LAKSHMI AMMA Vs. SAIDUTTY ALIAS KUNHI BAVA

JUDGEMENT

(1.) This appeal is against an order of remand passed by the Subordinate Judge, Kozhikode. The plaintiff's case is that the suit property belongs to the 3rd defendant, who mortgaged it as per Ext. A2 dated March 8, 1937, to Muhammad, who assigned his interests to Abdul Kader, whose widow, Ayissabeevi Umma, acting for herself and for her two minor children (who are defendants 1 and 2 here), released the property on January 11, 1950, to the 3rd defendant as per Ext. B1, which she was not competent to do as regards the interests of the 2nd defendant and the plaintiff, as assignee of the 2nd defendant under Ext. Al dated July 29, 1958, is entitled to recover 7/24 share of the property from the defendants. The 4th defendant contended that the suit property belongs to her tarwad and had been in possession of Achuthan Nair for his maintenance when he mortgaged it with possession as per Ext. B10 on March 24, 1911, to Moidunni, whose interests she got assigned on May 31, 1913, as per Ext. B11 and that she has since then been in possession and enjoyment of the property effecting improvements thereon. The Munsiff held Ext. B1 incompetent to affect the 2nd defendant's property but found the 2nd defendant to have had no right in the suit property as the mortgage, Ext. A2, executed by the 3rd defendant in regard to property that was in the possession of the 4th defendant under Ext. B11 was itself invalid and inoperative and therefore her assignment to plaintiff conveyed no rights and dismissed the suit. On appeal the Subordinate Judge held that Ext. B1 was void and therefore incapable of ratification, that Muhammad and his assignees had, by possession of the property adversely to the 4th defendant since the date of Ext. A2, perfected their title under it and that therefore the plaintiff is entitled to enforce it to the extent of the 2nd defendant's share therein and remitted the suit for trial of the other issues. Hence this appeal by the 4th defendant.

(2.) I do not think the view of the Court below that a defacto guardian's dealing with a Mahomedan minor's property is incapable of ratification and validation by the minor after he has attained majority is right. I have observed so in Abdul Sukkoor v. Muhammed Dirar ( 1966 KLT 605 ). In Zainuddin Hossain v. Md. Abdur Rahim (AIR 1933 Calcutta 102) Monmotha Nath Mukerji and Bartley JJ. referred to Imambandi v. Mutsaddi (45 I. A. 73) and observed:

(3.) The challenge in Mohd. Amin v. Vakil Ahmed was by the minor himself and it was in that context that the Supreme Court declared the transfer void. What is "void" against the person affected is only "voidable" in strict terminology, for it is open to the person affected to ratify and validate it. It has been pleaded in this case that the 2nd defendant had ratified Ext. B1 by acceptance of its consideration as per Ext. B4. Counsel for the plaintiff here does not admit Ext. B4 and says that its genuineness has not been considered by the Courts below, as they thought Ext. B1 incapable of ratification.