ACHAMMA Vs. YOUSUFF

JUDGEMENT

(1.) This appeal arises out of a suit brought by a Mahomedan for a declaration that a sale deed executed by his mother, brothers and sisters at a time when he was a minor, and in the execution of which his mother had participated in her individual capacity and on his behalf as his guardian, was not binding on him and his share of the properties comprised in it and for partition and recovery of his share in the said properties on that basis. The plaint properties are situated in Kattakambal village which was in the former Cochin State, and the suit was instituted on 8-3-1947 (4-8-1122) in the District Court of Trichur before the Integration of the States of Travancore and Cochin, and was decreed by the Additional District Judge of the said District Court on the 24th September 1953, after the integration of the two States. These properties belonged to the plaintiff's father, Arakkal Ahamed Moidunny, referred to hereinafter as Moidunny, who died in Kumbom 1106 leaving properties both in the Malabar District in the former Madras Presidency and in the Cochin State. The plaint properties were all the properties which he had in the Cochin State at the time of his death. Moidunny himself belonged to Punayurkulam Amsom, a village close to Kattakambal in which the plaint properties are situated, but which was at that time in Ponnanl Taluk in the Malabar District. He had two wives, one of whom had been divorced by him before his death. Plaintiff and defendants 1 and 2 are his sons by the other wife, Pathumma, and defendants 4 and 5 are his daughters by her. By the divorced wife he had only one son, defendant 3. At the time of Moidunny's death plaintiff and defendant 3 were minors and all the other children were majors. On 8-3-1935 (5th Meenom 1110) defendants 1, 2, 4 and 5 and their mother, Pathumma, who is now dead, executed a sale deed, Ext. II, in favour of defendant 6 for the plaint properties. This sale deed purports to have been executed not only on behalf of defendants 1, 2, 4 and 5 and Pathumma but on behalf of Moidunny's minor sons also, namely, defendant 3 and the plaintiff. Pathumma, the mother of the plaintiff and defendants 1, 2, 4 and 5, participated in its execution both in her individual capacity and on behalf of the plaintiff as his guardian. On behalf of defendant 3, Moidunny's minor son by the divorced wife, defendant 1, his eldest son, executed the document as guardian. Plaintiff's case is that his mother, Pathumma, was not his legal guardian and was not competent to execute Ext. II on his behalf, that it was also not supported by consideration and necessity binding on him, and that it is therefore invalid and not binding on him and his share of the plaint properties and he is entitled to recover possession of his share, namely, 14/80, of the plaint properties which are, as stated already, all the properties left by Moidunny in the Cochin State, with past and future mesne profits.

(2.) The suit was contested by defendant 6 who has taken the sale, Ext. II. Defendant 3 filed a written statement supporting the plaintiff's case and claiming partition of his share, namely, 14/80, on the ground that defendant 1 was not his legal guardian and was not competent to execute Ext. II on his behalf-Defendants 7 and 8 are two persons who have taken from defendant 6 an agreement for sale of the plaint properties to them. They as well as defendant 1 have filed written statements supporting the contentions of defendant 6. Defendant 6 contended that although Moidunny and the members of his family were Mahomedans and governed by the Mahomedan law in matters of inheritance, since they had settled down among other communities and were having social intercourse and dealings with them, they had adopted the custom obtaining in those communities regarding the management of properties and guardianship of minors, that the plaintiff was under the defacto guardianship of his mother and she was his de jure guardian also, that she was therefore competent to execute Ext. II on his behalf also as his guardian and he was not entitled to question the validity of the document on the ground that his legal guardian had not joined in its execution, that Moidunny himself had executed two hypothecation bonds charging the plaint properties and those properties had also been attached in execution of two decrees passed against him, that Ext. II was executed at a time when the creditors were pressing for payment and for the purpose of discharging those debts and certain arrears of tax, that it was therefore, in any event, valid and binding upon the plaintiff also, that even in the event of Ext. II being found to be not binding on the plaintiff because his legal guardian had not joined in its execution, plaintiff could claim his share only on his paying to defendant 6 his proportionate share of the liabilities of the deceased Moidunny discharged by her under the terms of that document, and that he was also not entitled to ask for mesne profits until this amount was repaid to her.

(3.) Except as regards her right to get a reimbursement of the amount paid by her for discharging Moidunny's liabilities and the plaintiff's claim for mesne profits, the lower court repelled the contentions of defendant 6, and, upholding the plaintiff's case that his mother was not his legal guardian and was not competent to execute Ext. II on his behalf also, passed a preliminary decree for partition in the following terms: