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Judgment
1.This second appeal by the plaintiffs, is against the judgment & decree passed in Title Appeal No.9/2007 by the learned Civil Judge, Hailakandi
upholding and confirming the judgment & decree passed by the learned Civil Judge (Junior Division), in Title Suit No.63/2003, whereby the suit of the
plaintiffs/appellants was dismissed.
Brief facts leading to this second appeal were that the appellants herein, as plaintiffs filed a suit for declaration, that various sale deeds executed by
defendant No.2 as guardian of the plaintiffs were illegal and void, recovery of possession and other reliefs. The case of the plaintiffs/appellants was
that the suit land belonged to the father of the plaintiffs Late Surman Ali, who died in the year 1971. At the time of death of their father, the plaintiffs
were minors. After death of the father of the plaintiffs, their mother, defendant No.2, was married to one Azad Ali and the plaintiffs were looked after
and brought up by their maternal uncle and maternal grandmother. After attaining majority, the plaintiffs were in possession of the suit land. The
defendant No.1 claiming title over the suit land by right of purchase, instituted a suit under Section 6 of the Specific Relief Act, 1963, which was
decreed in favour of the defendant No.1. From the various sale deeds produced by the defendant No.1 in the said suit under Section 6 of the Specific
Relief Act, the plaintiffs could know that the father of the plaintiffs by executing sale deeds No.4978 & 2829 in the year 1968 and 1970 respectively
had sold total land measuring 1 bigha 4 kathas and 4 chataks to the defendant No.1. Thereafter, defendant No.2/mother of the plaintiffs as guardian of
the minor executed sale deeds No.1734, 5371, 5014 and 5018 in favour of the defendant No.1, while the plaintiffs were minors. The plaintiffs averred,
that their mother not being legal guardian, was not competent to transfer any land of the plaintiffs, who were minors at the relevant time and therefore,
the sale deeds executed in the years 1974, 1978, 1979 and 1980 by defendant No.2 were void and did not convey any title to the defendant No.1.
Hence, the plaintiffs brought the suit.
The case of the defendant No.1 was that the defendant No.2, for herself and as guardian of her minor sons executed sale deeds dated 06.03.1974,
14.06.1978, 21.05.1979 in favour of the defendant No.1, while the plaintiffs were minors. In order to cure the defect in the sale deeds executed by
defendant No.2 by way of ratification, the plaintiffs obtained an NOC from the Deputy Commissioner for executing a fresh sale/ratification deed and
the plaintiffs also executed an unregistered sale deed ratifying the transfer of the suit land by the defendant No.2, as no registration was required for
such ratification deed. On the basis of above pleading, learned Civil Judge Jr. Division (as was called then) framed the following issues:
Whether the plaintiffs have right, title and interest over the suit land?
Whether the purchase deeds of the defendant No.1 including the deed, relating to the sale of right of ekrar, is valid and legal?
Whether the plaintiffs are entitled to a decree relief(s) as prayed for?
Both the parties adduced evidence oral as well as documentary in respect of their claims and the learned trial Court dismissed the suit of the
plaintiffs.
Aggrieved, the plaintiffs/appellants preferred an appeal before the learned Civil Judge and by the impugned judgment and decree passed in Title
Appeal No.9/2007, learned Civil Judge dismissed the appeal and upheld the judgment and decree passed by the trial Court.
Aggrieved by the appellate judgment and decree dismissing the suit of the plaintiffs, the plaintiffs preferred the instant appeal. The second appeal
was admitted to be heard on the following substantial questions of law:
Whether the learned Courts below were correct in dismissing the suit of the appellant/plaintiff by holding that the so-called unregistered sale deed
dated 17.11.1989 (Exhibit-A) is genuine in absence of any opinion of expert whereas the appellants/plaintiffs have categorically denied their signatures
on it and the so-called buyer i.e., the respondent No.1/defendant No.1 neither deposed nor proved the said sale deeds to be a genuine one?
Whether the learned Courts below were correct in dismissing the suit of the appellants/plaintiffs in view of the fact that the respondent
No.2/defendant No.2 who executed deed of sale on behalf of the plaintiffs as minor in favour of respondent No.1/defendant No.1, was neither a
natural guardian nor a legally appointed guardian of the plaintiffs during their minority?
Whether the learned Courts below were correct in deciding the suit in favour of the respondents/defendants without discussing the material facts
and evidences on record and as such, the findings are perverse?
Learned counsel Mr. I.H. Laskar submitted, that under the Mohammedan Law, mother not being the legal guardian was not entitled to sell the
property of the minor as guardian and therefore, the sale deeds executed by the defendant No.2, the mother of the plaintiffs, as guardian of the minor
were illegal and void. The further contention of the learned counsel for the appellants was that even if some unregistered sale deed alleged to have
been executed by the plaintiffs, such unregistered sale deeds did not convey any title in view of Section 54 of the Transfer of Property Act and
Section 49 of the Registration Act. In support of his submission, learned counsel placed reliance on the following decisions:
Kanchan Hazarika and Ors Vs. Mororama Sharma reported in 2007 (1) GLT 715,
Syed Shah Gulam Ghouse Mohiuddin and Others Vs. Syed Shah Ahmad Mohiuddin Kamisul Qadri reported in AIR 1971 SC 2184,
Anowar Hussain Vs. Mrs. Golapjan and Anr reported in 2004 (3) GLT 12.
