Fathima Bivi and Others vs Sadhakatalla and Others

Defendants 1 to 3 and 5 to 9 in O. S. No. 351 of 1967 on the file of the Court of the District Munsif of Periyakulam who lost completely before

the trial court, but succeeded to some extent before the first appellate court, are the appellants herein. Admittedly, the suit property belonged to

one Sulthan Rowther, who died in February 1957. The 11th defendant is the widow of the deceased, while the 12th and 13th defendants are the

major sons of the deceased. The plaintiffs are also son and daughter of the deceased, plaintiffs 2 and 3 being minors. Under Ex. B-1. dated 27-7-

1957, defendants 11 to 13 executed a sale deed of the suit property in favour of the predecessors-in-interest of the appellants herein for Rs. 8,000

and in that sale deed the 11th defendant acted as guardian of the plaintiffs. The plaintiffs instituted the present suit for a declaration that they are

entitled to their share in the suit property since the sale deed executed by the defendants 11 to 13 was not binding on them. The suit was resisted

on several grounds by the defendants and overruling the defence the learned District Munsif decreed the suit as prayed for and, on appeal

preferred by the appellants herein, the learned Subordinate Judge of Dindigul while confirming the conclusion of the learned District Munsif made

the right of the plaintiffs to obtain their share in the property conditional upon their paying their proportionate share in the sum of Rs. 7,300 being

the debts payable by their deceased father which debts were directed to be paid by the vendees under Ex. B-1. and actually paid by them. The

defendants 1 to 3 and 5 to 9 have filed the present second appeal in so far as the court below held that Ex. B-1 sale deed was not binding on the

plaintiffs. The plaintiffs in the suit have filed a memorandum of cross-objections is so far as the learned Subordinate Judge directed them to pay

their proportionate share of the sum of Rs. 7,3000 being the debts payable by the deceased father which debts were discharged out of the sale

proceeds under Ex. B-1.

As far as the appeal itself is concerned, it can be disposed of very easily. As I pointed out already, it is the 11th defendant, the mother of the

plaintiffs who acted as guardian of the plaintiffs in selling the suit property. It is settled law that the mother is not de jure guardian under

Mohammedan Law and therefore had no right to sell the interest of her minor children in an immovable property and such transaction is not merely

voidable but totally void. Therefore, the courts below were right in holding that the sale deed under Ex. B-1 was not binding on the plaintiffs herein

so as to affect their shares in the suit property and therefore they were entitled to a decree for partition and separate possession of their share.

Hence the second appeal fails and is dismissed.

The Memorandum of cross-objections, as pointed out already, raises the question as to whether the court could impose the condition referred

to above, viz., the payment of the proportionate share of the debts f the father which were discharged out of the sale proceeds under Ex. B-1, as a

condition precedent for obtaining possession of their share of the suit property. Mr. Srisailam, learned counsel for the respondents, contends that

the learned Subordinate Judge purported to follow the Bench decision of this Court in V.S.T. Kadir Meeral Beevi Vs. S.P.K. Muhammad Koya

and Another, but that decision was arrived at by the Madras High court without reference to the decision of the Supreme Court in Mohd. Amin

and Others Vs. Vakil Ahmed and Others, . and therefore the decision of the Madras High Court relied on by the learned Subordinate Judge

cannot be said to be correct law.

Let us immediately mention one thing with regard to the fact as to the sum of Rs. 7,300 out of the sale proceeds under Ex. B-1, having been

applied towards the discharge of the debts due by the deceased father of the plaintiffs. The learned Subordinate Judge has pointed out in the

course of this judgment that the learned counsel of the plaintiffs themselves did not dispute the said discharge of the debts out of the sale proceeds,

and therefore the fact that out of the sale proceeds under Ex. B-1. the sum of Rs. 7300 was applied towards the discharge of the debts of Sultan

Rowther remains uncontradicted and also established. The only question therefore that arises for consideration is whether the learned Subordinate

