KHARAG NARAIN Vs. UNION OF INDIABIBI HAMIDA KHATOON

JUDGEMENT

(1.) This is an appeal by defendant 1 to the action. The suit was brought for declaration of title and recovery of possession together with mesne profits in respect of the suit lands. A short genealogy may now be given. <FRM>JUDGEMENT_475_AIR(PAT)_1955Html1.htm</FRM> The plaintiffs are daughters and son of Ilafiz. Their case is that the lands in suit belonged to Izharul Haque, who died leaving his widow, Asma Khatoon, and his son, Hafiz. After the death of Izharul Haque, the properties were inherited by Hafiz and his widowed mother, Asma Khatoon, Hafiz died leaving his widow, Mahmuda Khatoon, his mother, Asma Khatoon and two daughters and a son mentioned above. According to the plaintiffs' case, after the death of Ilafiz, the properties were inherited by all the heirs according to Mohamedan Law. The mother and the grandmother of the plaintiffs, according to their case, made an oral gift of their shares in the properties to the plaintiffs, and, thereupon, the plaintiffs became the 16 annas owners of the properties left by Hafiz. The plaintiffs were minors at the time of the death of Hafiz, which took place on 13-7-1932, and they were living under the guardianship of their mother, Mahmuda Khatoon. On 3-4-1933, defendant 1 fraudulently got a sale deed executed in his favour in respect of the properties in suit by their mother and the grandmother for self and as guardian of the minor plaintiff. The plaintiffs allege that the sale was absolutely void and the grandmother, as guardian of the minor plaintiffs, had no right, in law, to convey any immovable properties on their behalf. The plaintiffs* further allegation was that defendant 1 had sold almost all the lands to defendants 2 to 9 by several documents and, as defendant 1 himself had derived no title under the sale deed, defendants 2 to 9 equally got no title from the different sale deeds executed in their favour by defendant 1. On these grounds, the plaintiffs wanted a declaration that the sale deed by their mother and their grandmother for self and as guardian of these minor plaintiffs was without any legal effect and was void.

(2.) Several sets of written statements were filed by the defendants. Defendant 1 alleged that the suit was not maintainable, that the sale deed was binding upon the plaintiffs having been executed to pay off debts that had been incurred from time to time by Hafiz, who was engaged in the business of a contractor, that the plaintiffs lived under the guardianship of their grandmother and that the grandmother and the mother had legal powers to execute the kebala on their own behalf and as guardian on behalf of the minors. The story of gift propounded by the plaintiffs was denied. Defendant 1 further alleged that he had soid away all the properties, except one bigha out of the lands in suit, to defendants 2 to 9 and that those defendants were in possession of the properties exeept the one bigha which was in his possession. The other defendants, besides supporting the allegations made by defendant 1, alleged that they were bona fide purchasers for value and their possession was entirely protected.

(3.) The trial Court found that the oral gift alleged by the plaintiffs in their favour by the grandmother and the mother was not proved and that there was no gift made by them in favour of the plaintiffs. So far as the shares of the mother and the grandmother of the plaintiffs in the estate left by Hafiz were concerned, the Court found that the sale by the mother and the grandmother of their respective shares was a good sale binding upon them, but the sale of the shares in the immovable properties amounting to 11 annas 4 pies of these plaintiffs by the grandmother on their behalf, as guardian, was wholly void and, therefore, defendant 1 or defendants 2 to 9 got no title to those properties. It was further held that defendant 1 was not entitled to refund of any portion of the consideration money in respect of the shares belonging to the plaintiffs and conveyed to him. The Court also held that the question of mesne profits should be left open to be agitated in a separate proceeding.