FATHIMA BIVI Vs. SADHAKATALLA

JUDGEMENT

(1.) DEFENDANTS 1 to 3 and 5 to 9 in O. S. No. 351 of 1967 on the file of the Court of the District Munsif of Periyakulam who lost completely before the trial court, but succeeded to some extent before the first appellate court, are the appellants herein. Admittedly, the suit property belonged to one Sulthan rowther, who died in February 1957. The 11th defendant is the widow of the deceased, while the 12th and 13th defendants are the major sons of the deceased. The plaintiffs are also son and daughter of the deceased, plaintiffs 2 and 3 being minors. Under Ex. B-1. dated 27-7-1957, defendants 11 to 13 executed a sale deed of the suit property in favour of the predecessors-ininterest of the appellants herein for Rs. 8,000 and in that sale deed the 11th defendant acted as guardian of the plaintiffs. The plaintiffs instituted the present suit for a declaration that they are entitled to their share in the suit property since the sale deed executed by the defendants 11 to 13 was not binding on them. The suit was resisted on several grounds by the defendants and overruling the defence the learned District Munsif decreed the suit as prayed for and, on appeal preferred by the appellants herein, the learned subordinate Judge of Dindigul while confirming the conclusion of the learned district Munsif made the right of the plaintiffs to obtain their share in the property conditional upon their paying their proportionate share in the sum of rs. 7,300 being the debts payable by their deceased father which debts were directed to be paid by the vendees under Ex. B-1. and actually paid by them. The defendants 1 to 3 and 5 to 9 have filed the present second appeal in so far as the court below held that Ex. B-1 sale deed was not binding on the plaintiffs. The plaintiffs in the suit have filed a memorandum of cross-objections is so far as the learned Subordinate Judge directed them to pay their proportionate share of the sum of Rs. 7,3000 being the debts payable by the deceased father which debts were discharged out of the sale proceeds under Ex. B-1.

(2.) AS far as the appeal itself is concerned, it can be disposed of very easily. As I pointed out already, it is the 11th defendant, the mother of the plaintiffs who acted as guardian of the plaintiffs in selling the suit property. It is settled law that the mother is not de jure guardian under Mohammedan Law and therefore had no right to sell the interest of her minor children in an immovable property and such transaction is not merely voidable but totally void. Therefore, the courts below were right in holding that the sale deed under Ex. B-1 was not binding on the plaintiffs herein so as to affect their shares in the suit property and therefore they were entitled to a decree for partition and separate possession of their share. Hence the second appeal fails and is dismissed.

(3.) THE Memorandum of cross-objections, as pointed out already, raises the question as to whether the court could impose the condition referred to above, viz. , the payment of the proportionate share of the debts f the father which were discharged out of the sale proceeds under Ex. B-1, as a condition precedent for obtaining possession of their share of the suit property. Mr. Srisailam, learned counsel for the respondents, contends that the learned subordinate Judge purported to follow the Bench decision of this Court in Kadir meeral Beevi v. Md. Koya, 1956-1 Mad LJ 307: (AIR 1956 Mad 368) but that decision was arrived at by the Madras High court without reference to the decision of the Supreme Court in Md. Amin v. Vakil Ahmed. and therefore the decision of the Madras High Court relied on by the learned subordinate Judge cannot be said to be correct law.