CHIRONJILAL Vs. KHATOON BI

JUDGEMENT

(1.) The defendants No. 4 to 7 have preferred this second appeal against the judgment and decree dated 28-1-1980 passed by First Additional District Judge (Camp Basoda) Vidisha in Civil Appeal No. 23-A/ 1978, preferred against the judgment and decree dated 20-2-1978 passed in Civil Suit No. 502-A of 1975 by Civil Judge, Class I, Basoda.

(2.) Material facts leading to this appeal are these:- The plaintiff-respondent No. 1 instituted a suit on 21-10-1975 against the respondents No. 2 to 4 (defendants No. 1 to 3) and the appellants-defendants No. 4 to 7, in respect of the suit land, area 90 bighas and 10 biswas, described inpara 3 of the judgment of the First Appellate Court, for declaration and possession and for mesne profits at the rate of Rs. 1,000/- per annum on the averments, that the plaintiff is the sole owner of the suit land, the sale deed executed on 23-6-1973 by the defendant No. 1 the mother of defendants No. 2 and 3 as their guardian for half of the land in favour of the defendants No. 4 to 7 is ineffective and void. The defendant No. 1 admitted the claim of the plaintiff and also contended that the defendant, Chironjilai, goc executed the sale-deed by playing fraud upon her as towards considereation of Rs. 15,000/- only Rs. 4,000/- were paid. Defendant Nos. 2 and 3 also admitted the claim of the plaintiff and contended that their mother, Khatoon Bi was not authorised to execute the sale-deed on their behalf. The defendants No. 4 to 7 contended that they are the Bhumiswamis of the land and are in possession of the same. The land was a joint holding of plaintiff and Hassu Khan, who is recorded as co-owner in revenue records, the heirs of Hassu Khan, the defendants No. 3 and 4 have transferred their right, title in the suit land by way of sale-deed executed by their mother, Khatoon Bi, as guardian, the defendants No. 4 to 7 are in possession since 26-9-1973 on the basis of sale-deed.

(3.) The trial Court after appreciation of evidence and material on record, recorded a finding that original land-owner was Niyamat Khan, who had two wives, one legally wedded wife, from whose wed-lock Bakar Mohammad was born and the other was Bhuribai, a concubine, who gave birth to Hassu Khan, but he was not illegitimate because of presumption of long (lengthend) cohabitation of Niyamat Khan with Bhuribai. Plaintiff is the son of Bakar Mohammad, while Khatoon Bi is the wife of Hassu Khan and defendants No. 2 and 3, Ismile and Chhutta are sons of Hassu Khan. Both, Bakar Mohammad and Hassu Khan were co-owners of the suit land and were recorded as such in revenue records. Therefore, long sole possession of Bakar Mohammad in the absence of ouster of Hassu Khan, even though Hassu Khan with his wife left the village and was residing in village Biladana, right of Hassu Khan did not extinguish. As regards the sale-deed the trial Court recorded a finding that the plaintiff and the defendants being Sunni Mahomedan the sale-deed executed on behalf of defendants No. 2 and 3 by the defendant No. 1, the mother, as guardian was illegal and void, as under section 359 of the Principles of Mahomedan Law a mother as guardian of the property of minors cannot transfer the same. However, the suit was dismissed as the plaintiff was not found to be the sole-owner.