ABDUL JABBAR Vs. IQBAL BEGUM

JUDGEMENT

(1.) The plaintiffs in O,S. No. 861 of 1970 on the file of the IV Assistant Judge, City Civil Court, Hyderabad, are the appellants before me. They had filed a suit for a declaration that they are entitled to a 2/3rds share in the suit property on the basis of a sale deed on the ground that the property was illegally alienated by the defacto guardian who is the maternal uncle of the plaintiffs: and, therefore, the sale deed which has been executed by the maternal uncle of the plaintiffs as their guardian is void. This sale deed is Exhibit B-2 in the case.

(2.) The trial Court dismissed the guit holding that the sale deed was for the benefit of the minors and was for their necessity. The plaintiffs preferred an appeal and the lower appellate Court found that the sale deed is void and it, therefore, allowed the appeal and passed a preliminary decree holding that the appellants-plaintiffs are entitled to a 9/16th share which is not disputed; but the lower appellate Court proceeded further and ordered that the plaintiffs would get this decree on condition that they would pay a sum equal to the 9/ 16th share of the sale consideration mentioned in Ex. B-2 and 9/16th of the amount of Rs. 2.000/- spent by the purchaser for the improvement of the property with interest at 6 per cent per annum. It is only in respect of the conditions imposed against the plaintiffs while decreeing their suit that they have preferred this second appeal.

(3.) Mr. Syed Sadatullah Hussaini, the learned advocate appearing for the appellants, contends that, in the first instance, the sale deed was executed by the maternal uncle of the plaintiffs who were minors at that time. The maternal uncle cannot be considered to be a legal guardian even under the Muslim law. Therefore, that sale deed is void and was correctly held to be so by the lower appellate Court; but the lower appellate Court erred in putting conditions on the plaintiffs to pay 9/16th share of the sale amout and also 9/16th share of the expenses incurred by the purchaser. Submits the learned advocate that these conditions, when once a sale deed has been held to be void, cannot be imposed by the appellate Court. In support of this contention, the learned advocate cited the decision in Mohd. Amin vs. Vakil Ahmed. I am of opinion that the contention advanced by Mr. Sadatullah Hussaini has to be acceded to in this case because once a sale deed has been held to be void as it has been executed by a de facto guardian without obtaining the permission of the Court and without being appointed as guardian by the Court, then that sale deed is void. When once it is held that the sale deed itself is void, it would not be proper to place conditions on the plaintiffs to pay the amount of their share of the sale consideration and also that they should bear the expenses which have been incurred by the purchaser. The learned advocate for the respondent has cited the ruling in V.S.T. Kadir Meeral Beevi vs. S.P.K.Muhammad Koya and Another in support of his contention that when the Court has declared a sale deed to be illegal as it wai executed by a de facto guardian the Court has the power to call upon the minors who have become major to reimburse the purchaser. In Mohd. Amin's case it was held that, under the Mohamedan law, a person who has charge of the person or property of a minor without being his legal guardian, and who may, therefore, be conveniently called a "de facto" guardian has no power to convey to another any right or interest in the immovable property which the transferee can enforce against the infant. The Supreme Court held so relying upon the decision of the Privy Council in Imam Bandi vs. Haji Mutsaddi. The Supreme Court also observed that the test of benefit resulting from the transaction to the minor was negatived by the Privy Council. The ruling relied upon by the learned advocate for the respondent no doubt states that in setting aside a mortgage executed by a Mohamedan mother on behalf of her minor son, the Court has the discretionary power under section 41 to make ita condition that the minor should refund the money by which their estate and themselves are benefited. But in the light of the ruling of the Supreme Court in Mohd. Amin's case regrest I am not ia a position to follow the Madras judgment. The learned advocate for the respondent has to-day filed an un-numbered petition directly in the Court under Or. 8 Rule 6-A of the Civil Procedure Code counter-claiming the amounts spent by the defocto guardian ia the usit. I regret I cannot allow this petition for the simple reason that there is a judgment of my learned brother, A.V. Krishna Rao, J., in Saripalli Nookanna vs. Ramisetti Venkata Rao to the effect that a petition under Or. VIII-A as amended in Andhra Pradesh has to be filed at the earliest possible opportunity in the trial Court. Therefore, this petition is dismissed. This, however, will not stop respondent No.3 from proceeding against the de facto guardian by way of a separate suit provided he satisfies the Court with regard to limitation etc.