(1.) This is an appeal by the defendant against a judgment of affirmance decreeing the suit. The suit was for confirmation or in the alternative recovery of possession on declaration of title and for injunction. Allegations made in the plaint are as follows: The plaintiff obtained the suit property from her father by a bemeadi lease dated 17.6.52. The plaintiff had been since in possession thereof on payment of rent. The suit property is comprised within Dag No.1276 being a demarcated portion measuring 2 decimals out of 9 decimals which along with land measuring half decimal of Dag No. 1275 was taken settlement of as stated above. The plaintiff was aged about 14/15 years when the suit was filed on 20.11.59. The plaintiff's father purporting to act on her behalf sold the said land of Dag No.1276 on 4.2.56 to plaintiff's father-in-law Abdul Malek. The sale was not for her interest or benefit and the recitals made in the document were false. There was never any purchase of adjacent land as recited therein as the purpose of the sale. It was also stated that the entire consideration was misappropriated by the plaintiff's father and accordingly the kobala was void and her interest was not thereby affected, as the document was not binding on her. The defendant filed a pre-emption suit being suit No.102 of 1956 which was decreed by a solenama on 20.8.58. The plaintiff's possession of the suit property was unaffected by the pre-emption decree and the plaintiff claimed a declaration of her title to the said land on the finding that the kobala dated 4.2.56 purported to be executed on her behalf was void and the pre-emption decree was also void and also for confirmation of possession. The plaintiff further prayed for recovery of possession if it was found that she was out of possession and injunction restraining the defendant from dispossessing the plaintiff in respect of the suit land was also prayed for. This suit was filed by the plaintiff as minor through her guardian-husband Sk. Nurul Islam.
(2.) The defence filed by the defendant contesting the suit was that the suit was not maintainable by the husband, that the decree is pre-emption suit No.102 of 1956 was binding on the plaintiff as she was represented by her guardian in the said suit. The suit was barred by estoppel, waiver and acquiescence and the plaintiff had no right to challenge the acts done by her father. Further Abdul Malek the purchaser under the impugned deed was a necessary party. The defendant admitted the settlement in favour of the plaintiff and her being in possession thereof on that basis. But it was contended that the sale to Abdul Malek was a valid sale for consideration for plaintiff's maintenance as her father was too poor to maintain her and husband's apathy and failure to maintain her was evidenced by matrimonial proceedings between the parties. The sale was accordingly legal and valid and the case of the misappropriation of the consideration money by the plaintiff's father was untrue. Abdul Malek acquired perfect title to the suit property by his purchase and on the basis of pre-emption decree the defendant became entitled to the suit property and in Title Execution Case No. 54 of 1958 the possession was delivered to him. For these reasons the suit was liable to be dismissed.
(3.) On a trial on evidence the suit was dismissed by the trial court and on appeal the case was remanded back for hearing for enabling the plaintiff to produce the certified copy of the kobala impugned in the suit. After remand the trial court decreed the suit on the finding that the sale to Abdul Malek was void under the Mohammedan Law. It was held that the sale under Mohammedan Law for violating the conditions of transfer of minor's property was void and invalid and not voidable as in Hindu Law in respect of such transfer. Accordingly it was not necessary for her to pray for setting aside the pre-emption decree and the suit was thus maintainable. It was further held that the decree in the pre-emption suit was not binding on the plaintiff and the alleged purpose of sale for purchase of other land for plaintiff was not a valid condition of transfer. The court referred to the evidence of the plaintiff's father who stated that sale proceeds were utilized for his own purpose. Though the plaintiff's father's pecuniary condition was not good and she was forced to live with her father it was held that this fact could not override the recitals of the kobala and accordingly the sale was void. As the plaintiff was out of possession the suit was decreed declaring her title to the suit property together with the direction on the defendant to deliver possession to her, in default the execution was to proceed for obtaining recovery of possession.