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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 156 OF 1991
1. Tikaram Ragho Choudhary
Since deceased by his Heirs -
1A Sumanbai Pralhad Firke
At & post Navi, Taluka
Yawal, Dist. Jalgaon.
1B. Mrs. Vijaya Sudhakar Narkhede,
R/o Navi, Taluka Yawal,
District Jalgaon.
2. Popat Narso Choudhary,
R/o Savda, Taluka Raver,
District Jalgaon.
3. Kusumbai w/o Namdeo Choudhary
4. Mohan Yadav Choudhary
5.
6.
7.
Krishna Keshav Choudhary
Ravindra Keshav Choudhary
Watcchalabai Keshav Choudhary
Nos. 3 to 7 residents of
Savda, Taluka Raver,
District Jalgaon.
8. Tukaram Bhikaji Patil
Since deceased by his Heirs
8A. Sudhakar Tukaram Patil
8B. Hemantkumar Sudhakar Patil
8C. Arunabai Sudhakar Patil
8D. Kasibai Tukaram Patil
9. Sudhakar Tukaram Patil
10. Hemantkumar Sudhakar Patil
11. Arunabai Sudhakar Patil
12. Kasibai Tukaram Patil
13. Govinda Ananda Mahajan
Nos. 8 to 13 residing at
Big Waghode, Taluka Raver,
District Jalgaon. APPELLANTS
VERSUS
1. Shaikh Gaffar Shaikh Bismillah,
R/o Municipal House No. 25,
Bhavani Peth, Jalgaon, Dist.
Jalgaon.
2. Sugrabi w/o Shaikh Bismillah,
R/o 68, Bhavani Peth, Jalgaon,
District Jalgaon. RESPONDENTS
.....
Mr. V.J. Dixit, Senior Advocate for the appellants.
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None for both respondents.
.....
[CORAM: V.R. KINGAONKAR, J.]
DATE OF JUDGEMENT RESERVED : 24th October, 2008
DATE OF JUDGEMENT PRONOUNCED : 11th November, 2088
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JUDGEMENT :
1. Challenge in this appeal is to judgement
rendered by learned Additional District Judge,
Jalgaon, in an appeal (R.C.A. No. 119/1983) whereby
and whereunder judgement and decree of Trial Court in
Spl. Civil Suit No. 28/1977 came to be reversed.
2. Original
ig defendants No. 2 to 14 are
appellants herein. Respondent No. 1 - Shaikh Gaffar
is original plaintiff and respondent No. 2 - Sugrabi
is original defendant No. 2. Respondent No. 1 -
Shaikh Gaffar is son of respondent No. 2 - Sugrabi.
He filed suit (Spl. C.S. No. 28/1977) for setting
aside alienation made by her and for his 7/8th share
by way of partition and separate possession in respect
of the suit fields.
3. Briefly stated, case of the respondent No. 1
(plaintiff) before the Trial Court was that he and
respondent No. 2 had filed a partition suit bearing
Spl. C.S. No. 3/1956 against his uncles, etc. That
suit ended in a compromise decree passed on 30th
November 1956. By virtue of such compromise decree,
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the suit properties were allotted to him as shown in
the schedule appended with the plaint. They comprised
of agricultural fields bearing Survey No. 353
admeasuring 1 acre 29 gunthas, situated at village
Savda, Taluka Raver and fields bearing Survey No.
91/2, admeasuring 0 acre 29 gunthas and Survey No.
91/4, admeasuring 3 acres 4 gunthas, situated at
village Waghode, Taluka Raver. He was minor, aged
about 2 years, at the relevant time. The respondent
No. 2 – Sugrabi filed an application (Misc. Appln.
