suit property and therefore they were entitled to a decree for partition and separate possession of their share. Hence the second appeal fails and is dismissed.

3. The Memorandum of cross-objections, as pointed out already, raises the question as to whether the court could impose the condition referred to above, viz., the payment of the proportionate share of the debts f the father which were discharged out of the sale proceeds under Ex. B-1, as a condition precedent for obtaining possession of their share of the suit property. Mr. Srisailam, learned counsel for the respondents, contends that the learned Subordinate Judge purported to follow the Bench decision of this Court in Kadir Meeral Beevi v. Md. Koya, 1956-1 Mad LJ 307: (AIR 1956 Mad 368) but that decision was arrived at by the Madras High court without reference to the decision of the Supreme Court in Md. Amin v. Vakil Ahmed. . and therefore the decision of the Madras High Court relied on by the learned Subordinate Judge cannot be said to be correct law.

4. Let us immediately mention one thing with regard to the fact as to the sum of Rs. 7,300 out of the sale proceeds under Ex. B-1, having been applied towards the discharge of the debts due by the deceased father of the plaintiffs. The learned Subordinate Judge has pointed out in the course of this judgment that the learned counsel of the plaintiffs themselves did not dispute the said discharge of the debts out of the sale proceeds, and therefor the fact that out of the sale proceeds under Ex. B-1. the sum of Rs. 7300 was applied towards the discharge of the debts of Sultan Rowther remains uncontradicted and also established. The only question therefore that arises for consideration is whether the learned Subordinate Judge was right in law in calling upon the plaintiffs to pay their proportionate share of the debts. Now it is settled law that the burden is on the appellants to prove that the judgment appealed against is erroneous and this being second appeal the learned counsel for the respondent-plaintiffs will have to prove that the direction given by the learned Subordinate Judge in this behalf is erroneous in law. As pointed out already, there is a direct decision of this court in Kadir Meeral Beevi v. Md Koya, 1956-1 Mad LJ 307: (AIR 1956 Mad 368) and that being a judgment of a Bench of this court is binding on me unless it is established that that judgment is erroneous either because of subsequent event or because of having been overruled by the Supreme Court. That case also dealt with a mortgage effected by the mother acting on behalf of her minor children. While holding that the mortgage was not binding on the minor children, the is court after referring to the decisions in Rangilahi v. Mahbublahi, ILR (1925) 7 Lah 35: (AIR 1926 Lah 170) and Abdul Majid Sahib v Ramiza Bivi Sahiba, 33 Mad LW 312: (AIR 1931 Mad 468) held that under S. 41 of the Specific Relief Act, 1877, the Court had ample power to direct the plaintiffs who had come to court for setting aside the alienation to pay compensation to the other side or to restore the property which the other side had parted with pursuant to the transaction in question. It is this judgment of this court which ahs been followed by the learned Subordinate Judge in the present case. As a matter of fact, the judgment of this court referred to above follows not merely the decision of the Lahore High Court but also an earlier judgment of this court mentioned already. I am confining myself only to the earlier judgment of this court in Abdul Majid Saib v. Ramiza Bibi Sahiba, 33 Mad LW 321: (AIR 1931 Mad 468) because that also dealt with the case of a de facto guardian of Muslim minors disposing of the immovable property of the Muslim minors.

5. The only argument Mr. Srisailam put forward is that the decision of this court in Kadir Meeral Beevi v. Md. Koya. 1956-1 Mad LJ 307: (AIR 1956 Mad 368) does not take note of the decision of the Supreme Court in Md. Amin v. Vakil Ahmed. , and in support of his

contention he relied on certain statements contained in Mullah's Principles of Mahomedan Law' by Hidayatullah, 17th Edn. as well as Tyabji's 'Muslim Law' 4th Edn As far as Mullah's Principles of Mahomedan Law' 17th Edn. is concerned, at p 343, reference has been made to the decisions in Mata Din v. Ahmed Ali, (1912) 39 Ind App J49 (PC); Rangalahi v. Mohbubalahi ILR 7 Lah 35: (AIR 1926 Lah 170) and Kadir Meeral Beevi v. Md. Koya, 1956-1 Mad LJ 307: (AIR 1956 Mad 368). After referring to these decisions, in the notes it is stated, "These decisions probably go too far, and may require reconsideration." This statement does not indicate the direction in which the decisions had gone too far and on what ground they may require reconsideration. So also in Tyabji's 'Muslim Law' at p.231 the decision of this court in Kadir Meeral Beevi v. Md. Koya 1956-1 Mad LJ307:(AIR 1956Mad 368) is referred to and it is stated "when setting aside mortgage executed by mother, court directed refund of benefit to estate of minor (submitted erroneous) . As pointed out already, the Editor of the 17th Edn. of Mullah's 'Principles of Mohamedan Law' does not indicate the reason for his opinion, while the Editor of Tyabji's Muslim Law, 4th Edn., gives his reason as the decisions in Md. Amin v. Vakil Ahamed, not being cited in the judgment of this court in Kadir Meeral Beevi v. Md. Koya, 1956-1 Mad LJ 307: (AIR 1956 Mad 368) I am of the opinion that the failure to cite Md. Amin v. Vakil Ahamed, , does not in any way affect the validity of the decision of this court in Kadir Meeral Beevi v. Md. Koya, 1956-1 Mad LJ 307; (AIR 1956 Mad 368). A perusal of the judgment of the Supreme Court in Md. Amin v. Vakil Ahamad, , will show that it simply followed the principles laid down by the Privy Council in Imambandi v. Haji Mutsaddi, 45 Ind App 73: (AIR 1918 PC 11). Apart from the principles so laid down by the Privy Council being followed, the Supreme Court in that case has not added anything more. In Kadir Meeral Beevi v. Md. Koya, 1956-1 Mad LJ 307: (AIR 1956 Mad 368) reference has been made to the decision of the Privy Council in Imambandi v. Haji Mutsaddi, 45 Ind App 73: (AIR 1918 PC 11). Inasmuch as the Supreme Court in Md. Amin v. Vakil Ahmed,