Judge was right in law in calling upon the plaintiffs to pay their proportionate share of the debts. Now it is settled law that the burden is on the

appellants to prove that the judgment appealed against is erroneous and this being second appeal the learned counsel for the respondent-plaintiffs

will have to prove that the direction given by the learned Subordinate Judge in this behalf is erroneous in law. As pointed out already, there is a

direct decision of this court in V.S.T. Kadir Meeral Beevi Vs. S.P.K. Muhammad Koya and Another, and that being a judgment of a Bench of this

court is binding on me unless it is established that that judgment is erroneous either because of subsequent event or because of having been

overruled by the Supreme Court. That case also dealt with a mortgage effected by the mother acting on behalf of her minor children. While holding

that the mortgage was not binding on the minor children, the is court after referring to the decisions in Rangilahi v. Mahbublahi, ILR (1925) Lah 35

: AIR 1926 Lah 170 and Abdul Majid Saib (died) and Others Vs. Ramiza Bibi Sahiba (died) and Others, held that under S. 41 of the Specific

Relief Act, 1877, the Court had ample power to direct the plaintiffs who had come to court for setting aside the alienation to pay compensation to

the other side or to restore the property which the other side had parted with pursuant to the transaction in question. It is this judgment of this court

which ahs been followed by the learned Subordinate Judge in the present case. As a matter of fact, the judgment of this court referred to above

follows not merely the decision of the Lahore High Court but also an earlier judgment of this court mentioned already. I am confining myself only to

the earlier judgment of this court in Abdul Majid Saib (died) and Others Vs. Ramiza Bibi Sahiba (died) and Others, because that also dealt with

the case of a de facto guardian of Muslim minors disposing of the immovable property of the Muslim minors.

The only argument Mr. Srisailam put forward is that the decision of this court in V.S.T. Kadir Meeral Beevi Vs. S.P.K. Muhammad Koya and

Another, does not take note of the decision of the Supreme Court in Mohd. Amin and Others Vs. Vakil Ahmed and Others, , and in support of his

contention he relied on certain statements contained in Mullah''s Principles of Mahomedan Law'' by Hidayatullah, 17th Edn. as well as Tyabji''s

''Muslim Law'' 4th Edn As far as Mullah''s Principles of Mahomedan Law'' 17th Edn. is concerned, at p 343, reference has been made to the

decisions in Mata Din v. Ahmed Ali, (1912) 39 Ind App 49 (PC); Rangalahi v. Mohbubalahi ILR 7 Lah 35 : AIR 1926 Lah 170 and V.S.T.

Kadir Meeral Beevi Vs. S.P.K. Muhammad Koya and Another, . After referring to these decisions, in the notes it is stated, ""These decisions

probably go too far, and may require reconsideration."" This statement does not indicate the direction in which the decisions had gone too far and

on what ground they may require reconsideration. So also in Tyabji''s ''Muslim Law'' at p.231 the decision of this court in V.S.T. Kadir Meeral

Beevi Vs. S.P.K. Muhammad Koya and Another, is referred to and it is stated ""when setting aside mortgage executed by mother, court directed

refund of benefit to estate of minor (submitted erroneous) Mohd. Amin and Others Vs. Vakil Ahmed and Others, . As pointed out already, the

Editor of the 17th Edn. of Mullah''s ''Principles of Mohamedan Law'' does not indicate the reason for his opinion, while the Editor of Tyabji''s

Muslim Law, 4th Edn., gives his reason as the decisions in Mohd. Amin and Others Vs. Vakil Ahmed and Others, not being cited in the judgment

of this court in V.S.T. Kadir Meeral Beevi Vs. S.P.K. Muhammad Koya and Another, I am of the opinion that the failure to cite Mohd. Amin and

Others Vs. Vakil Ahmed and Others, , does not in any way affect the validity of the decision of this court in V.S.T. Kadir Meeral Beevi Vs.

S.P.K. Muhammad Koya and Another, . A perusal of the judgment of the Supreme Court in Mohd. Amin and Others Vs. Vakil Ahmed and

Others, , will show that it simply followed the principles laid down by the Privy Council in Imambandi v. Haji Mutsaddi, 45 Ind App 73 : AIR

1918 PC 11. Apart from the principles so laid down by the Privy Council being followed, the Supreme Court in that case has not added anything

more. In V.S.T. Kadir Meeral Beevi Vs. S.P.K. Muhammad Koya and Another, reference has been made to the decision of the Privy Council in