Mr. SK Ghosh, learned counsel for the respondents/defendants submitted that the father of the plaintiffs sold the land by sale deeds dated
10.06.1968, 13.02.1970 with a condition of re-conveyance and before expiry of the stipulated period of such re-conveyance, the father of the plaintiffs
died and the defendant No.2 executed the sale deed on 06.03.1974 as per the agreement between the father of the plaintiffs and the defendant No.1.
Further contention of the learned counsel was that even if the defendant No.2 is found incompetent to sell the land of the minors as guardian, the sale
deed in entirety cannot be held to be void, inasmuch as, mother of the plaintiffs also inherited the property left by Surman Ali, the father of the
plaintiffs, and therefore, the sale deed, in respect of the suit land at least to the extent of share of the defendant No.2, cannot be declared void.
There is no dispute that the father of the plaintiffs Late Surman Ali was the original owner of the suit land. Admittedly, by sale deed No.4978 dated
10.06.1968(Ext-C), the father of the plaintiffs sold 12 Katha, 2 Chataks of land and by sale deed No.2829 dated 13.04.1970, (Ext-D), late Surman Ali
again sold land measuring 12 katha, 2 Chataks. The plaintiff No.2 examining himself as PW-1 deposed that he had no objection in respect of sale deed
executed by his father. Although in the recital of the Exhibit-C sale deed, dated 10.06.1968, and Exhibit-D sale deed dated 13.04.1970, there was no
mention as regards the re-conveyance, it was admitted by both the parties as appeared from the pleadings that there was a condition of re-
conveyance and as the father of the plaintiffs died within the stipulated time of re-conveyance, the defendant No.2 for herself and also as guardian of
the plaintiffs executed the sale deed No.1734, proved as Exhibit-E for a consideration of Rs.1,000/-. Subsequently, sale Deed No.5014 proved as
Exhibit-G, deed No.5371 proved as Ext-F and sale deed No.5018 proved as Exhibit-H were also executed by the defendant No.2 in favour of the
defendant No.1 for herself and also as guardian of the plaintiffs, who were minors. There is no dispute that all those sale deeds were executed by
defendant No.2, mother of the plaintiffs for herself and also as guardian of the plaintiffs.
As per Clause-359 of the Mohammedan Law by Mulla, following categories of persons are recognised as legal guardian in respect of property of
a minor:
The father,
The executor appointed by the father’s will,
Father’s father,
The executor appointed by the will of the father’s father.
Besides, the legal guardian as indicated above, the Mohammedan law also recognizes the guardian of property of a minor appointed by the Court,
as well as de-facto guardian. The de-facto guardian as contemplated in Clause-361 of the Mohemmedan law by Mulla is used in contradistinction to
“de jure guardian†as defined in Clause-359 of the Mohemmedan law. A de-facto guardian unless appointed executor by the will of the father or
father’s father or appointed guardian by the Court, cannot alienate the immovable property of the minor. Any one, under whose care and
protection the minor remains is regarded as de-facto guardian, but such de-facto guardian is not competent to alienate the immovable property of the
minor. Status of mother is not more than a de-facto guardian.
In the present case, the mother of the plaintiffs, defendant No.2, was neither appointed as guardian of the property of minors by the Court nor,
was she appointed as executor by the will of the father or father’s father. Therefore, the defendant No.2, the mother of the plaintiffs did not have
any power or competence to transfer the immovable property of the minors.
The Apex Court in Syed Shah Gulam Ghouse Mohiuddin (supra) held that legal guardians are the father, the executor appointed by the
father’s will and the executor appointed by the will of the father’s father. No other relative is entitled to guardianship of the property of a
minor as a matter of right. Neither mother nor the brother is a lawful guardian, though the father or the paternal grandfather, may make the mother,
brother or any other person as executor or executrix of their will. The Apex Court in another decision in Meethiyan Sidhiqu Vs. Muhammed Kunju
Pareeth Kutty & Ors 1996 AIR 1003 held that father is the natural guardian and in his absence other legal guardians would be entitled to act. In their
absence, property guardian appointed by the Court would be competent to alienate property of the minor with the permission of the Court. Mother is
not a guardian for alienation of property of the minor and therefore, the sale deed by mother in respect of the property of the minor is void. What is
therefore, abundantly clear is that under Mohammedan Law, a mother cannot act as legal guardian of the minor child/children to alienate immovable
property of the minor, unless she is appointed by Court as guardian or made executor by the will of the father or fathers father of the minor.
