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K.M. Ardhanari Mudaliar Vs. Abdul Rahiman and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1956)1MLJ243
AppellantK.M. Ardhanari Mudaliar
RespondentAbdul Rahiman and ors.
Cases ReferredRaghavachariar v. Srinivasa Raghavachariar
Excerpt:
- .....several contentions were raised, the principal contention being that exhibit a-1 the partition deed is void and the suits for partition which based the cause of action on the partition deed cannot be sustained. the ist defendant is not the legal guardian under the muhammadan law and the ist defendant, who has acted as a de facto guardian, had no power to enter into a transfer concerning immovable property and such a transfer is void. the question, however, is whether a person other than a legal guardian can enter into a partition. partition amounting only to an arrangement of transferring the properties between the members of the family, the same principles which are applicable to a transfer inter vivos would be applicable.3. in mohammad ejaz husain v. mohammad iftikhar husain (1931).....
Judgment:

Krishnaswami Nayudu, J.

1. These appeals arise out of suits instituted by members of a Muhammadan family for partition. It will be convenient to refer to the parties as described in O.S. No. 338 of 1948 out of which Second Appeal No. 1434 of 1951 arises. The plaintiff Abdul Rahiman is the son of Nooruddin. Nooruddin's father was Allauddin who died in about 1920. Allauddin had two sons and four daughters of whom Nooruddin was one. Nooruddin's wife and the mother of the plaintiff is Rokia Bi, defendant 4. Besides the plaintiff, Nooruddin had two sons, the 1st and 2nd defendants, and a daughter, the 3rd defendant. Nooruddin died in 1923. After the death of her husband, the 4th defendant Rokia Bi executed a power of attorney to the 1st defendant, who is her eldest son, on 21st February, 1933 under Exhibit A-5 and on 16th October, 1933 there was a partition of the properties belonging to Allauddin. The 1st defendant represented the plaintiff and defendants 2 to 4 in the said partition and the partition deed was executed and registered on the same date. The suit properties described in Schedules A and B were the properties that were allotted to the family of Rokia Bi and her children, that is to the branch of Nooruddin. Excepting the 4th defendant and the Ist defendant, the others viz., the plaintiff and defendants 2 and 3 were minors on the date of the partition and the Ist defendant entered into the partition deed on their behalf and also on behalf of his mother the 4th defendant. On 7th July, 1936, the 1st defendant sold the entire A Schedule properties and half share in the B Schedule properties to his uncle Batcha Sahib for Rs. 1,500. Batcha Sahib in turn executed a deed of sale of what he purchased to his wife on 22nd August, 1941, who in turn sold them to the 5th defendant under Exhibit B-2 dated 26th October, 1942 for Rs. 2,950 Four suits were instituted namely O.S. Nos. 335, 336, 337 and 338 of 1948 by the 2nd defendant, 4th defendant, 3rd defendant and the plaintiff respectively for partition. Their contention is that the sales dated 7th July, 1936, 22nd August, 1941 and 26th October, 1942 are all void in so far as the share of the plaintiff and defendants 2 to 4 are concerned. The suits were decreed and the appeals preferred against them were dismissed by the Subordinate Judge of Coimbatore. The Second Appeals are all by the 5th defendant.

2. Several contentions were raised, the principal contention being that Exhibit A-1 the partition deed is void and the suits for partition which based the cause of action on the partition deed cannot be sustained. The Ist defendant is not the legal guardian under the Muhammadan Law and the Ist defendant, who has acted as a de facto guardian, had no power to enter into a transfer concerning immovable property and such a transfer is void. The question, however, is whether a person other than a legal guardian can enter into a partition. Partition amounting only to an arrangement of transferring the properties between the members of the family, the same principles which are applicable to a transfer inter vivos would be applicable.

