SHEIKH AHMAD Vs. AMIRKHAN

JUDGEMENT

(1.) THIS case was last before me as Second Appeal No. 18-B of 1924 when I remanded it to the lower appellate Court. That Court has again decreed the plaintiffs claim. The plaintiffs sued for joint possession of their 7/8ths share in survey No. 5/1 of Dawalpur in the Balapur Taluq. This field has been sold by their mother to defendant after their father's death in 1911 when they were minors. The First Court had dismissed the plaintiffs' suit but in appeal it was successful. The defence was that Umraokhan the father entered into an agreement to the sale and was paid Rs. 200, and after his death his widow took another Rs. 300 and executed the sale-deed. There was a further plea that by an oral will Umraokhan had directed his widow to dispose of the field to the defendant. The findings as they now stand are that the contract for sale was made by the plaintiffs' father and part of the consideration was received and the property was sold by the plaintiffs' mother in pursuance of the contract of the father. The lower appellate Court finds that even so, the sale is not binding on the plaintiffs, and quotes cases to show that a de facto guardian of a Mahomedan minor cannot convey to another any interest in the minor's property. The Court finds that the mother was not appointed an executrix and that the mother is an heir and cannot validly sell the property in discharge of the debts of her deceased husband. The Judge finds that the plaintiffs' claim cannot therefore be resisted. On the finding that Umraokhan himself entered into a contract for sale, it seems to me, that the conclusion come to by the lower appellate Court is wrong. The defendant is in possession under a valid contract made by the father in his favour and inheritance would be subject to the contract. Illustration to Section 27(b), Specific Relief Act says: A contracts to convey certain land to B by a particular date, A dies intestate before that date, without having conveyed the land, B may compel A's heir or other representative in interest to perform the contract specifically.

(2.) BANSI Seth v. Pandoba [1899] 12 C.L.R. 154, is a similar case, in which it was held the sale was complete by the transfer of possession and payment of consideration. In Bapu Apaji v. Kashinath Sadoba [1917] 41 Bom. 438 it was held that

(3.) IN the present case, the mother gave the defendant possession under the contract entered into by her husband and though the deed of sale does not mention that she executed that document also on behalf of her minor sons, the present plaintiffs, it is clear, that she did so in pursuance of her husband's agreement. The alienation is made not on the woman's own account but in discharge of an obligation made by her husband and as regards the present plaintiffs in pursuance of a contract made by their ancestor. Under these conditions, it seems to me, the defendant's possession cannot be disturbed; Hasan Ali v. Mehdi Husain [1876] 1 All. 533.