Abdul Sukkoor vs Muhammed Dirar and Others

M. Madhavan Nair, J.—Second appeal by 12th defendant. The suit properties along with several others belonged to Uthuman Pillai whose heirs are the plaintiffs and defendants 2 to 10. At the time of his death the suit properties were under a mortgage for Rs. 700/-. On Medom 24, 1119, his heirs joined to execute a sale (Ex. D 4) of the suit properties to the 1st defendant to discharge his mortgage and certain other debts and also a deed of partition (Ex. D 1) of his remaining properties among themselves. Plaintiffs, who were minors then, were represented by their mother as guardian. After attaining majority, the plaintiffs instituted this suit to set aside Ex. D4 and to recover their share in the suit properties, offering to pay their share of the mortgage debt. The 1st defendant contends that the sale is valid and that the plaintiffs are estopped from impeaching the same and those contentions are adopted by his legal representative, the present appellant. The Munsif held the suit time-barred as regards the 1st plaintiff, and decreed it as concerns the 2nd plaintiff holding Ex. D 4 void as he was represented therein by his mother as guardian which she was not in law. On appeal, the Subordinate Judge affirmed the same. Hence this second appeal.

It is conceded by counsel for 2nd plaintiff that the properties allotted to the 2nd plaintiff in partition under Ex. D 1 are in his possession and enjoyment. The 2nd plaintiff has not testified to his case. The 1st plaintiff, swearing as P.W.1 has stated categorically:

It follows that the plaintiffs have accepted the partition of Uthuman Pillai''s properties under Ex. D 1. The suit is only to set aside the conveyance, Ex. D4 Ex. D1 recites:

The above recitals are clear that the impugned sale of even date was made as a preliminary to the partition embodied in Ex. D1 and that both (the partition and the sale) were so intimately connected as to form parts of one transaction. Under the Mahommedan law, even though the assets of the deceased vest in his heirs on his death, his funeral expenses, debts and legacies have to be paid first and "it is only the residue that is available for distribution among the heirs" (see Abdul Majeeth v. Krishnamachariar (I.L.R. 40 Mad. 243 F.B.) and Mulla''s Mahommedan law para 39). The discharge of debts therefore deserves primary consideration at partition of the deceased''s properties among the heirs and that is what is seen in the execution of Ex. D 1 and D 4 in this case. Plaintiffs who have accepted the partition under Ex. D 1, which set apart the suit properties and another for discharge of the deceased''s debts, cannot impugn their alienation for raising funds to discharge those debts--particularly when that alienation was done as part of the partition itself.

Counsel for 2nd plaintiff contended that a dealing of property by a de facto guardian of a Mahommedan minor is null and void and cannot be sustained in any view. True it is that in Mohd. Amin and Others Vs. Vakil Ahmed and Others, the Supreme Court held a settlement, in which a mahommedan minor was represented by his brother as de facto guardian, "void", but as observed by Stone J., with concurrence of Madhavan Nair J., in (Maddali) Visweswara Rao Vs. (Maddala) Suryarao and Others, in regard to similar dictum of the Privy Council, "Their Lordships were not deciding the question whether such a transaction is void ab initio and so incapable of ratification or merely voidable." In the case before the Supreme Court, the challenge to the alienation was made by the affected minor himself; and there their Lordships said; "a de facto guardian has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant". It is then obvious that what their Lordships meant was only that the transaction was void as against the minor, which in strict terminology, as explained in Mathew v. Ayyappankutty (1962 KLT 61 Par. 10), was to say voidable at his instance. Obviously their Lordships did not mean that the transaction was void as against the whole world or else the expression "which the transferee can enforce against the infant" would not have been used. I hold that a dealing of immovable property of a Mahammedan minor by his de facto guardian is only voidable by the minor and is ratifiable by him after he has become major. It then follows that the plaintiffs, who have accepted the partition under Ex. D 1, have to be taken to have ratified the alienation under Ex. D 4 which is irretrievably connected with it. The plaintiffs have no sustainable cause of action in this suit which is therefore dismissed hereby. In the circumstances of this case, I direct the parties to bear their respective costs throughout.