No. 86/1956) in the District Court for her
appointment as his guardian under provisions of the
Guardians and
ig Wards Act, 1890. The Court appointed
her as his guardian as per order dated 27th April,
1957, under section 7 of the Guardians and Wards Act,
1890. She was in possession of the suit properties
after the partition decree for and on behalf of both
of them. She alienated the field Survey No. 353
situated at village Savda by virtue of sale-deed dated
14th February 1961 in favour of original defendants
No. 2 and 3. They subsequently got the said field
partitioned. She also alienated the fields Survey No.
91/2 and Survey No. 91/4 to original defendant No.
9, which lateron changed hands and came to the shares
of original defendant No. 10 Sudhakar. He
transferred the same in favour of defendant No. 11
Hemantkumar during implementation of the Consolidation
Scheme.
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4. The respondent No. 1 – plaintiff asserted
that the transactions were not binding on him. He
demanded partition of his share. The defendants did
not accede to his demand and, therefore, he sued them
for partition and separate possession alongwith
declaration that the sale-deeds executed by the
respondent No. 2 – original defendant No. 1 were not
binding on him. He also claimed mesne profits.
5. The respondent No. 2 (original defendant No.
1) filed consent written statement (Exh-72).
6. The appellants resisted the suit. It was
their contention that the suit fields were in
exclusive possession of defendant No. 1- Sugrabi who
represented to them that she was competent to alienate
the same. They were unaware of the fact that she was
appointed as guardian of the plaintiff. They asserted
that the suit was barred by limitation. They further
asserted that the suit fields were alienated by
defendant No. 1 Sugrabi for the welfare and benefit
of her minor son – respondent No. 1 – Shaikh Gaffar.
They further asserted that she purchased a house
property bearing M.C. No. 68 at Jalgaon by utilizing
the consideration amount in respect of the sale
transactions. They asserted further that they are the
bonafide purchasers for valuable consideration and
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deserved legal protection. They also contended that
they have become owners by adverse possession.
Consequently, they sought dismissal of the suit.
7. The parties went to trial over issues struck
below Exhibit-73 by the learned Civil Judge. They
adduced oral and documentary evidence in support of
the rival contentions. The suit was dismissed by the
Trial Court. The Trial Court held that the suit was
barred by limitation. The Trial Court held that the
appellants were bonafide purchasers for valuable
consideration and deserved legal protection. The
first Appellate
ig Court reversed such findings. The
first Appellate Court came to conclusion that the suit
was not barred by limitation. The first Appellate
Court held that the defendants could not acquire
ownership by virtue of adverse possession, nor they
were bonafide purchasers. Hence, the appeal was
allowed and the suit came to be decreed.
8. This second appeal was admitted on a single
substantial question of law, which the then Hon’ble
Judge referred to as ground No. 2 in the appeal memo.
Instead of reproducing the said ground, I deem it
proper to redraft the substantial question of law as
follows :
“Whether, in the facts and circumstances of
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(6)the present case, respondent No. 2 Sugrabi
(original defendant No. 1) was competent to
transfer the suit properties without prior
permission of the Court under provisions of
the Guardians and Wards Act, 1890 and that due
to her omission to alienate the suit
properties without such permission, the
transactions became voidable at instance of
respondent No. 1 Shaikh Gaffar (plaintiff) ?”
9. Mr. V.J. Dixit, learned Senior Counsel,
would submit that the appellants were bonafide
purchasers
for valuable consideration and should have
been protected by the Court. He would submit that the
transactions of sale were entered into by respondent
No. 2- Sugrabi for welfare of the minor and, hence,
could have been saved by the first Appellate Court.
He would point out that a house property was purchased
by her by utilizing the consideration amount received
from the purchasers of the suit property.
10. On perusal of the impugned judgement, it is
amply clear that the question of limitation is
properly addressed by the first Appellate Court. The
respondent No. 1 – Shaikh Gaffar was minor at time of
both the sale transactions. He was born on 17th July,
1954. He was aged 21 years at the time of filing of
suit. He became major on 17th July, 1975. The suit
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was instituted on 27th January, 1977. Obviously, it
was filed within period of three (3) years after he
attained majority. The first Appellate Court
considered legal provisions contained in Article 8 of
the Indian Limitation Act in this behalf. The finding
of the Trial Court that the suit was barred by
limitation is totally incorrect and has been rightly
reversed by the first Appellate Court.