Imambandi v. Haji Mutsaddi, 45 Ind App 73 : AIR 1918 PC 11. Inasmuch as the Supreme Court in Mohd. Amin and Others Vs. Vakil Ahmed

and Others, merely followed the principles laid down in Imambandi v. Haji Mustaddi, 45 Ind App 73 : AIR 1918 PC 11 the failure to refer to the

decision of the Supreme Court in V.S.T. Kadir Meeral Beevi Vs. S.P.K. Muhammad Koya and Another, separately will not constitute a ground

for reconsideration of the judgment of this court in V.S.T. Kadir Meeral Beevi Vs. S.P.K. Muhammad Koya and Another, . Mr. Srisailam learned

counsel for the respondents admitted that apart from the above two statements contained in the two text books he has no other authority to show

that the decision in V.S.T. Kadir Meeral Beevi Vs. S.P.K. Muhammad Koya and Another, is erroneous.

Independent of the above consideration, it may be mentioned that the decision of this court referred to already in so far as it directed the minor

plaintiffs to pay proportionate amount due to the mortgage sine the amount obtained under the mortgage was applied toward the discharge of the

debts due by the father of the minors is supported by S. 41 of the Specific Relief Act, 1877 now S. 33 of the Specific Relief Act, 1963. These two

section clearly provide the when the court adjudges cancellation of instrument on the ground that it was void or voidable, it has got the power to

call upon the plaintiffs at whose instance the instrument is adjudged void or voidable, to restore so far as may be any benefit which he may have

received from the other party and to make any compensation to him which justice may require. In the present case, admittedly the plaintiffs

inherited the estate of their father not only with regard to the assets but also with regard to their liabilities. Equally admittedly the sale proceeds

obtained under Ex. B-1, were applied to the extent of Rs. 7300 towards discharge of the debts of their father i.e., the debts of the estate.

Therefore, it is not open to a person like the plaintiffs to claim the asset of the estate and at the same time to repudiate the liability of the estate.

Hence, on the ground that their mother was not competent to act as their guardian and dispose of the property, when they seek to recover their

share of the property, certainly they must pay their share of the liability because admittedly the sale proceeds were applied for the discharge of the

debts of the estate. As a matter of fact, a perusal of Es. B-1. the sale deed executed by the mother and the other heirs shows that the suit property

dealt with under Ex. B-1. was under an ''othi ''created by the father of the minors in 1955 for a sum of Rs. 5,000 and that was directed to be

discharged by Ex. B-1, sale deed. In addition, there were the debts of Sultan Rowther to the extent of Rs. 2,800 which had also been recited in

Ex. B-1, sale deed. Consequently, the respondents herein could not have recovered possession of the property without discharging the ''othi '' and

that ''othi'' was discharged only because of the sale under Ex. B-1. This is yet another circumstance for holding that the respondents cannot recover

possession of their share of the suit property without paying their proportionate share of the liability. In fact, if the ''othi'' had not been discharged

by the sale of the property in question, the respondents would not be able to recover possession of the property without discharging the ''othi'' and

they cannot be in a better position now when the said othi had been discharged by the sale of the property than they would have been, if the

property had not been sold and the ''othi'' had not been discharged and the said ''othi'' was outstanding. It is clear that justice requires that the

respondents herein should be directed to pay their share of the liabilities of the estate of their father when they claim partition and separate

possession of their share of the suit property on the ground that the sale under Ex. B-1, is void. Consequently, independent of any other

consideration, when the court is called upon to exercise the jurisdiction under the provisions of the Specific Relief Act, by canceling an instrument

on the ground that the instrument is void or violable, it certainly has got the power to give a direction which has been done in the present case and

therefore the respondents-plaintiffs had not established that the direction given by the learned Subordinate Judge in this cases was erroneous in

law. It may be pertinent to point out here that the Supreme Court in Mohd. Amin and Others Vs. Vakil Ahmed and Others, had no occasion to

consider the provisions of S. 41 of the Specific Relief Act, 1877, corresponding to S. 33 of the Specific Relief Act, 1963 and therefore on this

ground also the failure to refer to that decision of the Supreme Court by the Bench of this court in V.S.T. Kadir Meeral Beevi Vs. S.P.K.

Muhammad Koya and Another, is not of any consequence whatever so as to call for a reconsideration of that judgment of this court. Hence, the

memorandum of cross-objections also fails and the same is dismissed. There will be no order as to costs in either. No leave.

Appeal dismissed.