ABDUL HUSSAIN ROWTHAN Vs. MAHOMAD IBRAHIM ROWTHAR

JUDGEMENT

(1.) This is in some respects an unsatisfactory case. The plaintiff on the 10th January 1910 instituted the present suit for a share of immoveable properties left by his deceased father in this Presidency, on the ground that be was not bound by a deed of release, Exhibit Ia, dated 6th July 1904, executed by his mother as his de facto guardian during his minority in favour of his elder half-brother, by which certain property of the alleged value of Rs. 3,000 was assigned to them both in satisfaction of their 28 and 11 or 39 shares out of 176 shares in the property left by his deceased father, in addition to which it was also admitted in the oral evidence for the plaintiff that they had collected Rs. 400. According to a statement made by the plaintiff s mother, the 2nd defendant, in July 1901, Exhibit 32, the plaintiff was then 13, and according to her statement in Exhibit Ia, the release in dispute, he was 16 in July 1904. There is no reason to doubt these statements which agree and were made, at the time, so that the plaintiff did not institute the present suit until five and a half years after the date of the release, and nearly five years after he attained majority. There is also no reason to doubt the evidence of the defendants that hehimself received instalments of the mortgage for Rs. 1,000 which was executed by the 1st defendant as part of the consideration for the release. The fact that he has abstained from producing the mortgage-deed on which the payments would ordinarily be endorsed, is sufficient to warrant us in accepting the defence evidence on this point. Had it been necessary to set aside the release, the suit would have been barred, but it has been held by the Privy Council that a conveyance by a de facto guardian of a Mohammedan, which is not binding on the minor, does not require to be set aside by him after attaining majority Mata Din v. Ahmad Ali 13 Ind. Cas. 976 : 34 A. 213 : 16 C.W.N. 338 : 11 M.L.T. 145 : (1912) M.W.N. 183 : 15 C.L.J. 270 : 9 A.L.J. 215 : 14 Bom. L.R. 192 : 15 O.C. 49 : 23 M. L.J. 6 : 39 I.A. 49. In view of this decision no attempt has been made to support the judgment of the Subordinate Judge that the suit was barred as the release was not set aside within three years of attaining majority.

(2.) The defence relied upon is that the release was part of a family settlement, entered into for the purpose of quieting disputes and restoring peace in the family, and it is not disputed that if the settlement was a proper one, it would be binding on the plaintiff in spite of its having been entered into by the de facto guardian of the minor, because it would be clearly for his advantage. The case has also been complicated by the action of the plaintiff in disputing the legitimacy of the 1st defendant, and also the marriage of his father s third wife and the legitimacy of her son and live daughters, a course of con-duet clearly prompted by an unscrupulous desire to deprive them of their shares. These allegations were put in the forefront of the plaint, and the result has been that the attention of the parties seems to have been very largely directed to these questions, and evidence as to the fairness or otherwise of the release, Exhibit Ia, is not as full as it might have been. We have, however, to deal with the case on the materials before us and the main question seems to be whether the share allotted to the plaintiff and his mother was a fair one, as there can be no doubt the circumstances were such as to call for a family settlement on fair lines. The plaintiff s father had died in 1899 and there had been continuous disputes in the family till 1904. The 1st defendant, who had carried on business with the father at Rangoon and was appointed executor in his Will, effected a settlement with a son of the deceased by his third wife at Rangoon in January 1904 (Exhibit G). In July 1904 he made a settlement through arbitrators with the plaintiff and his mother and took from them the release deed, Exhibit Ia, and he made a similar settlement with the third wife and her four minor daughters and took from them the settlement Exhibit 16. In December of the same year he took a fresh release from the son of the third wife on the same terms as the previous one. All the releases recited that there were debts due by the deceased to the extent of Rs. 12,100 and this is to someextent confirmed by the Exhibits and the recitals in the Will of the deceased and no good ground is shown for questioning it. The valuation given in the release deeds is more open to suspicion. The total valuation given is Rs. 22,330, in respect of 52 acres odd in one village in Tanjore worth Rs. 6,000 or 8,000 including house, godown and cattle shed; 6 85 acres in another village worth Rs 800; house property worth Rs. 1,500 ; and 180 acres of wet and dry land at Rangoon worth Rs. 9,500 with buildings worth Rs. 1,500 and cattle Rs. 1,000, in all Rs. 22,330. Of the Rangoon properties 58 66 acres said tobe worth Rs. 3,200 and cattle worth Rs. 800 were assigned to the third wife s son under Exhibits G and I. As he was only entitled to 28 oat of 176 shares, as against 28 to the 1st defendant, 39 (28 plus 11) to the plaintiff and his mother, 81 (5 into 14 plus 11) to the third wife and her five daughters, and as the property shown as available for division was only worth Rs. 22,330 less Rs. 12,100 or Rs. 10,230, the assignment of the Rs. 4,000 to the third wife s son, who was entitled to less than one-sixth, was obviously unfair. On the other hand, the assignment of only Rs. 3,000 by Exhibit I (b) to the third wife and her four daughters in respect of at least 67 shares to which they were entitled out of 176, was greatly to their disadvantage. It appears tome, however, that in the present suit we are not concerned with them as they and their brother are not parties, and that all we have to see is whether the plaintiff and his mother were fairly dealt with in the allotment of properties alleged to be worth Rs. 3,000 by Exhibit Ia, in addition to which the plaintiff s mother admits having collected Rs. 400. Now 39/176 is less than one-fourth and, therefore, the plaintiff and his mother had a fair share if the net estate amounted to Rs. 14,000. There is, however, evidence of serious under valuation as to the Rangoon properties. The 58 62 acres of land in Rangoon, allotted under Exhibit I to the third wife s son, were only valued therein at Rs. 3,200 and the remaining 180 acres were only valued at Rs. 11,000 including cattle, etc., worth Rs. 1,000. Now the 1st defendant admits that two years later he sold the 180 acres in Rangoon for Rs. 18,000 and the oral evidence for the plaintiff is that they were sold for considerably more, which may well be the case as the 1st defendant has not produced copies of the registered sale-deeds. This certainly suggests that the valuation in favour of the 58-62 acres allotted to the third wife s son was entirely false. There is also a most suspicious circumstance that prior to 1904, the date of the alleged settlement, the 1st defendant allowed certain of the properties of the deceased to be sold for payment of revenue; and though there is no evidence he supplied the purchase-money, these properties appear to have been purchased by his friends and had come back to him by transfer from them before the date of the suit. Further, the evidence as to the alleged mediation under which the settlement was effected is meagre and unsatisfactory, and the 1st defendant has failed to produce the accounts of the deceased or to account for his failure to do so. In these circumstances I find it impossible to say that the settlement was one which has been shown to have been beneficial to the minor so as to justify his mother in entering into it as his de facto guardian, and I am of opinion it is not binding upon him and does not require to be set aside. In the present suit he only seeks to recover his share of properties in the hands of the 1st defendant with the exception of the Rangoon properties in the 1st defendant s possession, but he does not object to their being included in the account.

(3.) As regards the 3rd and 4th defendants, it is not shown that the properties in their possession belonged to the family, and the appeal as regards them must be dismissed with costs.