Balkees Beevi and another vs Noorjahan Beevi and 5 others

Sengottuvelan, J.—This Second appeal is filed by defendants 6 and 7 in O.S. No. 437 of 1972 on the file of the District Munsif of

Thiruvarur, challenging the legality and correctness of the judgment of the Subordinate Judge, Mayuram in A.S. No. 28 of 1979. The facts of the

case are briefly as follows: Noorjahan Beevi, wife of Miskin Rowther has filed the suit for partition and separate possession of her 1/8th share,

impleading her own children as defendants 1 to 5 and also impleading the appellants herein as defendants 6 and 7 in respect of the suit house. The

case of the plaintiff, the first respondent herein is that herself and her children viz., defendants 1 to 5 got the property by succession from Miskin

Rowther. The further case is that Mohammed Kassim Rowther, the father of Miskin Rowther, was entitled to one third share and the other two

brothers, Sheik Davood Rowther and Mohammed Sheriff are each entitled to one third share. According to her, Sheik Davood Rowther got

release of the one third share of Mohammed Sheriff by means of a release deed executed by his daughter, Balkees Beevi, the sixth defendant in the

suit, and wife of Mohammed Sheriff, representing herself and her minor children. Thereafter, Sheik bavood Rowther became the owner of two

shares, who in turn settled it in favour of Miskin Rowther.

It is contended by defendants 6 and 7 that the release deed executed by Balkees Beevi and the Junior wife of Mohammed Sheriff, representing

the minor children also, is invalid according to Mohammedan Law, that Sheik Davood Rowther did not get title to one third share and as such

Sheik Davood Rowther, predecessor-in-title of the respondents did not get the entire property and that, therefore, the relief asked for in the

present suit cannot be granted to the plaintiff.

Both the courts below negatived the contentions of the defendant in view of the fact that the plea taken now had not been put forward before

the courts below.

The plea being a legal one the same can as well be taken in second appeal. It has been held in Bengal Nagpur Ry. Co. Ltd. Vs. Ruttanji Ramji

and Others, that a family settlement on behalf of the minor entered into by his defacto guardian will be void not only against the minor, but would

be void altogether against all the parties, including those who are sui juris and parties to the document. The said principle is reiterated in a judgment

of our High Court in Ardhanari Mudaliar v. Abdul Rahiman AIR 1949 Federal Court 211 . In view of the above pronouncements, the release

deed Ex.A4 is void Ab Initio and cannot convey any right to Sheik Davood Rowther. In view of the legal position stated above, this is a fit case

where the judgments and decrees of both the courts below will have to be set aside and the matter remitted back to the trial court for fresh

disposal eschewing Ex.A4, the release deed, according to law. In the result, the appeal is allowed matter is remitted back to the trial court for the

fresh disposal, according to law and in the light of the observations contained in this judgment. There will be no order as to costs. The court-fee

paid on the memorandum of second appeal will be refunded to the appellants.