11. The only significant question to be determined
is whether the respondent No. 2 Sugrabi was legally
competent to alienate the suit properties during
minority
of the respondent No. 1 (plaintiff). There
is no dispute about the fact that he was appointed as
his guardian under provisions of the Guardians and
Wards Act. In case of a minor governed by Mahomedan
Law, the guardians of the property of a minor can be
only persons from following categories.
(i) the father;
(ii) the executor appointed by the father's will;
(iii) the father's father;
(iv) the executor appointed by the will of
father's father.
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The mother, brother or uncle, etc. cannot act as
legal guardian of a minor. The mother may be a de
facto guardian but would never be regarded as a de
jure guardian in respect of property of the minor.
The power of a guardian appointed by a Court to
dispose of movable property is limited to the extent
of movable properties. That too, it shall be so
disposed of carefully as a prudent man deal with it if
it were his own. This legal position is quite clear
in view of section 27 of the Guardian and Wards Act,
1890. Article 364 of the Mahomedan Law (by Mulla),
(19th Edition by M. Hidayatullah and Arshad
Hidayatullah)
would make it manifest that a de facto
guardian under Article 361 has no power to transfer
any right or interest in the immovable property of the
minor. Such a transfer would not be merely voidable,
but would be void. A mother is only a de facto
guardian and a bare custodian of property of minor
son. She does not possess power to sell, mortgage, or
otherwise deal with immovable property belonging to
the minor. She has no larger powers to deal with her
minor child’s property than a stranger or non-relative
who happens to have charge of the minor for time
being.
12. The principles of Mahomedan Law stated in the
treatise by Syed Ameer Ali (Vol. II, 5th Edition) at
pages 548 and 549 deal with the topic. It is well
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settled that the mother has no right, whatsoever, to
alienate the property of the minor. There is no
representation of estate in such a case. For, no
sooner deceased father of the respondent No. 1
(plaintiff) died, the shares of his only son and the
widow have been crystalized. They would inherit his
property as per their shares as tenants-in-common.
The separation of their shares by way of mutual
partition remains only to be done by way of subsequent
act of partition as a formality or matter of their
mutual understanding, as the case may be. They do not
inherit jointly. In other words, the mother cannot
represent the share of her minor son. She cannot bind
him by acts of her alienation. There is no question
of existence of legal necessity in such case of
alienation likewise a concept available under the
Hindu Law. It is obvious that respondent No. 1
(plaintiff) could have avoided sale transactions
entered into by the respondent No. 2 within period of
three (3) years after attaining majority. His suit
ought to have been decreed by the Trial Court in view
of the settled legal position. The first Appellate
Court was right while granting the decree of partition
and separate possession. The defence of bonafide
purchase is not available in such a case. For, the
purchasers were quite aware that the respondent No. 1
was minor. For, the sale deed dated 11th November,
1961 (Exh-158) clearly shows that minority of the
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respondent No. 1 was within knowledge of the
purchaser. So also, all the revenue entries as shown
in the revenue record go to show that she was
appointed as guardian of respondent No. 1 Shaikh
Gaffar. The evidence of the appellant do not show
that they made necessary inquiry as regards her
competency to alienate the suit fields. They did not
obtain legal advice before effecting purchases of the
properties of the minor. No inquiry was made as to
whether the respondent No. 2 Sugrabi had obtained
sale permission from the Court. Considering these
legal aspects, the impugned judgement is quite legal
and proper.
13. In the result, the appeal is without merits
and as such, is dismissed. No costs.
[ V.R. KINGAONKAR ]
JUDGE
NPJ/SA156-91
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