MIR GHULAM HUSSAIN SAHIB Vs. AYESHA BIBI

JUDGEMENT

(1.) The seventh respondent is the mother of the eighth, ninth and tenth respondents in this appeal and of the sixth defendant in the suit out of which the appeal arises. The sixth defendant died pending the litigation and is now represented by the eleventh, twelfth and thirteenth respondents. The father, one Shumsudeen, died before 1922. In that year, the seventh respondent was appointed the guardian of the properties of her sons and daughters all of whom were minors. On the 24 of September, 1924, the seventh respondent, acting on her own behalf and as guardian of the ninth and tenth respondents and the sixth defendant, sold to the appellant a house which had been left by Shumsudeen. The eighth respondent was at this time a major and she joined in the conveyance. The seventh respondent did not obtain the sanction of the Court to the sale, as she was bound to do by reason of Section 29 of the Guardians and Wards Act, 1890. Her failure to obtain the necessary consent of the Court did not, however, avoid the transaction so far as the minors were concerned. The transaction was not void, but merely voidable. Section 30 says that the disposal of the immovable property by a guardian in contravention of Section 28 or Section 29 is voidable at the instance of any person affected thereby, and goes no further. Art. 44 of the Limitation Act gives a ward three years from the date when he attains majority to sue to set aside a transfer of property made by his guardian. Therefore the minors were placed by statute in a position to sue to set aside the transaction within three years of attaining majority, but failure to exercise this right would make the appellant's title unassailable.

(2.) On the 31 of January, 1932, the ninth and tenth respondents and the sixth defendant sold their shares in the property to one Mohamed Ghulam Hussain Sahib, who, on the 24 of January, 1933, filed, the suit out of which this appeal arises to recover from the appellant the shares of his vendors in the property. Mohamed Ghulam Hussain Sahib died during the pendency of the suit and his legal representatives, who are respondents 1 to 6 were made plaintiffs in his place. The suit was defended by the appellant, who contended that the sale was valid and that the suit was barred by limitation in that it had been filed three years after the ninth and tenth respondents and the sixth defendant had attained majority. The District Munsif of Trichinopoly who tried the suit held that (1) the vendors of Mohamed Ghulam Hussain Sahib were not bound by the sale to the appellant of the 24 of September, because the Court's sanction had not been obtained for the transfer; (2) the ninth respondent alone had attained majority more than three years before the suit; and (3) the ninth and tenth respondents were majors at the time of the sale to Mohamed Ghulam Hussain Sahib, but that the sixth defendant was a minor. Relying on a decision of this Court (Ramesam and Cornish, JJ.), in the unreported case of Rahima Bi V/s. Abdul Vakil Sahib and Ors. A.S. No. 526 of 1931, the District Munsif held that the plaintiffs were entitled to a decree for the shares of the ninth and tenth respondents and the sixth defendant. The appellant . appealed to the Subordinate Judge of Trichinopoly, who concurred in the judgment of the District Munsif and accordingly dismissed the appeal. Before the Subordinate Judge, the appellant applied to amend his grounds of appeal by setting out the contention that in any event the trial Court erred in giving the plaintiffs a decree for the share of the sixth defendant as she was a minor at the time of the sale and consequently could not transfer her interest to the vendee, Mohamed Ghulam Hussain Sahib. The Subordinate Judge refused to allow this additional ground to be raised. The appellant then appealed to this Court. The appeal was heard by Horwill, J., who also was bound by the decision of this Court in Rahima Bi V/s. Abdul Vakil Sahib A.S. No. 526 of 1931. The learned Judge indicated that he was not in agreement with that judgment but being bound by it he was compelled to follow it. The learned Judge held that the Subordinate Judge was justified in not allowing the appellant to raise the contention with regard to the sixth defendant's inability to confer any title on the vendee, and in giving the certificate under Clause 15 of the Letters Patent, which has permitted of the present appeal he limited it to the question whether the case was governed by Rahima Bi V/s. Abdul Vakil Sahib A.S. No. 526 of 1931. The appellant, white conceding that that case did bind the Courts below, says that it is bad law. He also challenges the validity of the certificate granted by Horwill J., in that it limited his grounds of appeal. He says that as a certificate was granted he is at liberty to say that the Subordinate Judge and Horwill, J., erred in refusing to allow him to raise the question of the effect of the sixth defendant's minority at the time of the sale to Mohamed Ghulam Hussain Sahib.

(3.) It will be convenient to deal first of all with the contention that the learned Judge was wrong in attempting to limit his certificate. I consider that the appellant's objection is well founded. Clause 15 of the Letters Patent permits of an appeal from a single Judge of this Court sitting on the appellate side, where the Judge declares that "the case is a fit one for appeal". It is no function of the learned Judge to say what points are fit for appeal. It is for him to say whether the case is a fit one for appeal. If he considers that it is, he can give the certificate, but he must leave the matter there. It is for the higher appellate Court to say what are the questions it will allow to be raised. It follows that in my opinion it is open to the Court to hear and decide the appellant's objection with regard to. the course taken below in respect of the contention which the appellant raised regarding the sixth defendant's capacity to contract.