MAMMAD Vs. NABEESA

JUDGEMENT

(1.) PLAINTIFF filed the suit for recovery of the building from the defendants contending that the lease granted in their favour by her mother at the time when she was a minor is invalid. Admittedly defendants 1 and 2 have executed separate lease deeds in respect of the two rooms in their possession. They contended that the plaintiff having attained majority has consented to the tenancy as evidenced by the registered notice sent by her and therefore even if the lease is void being granted by an incompetent person she cannot evict them. Another contention is that the plaintiff cannot have recourse to civil proceedings as she can proceed only under the Kerala buildings (Lease and Rent Control) Act 1965. Still another contention is that the suit is bad for multifariousness.

(2.) . Admittedly the lease was granted in favour of defendants 1 and 2 by plaintiff's mother when she was a minor. Plaintiff's mother did not have the status of a legal guardian. Under Mohammedan Law the following persons are entitled in the order mentioned below to be guardians of the property of a minor: (1) the father; (2) the executor appointed by the father's will; (3) the father's father; (4) the executor appointed by the will of the father's father. Counsel for defendants 1 and 2 submitted that plaintiff's father was not in India at the time of lease and therefore her mother was perfectly competent to grant the lease. Such a contention was not taken before the lower Court and there is also no evidence to that effect. If there is no legal guardian the Court may appoint any other person as guardian of the property of a minor. In such a case the Court has always to guard the interest of the minor. The Court of course can appoint the mother as a guardian of the property of a minor child. In a particular case a person may neither be a legal guardian nor a guardian appointed by the court, but may have voluntarily placed himself in charge of the person and property of a minor. Such a person is known as de facto guardian. As held in saidu v. Amina (1970 KLT. 430) Mohammedan Law does not recognise a de facto guardian and views such a person as a rank outsider with no authority to deal with the minor's property under any circumstance whatsoever. He is merely a custodian of the person and property of the minor.

(3.) IT is next contended that the suit is bad for multifariousness. IT is the definite case of the plaintiff that though the defendants are different and the tenanted properties are also different the tenancies created by separate documents by the illegal act of her mother who is not a legal guardian can be challenged by a common cause of action and so the suit is maintainable. Order I R. 3 CPC. is the main rule governing the joinder of defendants. The object of the rule is to avoid multiplicity of suits and needless expenses. In order that the rule may be attracted two elements have to be established. Firstly, the relief claimed should be in respect of the same act of transaction or series of acts or transaction. Secondly, a common question of law or facts must be there to obviate separate trials. As the cause of plaintiff against the defendants is one and entire and cannot be affected by the incompetent leases setup them the plaintiff is entitled to claim possession of her property as a whole and not in fragments Hence the plaintiff can file a single suit against the persons who oppose her in the enforcement of her right and the suit cannot be challenged on the ground of multifariousness. As the lease in favour of defendants I and 2 by the plaintiff's mother is challenged being not by a competent legal guardian the suit filed against the defendants is maintainable especially in view of the fact that common question of law or fact would arise if separate suits were filed. The Court below was justified in decreeing the suit. We find hardly any reason to interfere. The appeal is dismissed with costs. . .