The defendant in the instant case appears to have placed heavy reliance on Exhibit-B the alleged NOC issued by Additional Deputy Commissioner
for sale of land measuring 1 Bigha, 16 Katha, 6 Lechas covered by Dag No.141 Patta No.35 and an unregistered deed of ratification Exhibit-A,
allegedly executed by the plaintiffs and the defendant No.2, ratifying the sale deeds executed by the defendant No.2 in respect of the suit land as
indicated above. The contention of the learned counsel for the appellants with regard to Exhibit-A, the unregistered deed, which appears to be a
ratification sale deed, was that such unregistered sale deed did not convey any title in view of Section 54 of the Transfer of Property Act. No doubt
the plaintiffs’ pleaded case was that the Exhibit-B, NOC, as well as Exhibit-A, the unregistered deeds were obtained by fraud. But no evidence
was brought on record nor there was any pleadings stating the detailed particulars of fraud as required by order VI Rule 4 CPC. In absence of such
pleadings and evidence the plea of fraud obviously could not stand, therefore, learned Court below, perhaps came to the findings that Ext-A was
genuinely made. Argument of the defendant advanced before the Court below on the admissibility of Ex-A (the unregistered deed of ratification) was
that registration was not necessary for such deed, inasmuch as, there was no actual transfer of immovable property by Ex-A the ratification deed, and
such argument is found to have appealed to the learned Courts below.
Be that as it may, without entering into the controversy as to whether Ext-A being unregistered deed was admissible in evidence or not and
assuming for the moment that the plaintiffs executed the unregistered ratification deed Ext’A’ ratifying the sale deeds executed by defendant
No.2, the question that remains is whether the sale deeds executed by defendant No.2 could be ratified. Question of ratification will arise only when
the deed is only voidable and not void. Had the defendant No.2 been otherwise competent to execute the sale deeds to alienate the minors property as
legal guardian, the matter would have been different. Evidently the mother was not a legal guardian in the present case, having authority to alienate the
immovable property of the minor and as such, the sale deeds executed by defendant No.2 were apparently void. What is important to note is that there
was no question of ratification of the sale, when the sale deed executed by defendant No.2 in favour of the defendant No.1 was not merely voidable
but void and such void transaction could not be ratified by the minors even on attaining majority. When the sale deeds executed by the mother, who
was not the legal guardian as per Mohemmadan law and not competent to transfer the immovable property of the minor, were void, there was no
question of ratification and, as such, the minor even after attaining majority could not ratify such void transaction. This being the position, it is not
necessary to advert to further discussions whether ratification deed required registration or not in the facts and circumstances of the present case.
When mother is found to be not competent to execute the sale deeds in respect of the minors property, it can be held without hesitation that the sale
deeds, to the extent of alienating minors property were void and subsequent ratification could not cure such defects in the transfer of the property.
Having considered the nature of controversy involved in the present case as indicated above, and that there is no quarrel at the bar with regard to
the settled proposition of law, that transfer of immovable property of value of Rs.100 and above cannot be effected by an unregistered sale deed as
laid down in Kanchan Hazarika vs. Monoroma Sarma (supra) and Anowar Hussain and Golapjan & Anr (supra), I feel it unnecessary to burden this
judgment by citing the above authorities relied by the learned counsel for the appellant.
Both the Courts below failed to take into account this basic question of law, as to whether the mother was legal guardian or she was at all
competent to alienate the minor’s property in the present case. Both, the learned trial Court and the learned appellate Court proceeded on the
assumption that the NOC Ext-B and the unregistered deed Exhibit-A were genuine, as plaintiffs failed to prove their plea of fraud and on the basis of
such finding alone, dismissed the suit of the plaintiff, in entirety. While the defendant No.2 not being legal guardian of the minors was not competent to
alienate the immovable property of the minor and the sale deeds in respect of minors property were void at least to the extent of minors’ property,
the suit of the plaintiffs could not have been dismissed. In the teeth of the foregoing discussions all the three substantial questions of law are answered
in negative and decided in favour of the plaintiffs/appellants.
It is no doubt true, that the defendant No.2 being the wife of Late Surman Ali, the father of the plaintiffs, was also a legal heir of Surman Ali and
had the right to inherit the property left by her husband, to the extent of her entitlement as per Mohemmadan law. Therefore, necessarily the sale
deeds in respect of the suit land to the extent of share of defendant No.2 in the property left by Surman Ali could not be held to be illegal or void,
though the deeds in respect of the property of the minors were void and illegal. Apparently, no evidence was brought on record as to the extent of
share of the mother, defendant No.2 in the property left by late Surman Ali, nor the learned Courts below had gone into the said aspect of the matter.
When evidently the defendant No.2 was incompetent to alienate the property of the minor, the suit of the plaintiff could not have been thrown away on
the basis of Ext-A the unregistered deed of ratification. Having considered the matter in entirety, I am of the view that it will be in the fitness of the
matter to remit back the case to the learned appellate Court to decide as to the entitlement of the defendant No.2 in the property left by late Surman
Ali and to decide the appeal afresh. The impugned judgment and decree is accordingly set-aside.
Let the matter be remitted back to the learned appellate Court, which shall decide afresh the appeal in the light of the observations made above
and if necessary, affording the parties opportunity to adduce evidence. Since the matter is very old pending one, parties shall appear before the learned
Appellate Court on 26.04.2018 and no further notice need be issued to the parties.
Registry shall send down the LCR immediately.