SUBHAN ALI Vs. CHITTU

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit brought by two minor plaintiffs for a declaration that a sale-deed, dated the 25 of July 1916, executed by their mother Mt. Kelo, who was appointed their guardian by the District Judge, in favour of the defendant-appellant, was null and void, and was ineffectual to adversely affect their title to the house conveyed by that sale-deed. The plaintiffs alleged that there was no legal necessity for the transfer made by their mother, and that the sale by her was made without the permission of the District Judge, and as such was voidable at their option. It was also alleged in the plaint that the sale-deed was not read over and explained to Mt. Kelo nor did she understand the nature of the transaction, and though this allegation of the plaintiffs was denied in the written statement, no issue was framed on the point by the trial Court, and there is no discussion about this point in the judgments of the Courts below and, as such, it is permissible to presume that the plaintiffs did not attack the validity of the sale deed on this ground in either of the Courts below.

(2.) The defence to the suit was that the sale-deed in dispute was executed by Mt. Kelo for valid necessity with the previous permission of the District Judge,and the plaintiffs were not entitled to avoid the same.

(3.) Both the Courts below have held that the sale-deed must be taken to have been executed without the permission of the District Judge and is, therefore, voidable at the instance of the minor plaintiffs; but inasmuch as it was proved that a sum of Rs. 594, but of the sale consideration, was taken for the benefit of the minors, the plaintiffs were entitled to a decree declaring the invalidity of the sale- deed subject to the payment of Rs. 594 to the defendant.