CHIRAKKAL PEEDIKAYIL KOMBI ALIYUMMA Vs. KOMBI MAMMU HAJI

JUDGEMENT

(1.) A daughter questions the propriety of her Mahomedan father in having acted as her guardian in the alienation of her share in the property after she had attained puberty and married also though was a minor. The issue needs to be resolved with reference to the exposition of Mahomedan Law by SIR DF Mulla edited by M. Hidayatullah and Arshad Hidayatullah followed by courts over decades.

(2.) The plaint schedule property originally belonged to Sooppy Haji who was the father of the plaintiff and defendant Nos. 1 and 2 under a registered deed (Document No. 661/1942, S.R.O., Nadapuram). Sooppy Haji assigned his right over the property in favour of the plaintiff and defendant Nos. 1 and 2 under Ext.B1 sale deed dated 30.6.1957 at a time when the plaintiff and defendant No. 2 were minors. Defendant No. 1 who was the elder brother of the plaintiff and defendant No. 2 acted as their guardian in getting executed Ext.B1 sale deed from Sooppy Haji. It was contended that defendant No. 1 was holding the property as a co-owner for and on behalf of the plaintiff and defendant No. 2 and hence the suit was laid for partition of one-third share.

(3.) Defendant No. 1 contended that he had constructed a building in the property after obtaining consent from Sooppy Haji who was the legal guardian of the plaintiff and defendant No. 2 at that time. It is his case that Sooppy Haji acting as the legal guardian of the plaintiff and defendant No. 2 subsequently executed Ext.B2 sale deed dated 24.7.1962 in favour of defendant No. 1. Defendant No. 1 asserting exclusive title had also executed Exts.B4 and B5 deeds dated 8.6.1982 and 25.6.1982 in favour of his wife and children impleaded as defendant Nos. 3 to 1 The suit for partition was resisted mainly on the ground that the plaintiff has no subsisting right over the property in view of Ext.B2 sale deed assigning her rights. The court below has accepted the contentions of defendant Nos. 1 and 3 to 13 and dismissed the suit against which the plaintiff has come up in appeal challenging the decree.