MAHOMED RAZA AHMAD Vs. ZAHOOR AHMAD

JUDGEMENT

(1.) This, appeal arises out of a suit brought by the plaintiffs-respondents for partition of a house and for a declaration that a sale deed, dated 24 November 1911, is void and ineffectual as against the plaintiffs. They claim to be entitled to half of the house the other half being the property of one Sheikh Fazal Ahmad, who is now represented by defendants other than defendants 1 to 3. The half share which is claimed by the plaintiffs, Mohammad Raza Ahmad and Mt. Taslimunnissa, originally belonged to their grandmother, Mt. Tazimunnissa, on whose death it was inherited by them in the proportion of two-thirds and one- third, respectively, their father having predeceased Mt. Tazimunnisa. Mt. Irshad Khatun, defendant 3, the mother of the plaintiffs, was appointed guardian of their person and property by the District Judge.

(2.) By a deed, dated 24 November 1929, Mt. Irshad Khatun purported to sell half of the house to Mt. Kadirunnissa, defendant 2, wife of Hafizzahur Ahmad, defendant 1. The latter is said to be the real vendee. The permission of the District Judge was not obtained by Mt. Irshad Khatun, the guardian defendant 3, for sale of the property of her minor wards.

(3.) The defence of the first two defendants, so far as it is material for the purposes of this appeal, is that the aforesaid sale effectively conveyed the rights of the plaintiffs and that the same not having been Bet aside within three years from the time the plaintiffs attained majority, is conclusive by lapse of limitation. Both the lower Courts have held that the sale, not being made with the permission of the District Judge, was voidable, that the claim of plaintiff 1 was barred by limitation but that of plaintiff 2 was within time. Accordingly a decree for partition of one-third of one-half of the house was passed. The plaintiffs and defendants 1 and 2 have appealed to this Court. Second Appeal No. 1380 of 1928 is the plaintiffs appeal and Second Appeal No. 1565 is that of the codefendants.