merely followed the principles laid down in Imambandi v. Haji Mustaddi, 45 Ind App 73: (AIR 1918 PC 11) the failure to refer to the decision of the Supreme Court in Kadir Meeral Beevi v. Md. Koya,1956-1 Mad LJ 307: (AIR 1956 Mad 368) separately will not constitute a ground for reconsideration of the judgment of this court in Kadir Meeral Beevi v. Md Koya, 1956-1 Mad LJ 307: (AIR 1956 Mad 368). Mr. Srisailam learned counsel for the respondents admitted that apart from the above two statements contained in the two text books he has no other authority to show that the decision in Kadir Meeral Beevi v. Md Koya, 1956-1 Mad LJ 307: (AIR 1956 Mad 368) is erroneous.

6. Independent of the above consideration, it may be mentioned that the decision of this court referred to already in so far as it directed the minor plaintiffs to pay proportionate amount due to the mortgage sine the amount obtained under the mortgage was applied toward the discharge of the debts due by the father of the minors is supported by S. 41 of the Specific Relief Act, 1877 now S. 33 of the Specific Relief Act, 1963. These two section clearly provide the when the court adjudges cancellation of instrument on the ground that it was void or voidable, it has got the power to call upon the plaintiffs at whose instance the instrument is adjudged void or voidable, to restore so far as may be any benefit which he may have received from the other party and to make any compensation to him which justice may require. In the present case, admittedly the plaintiffs inherited the estate of their father not only with regard to the assets but also with regard to their liabilities. Equally admittedly the sale proceeds obtained under Ex. B-1, were applied to the extent of Rs. 7300 towards discharge of the debts of their father i.e., the debts of the estate. Therefore, it is not open to a person like the plaintiffs to claim the asset of the estate and at the same time to repudiate the liability of the estate. Hence, on the ground that their mother was not competent to act as their guardian and dispose of the property, when they seek to recover their share of the property, certainly they must pay their share of the liability because admittedly the sale proceeds were applied for the discharge of the debts of the estate. As a matter of fact, a perusal of Es. B-1. the sale deed executed by the mother and the other heirs shows that the suit property dealt with under Ex. B-1. was under an 'othi 'created by the father of the minors in 1955 for a sum of Rs. 5,000 and that was directed to be discharged by Ex. B-1, sale deed. In addition, there were the debts of Sultan Rowther to the extent of Rs. 2,800 which had also been recited in Ex. B-1, sale deed. Consequently, the respondents herein could not have recovered possession of the property without discharging the 'othi ' and that 'othi' was discharged only because of the sale under Ex. B-1. This is yet another circumstance for holding that the respondents cannot recover possession of their share of the suit property without paying their proportionate share of the liability. In fact, if the 'othi' had not been discharged by the sale of the property in question, the respondents would not be able to recover possession of the property without discharging the 'othi' and they cannot be in a better position now when the said othi had been discharged by the sale of the property than they would have been, if the property had not been sold and the 'othi' had not been discharged and the said 'othi' was outstanding. It is clear that justice requires that the respondents herein should be directed to pay their share of the liabilities of the estate of their father when they claim partition and separate possession of their share of the suit property on the ground that the sale under Ex. B-1, is void. Consequently, independent of any other consideration, when the court is called upon to exercise the jurisdiction under the provisions of the Specific Relief Act, by canceling an instrument on the ground that the instrument is void or violable, it certainly has got the power to give a direction which has been done in the present case and therefore the respondents-plaintiffs had not established that the direction given by the learned Subordinate Judge in this cases was erroneous in law. It may be pertinent to point out here that the Supreme Court in Md. Amin v. Vakil Ahamed,had no occasion to consider the provisions of S. 41

of the Specific Relief Act, 1877, corresponding to S. 33 of the Specific Relief Act, 1963 and therefore on this ground also the failure to refer to that decision of the Supreme Court by the Bench of this court in Kadir Meeral Beevi v. Md. Koya. 1956-1 mad LJ 307: (AIR 1956 Mad 368) is not of any consequence whatever so as to call for a reconsideration of that judgment of this court. Hence, the memorandum of cross-objections also fails and the same is dismissed. There will be no order as to costs in either. No leave.

7. Appeal dismissed.


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