VEMANA VENKAMA NAIDU Vs. SAYED VILIJAN CHISTY

JUDGEMENT

(1.) Defendants 1, 3 and 4 are the appellants. Plaintiffs, who are Muslims, sued for partition and recovery of possession of certain lands on the ground that they had been improperly sold when they were minors, by their mother acting as their guardian, to the predecessor-in-title of defendants 1 to 4. The plaintiffs' father, Syed Khaja alias Abbas, was entitled along with three brothers and a sister, to a 4/7ths share of certain properties. All the sharers including the plaintiffs' father mortgaged their 4/7ths share under Ex. D-8 dated 23-8-1915, in favour of Papa Naidu, the predecessor of defendants 1 to 4, for Rs. 4500. This mortgage was renewed after the death of the plain-tiffs' father by their mother, acting on her own behalf and as guardian of her minor children, as well as the other sharers in the property, under Ex. D-4 dated 16-5-1927, for Rs. 7860. A sum of Rs. 680-13-0 out of the consideration for EX. D-4 went in discharge of a decree which had been obtained by a creditor against the father of the plaintiffs and another sum of Rs. 871 in discharge of a prior mortgage, EX. D-5, executed by the plaintiffs father and other sharers. The plaintiffs' mother, acting on her own behalf and as guardian of the plaintiffs, then minors, along with the other sharers, sold the mortgaged property under Ex. D-1 dated 16-3-1932 to the predecessor-in-title of defendants 1 to 4 in discharge of the mortgage, EX. D 4. On 21-8-1943 the plaintiffs filed this suit in forma pauperis for partition and recovery of possession of 4/21st share of the properties conveyed by their mother under Ex. d-1. The Court below has passed a decree in favour of the plaintiffs for joint posses-sion of 221/8024 share of the lands with mesne profits for three years prior to suit. The plaintiffs were also directed to pay Rs. 400 to defendants 1 to 4 with interest at 6 per cent. the said sum representing the plaintiffs' share of the liability for their mortgage-debt, EX. D5, dis-charged by the vendee. Defendants 1, 8 and 4 have preferred this appeal against the decree.

(2.) The sale deed, EX. D-1, having been executed by the mother of the minor plaintiffs acting as their guardian, was void under the Mahomedan law, and wholly inoperative to convey any title to the property to the vendee See Imambandi v. Mutsaddi, 45 Cal. 878 : (A. I. R. (5) 1918 P. C. 11). The plaintiffs are therefore entitled to a partition of their shares of the lands sold by their mother. It is, however, contended by Mr. Ramachandra Rao, the learned Vemana Venkama Naidu and Ors. vs. Sayed Vilijan Chisty and Ors. (04.08.1950 - M... Page 3 of 8 counsel for the alienees, here appellants, that the plaintiffs are bound to restore or make compensation for, the benefit received by them from the predecessor- in-title of defendants l to 4, the benefit consisting in the discharge of their father's debts, particularly the mortgage debt, EX. D-4, for Rs. 4500 which sum, with subsequent interest, was charged on the suit lands. He relies on the provisions of Section 41, Specific Relief Act, and on certain decisions of this Court in support of his contention, Mr. Poeker, tha learned counsel for the plaintiffs, who are respondents, contends that the sale, Ex. D-1, was wholly void and unenforceable and that the plaintiffs are therefore entitled to an unconditional decree for partition and possession of the lands, leaving defendants 1 to 4 to enforce their rights as creditors or mortgagees in a separate suit of their own. He maintains that it is only where a person who is sui juris seeks to set aside a sale to which he was a party on some ground rendering it voidable at his option, that Section 41 applies. He argues that the section has no application to a case where a sale is wholly void as being a sale of the minor's property effected by an un-authorised guardian, a stranger to the minors in the eye of the law, though in fact their own mother. It was also contended that the present suit was not one for cancellation of the sale deed executed by the mother of tha plaintiffs, but one ignoring the sale as a nullity and treating the vendee as a trespasser for recovery of possession. Section 41, Specific Relief Act was, according to him, inapplicable to the present case.

(3.) Section 41, Specific Relief Act, is in these terms : ''On adjudging the cancellation of an instrument, the Court may require a party to whom such relief is granted to make any compensation to the other which justice may require." The language of the section is very wide and :givea a large discretion to tha Court to make an crder for compensation if the ends of justice require such compensation to be awarded where the Court adjudges that a deed is void. This section has been the subject of repeated judicial interpretation in several decisions of this Court and the other High Courts, We shall refer in detail only to the recent decisions of this Court.