3. In Mohammad Ejaz Husain v. Mohammad Iftikhar Husain (1931) 62 M.L.J. 410 : I.L.R. 7 Luck. I: L.R. 59 IndAp 92, it was held that under Mohammadan Law the mother of minor children is not competent, as their mother, to refer to arbitration disputes as to the distribution of immovable properties of the deceased father and the fact that the award has been acted upon for many years during the minority does not make it binding as a family arrangement. In the case the partition arrangement was acted upon for a long period extending over fourteen years and the finding was that the partition was not in any event perverse, unfair or influenced by any corruption or misconduct of the arbitrators. But even then it was held that the award amounted to an alienation of the plaintiffs' shares in the property, to which being infants they could not consent and the mother who had no authority to act on their behalf was not competent to enter into the arrangement and that although she was at the time of the agreement the de facto guardian of the minors, she had no power to deal with the property and consequently she had no authority to enter on their behalf, into the agreement to refer the disputes to arbitration, which, if acted upon, would necessarily affect the immovable property of the infant plaintiffs.

4. The latest pronouncement of the Supreme Court in Mohammed Amin and Ors. v. Vakil Ahmed and Ors. : [1952]1SCR1133 , regarding an alienation by a de facto guardian of a Muhammadan minor may be referred to. In that case where disputes arose relating to succession to the estate of a deceased Mahomedan between his three sons, one of whom was a minor, and other relations, and a deed of settlement embodying an agreement in regard to the distribution of the properties belonging to the estate was executed by and between the parties, the eldest son acting as guardian for and on behalf of the minor son, it was held that the deed was not binding on the minor son and as the deed was void it could not be held as valid merely because it embodied a family arrangement and the deed was void not only qua the minor, but with regard to all the parties including those who were sui juris.

5. The result is that the partition deed is void and no rights could flow from such a partition deed which are capable of being enforced in Courts. It is contended that in so far as the 4th defendant is concerned, the partition would be binding on her by virtue of her having constituted the 1st defendant as her agent under Exhibit A-5. The terms of Exhibit A-5 have been carefully looked into and I do not find any authority vested under that document entitling the 1st defendant to action her behalf with reference to partition of immovable property or to deal with immovable properties by way of sale, gift, or in any manner. Even apart from this, the view in Mohamed Amin and Ors. v. Vakil Ahmed and Ors. : [1952]1SCR1133 is that not only such partition deed is void qua minors but it is void in its entirety and no rights could accrue from such partition deed even in respect of persons who are majors. Transactions entered into on behalf of a Muhammadan minor except by the legal guardian appointed by Court have been uniformly held to be void and the rigour of Muhammadan Law in this respect cannot even uphold transactions which have been acted upon as in the present case, although the parties who claim benefits under them, do not seek to have them set aside, but desire to affirm them by basing their cause of action on such documents. Whatever may be the position as regards a transaction which is voidable, in so far as an alienation or transaction relating to immovable property entered into on behalf of a Muhammadan minor is concerned it is void by reason of the minor not being properly represented either by the legal guardian or by a guardian appointed by Court and no question of validity of such a document could arise by any ratification by the minors on their attaining majority. Such a document is void for all purposes and no rights could accrue from such a document and no Court could therefore proceed to recognise such document as enabling the parties under it to acquire rights which they may seek to enforce through Courts.

6. The lower appellate Court relied on the decision in Raghavachariar v. Srinivasa Raghavachariar : (1916)31MLJ575 , for the position that the provision of law which renders minors incompetent, to bind themselves by contract was enacted in their favour and for their protection and observed that there is no reason therefore to withhold the benefit from the minor and that the minor can by ratification retain the benefit got under the partition. But the case relied on is one relating to Hindus, and under Muhammadan Law such a transaction being void, the question of retaining any benefit accruing to a minor on attaining majority does not arise and could not be recognised. I have not expressed my opinion on the other questions raised in the suit, lest it should prejudice the contentions of the parties in any further proceedings which they might institute.

7. The appeals are therefore allowed and the suits are dismissed, but in the circumstances of the case, each party will bear their respective costs throughout.

8. No leave.


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