Sidhiqu Vs. Muhammed Kunju Pareeth Kutty & Ors  INSC 1 (2 January 1996)
K.G.B. Pattanaik (J)
1996 AIR 1003 1996 SCC (7) 436 JT 1996 (1) 578 1996 SCALE (1)498
O R D
counsel on both sides. The facts are not in dispute.
appeal by special leave arises from the judgment and decree of the Kerala High
Court passed on September
9, 1986 in Second
Appeal No.296/82. Admittedly, the appellant is a purchaser of the property from
the 1st respondent who was a minor at that time and the property was sold
through his mother as guardian. The question raised in this caseis, whether the
sale is valid and whether the appellant has perfected his title. Admittedly,
the sale was effected in 1949. The trial Court and the appellate Court upheld
the right of the respondent but the High Court reversed the same and held that
since the sale by the mother as a guardian was void in law, the appellant could
not get valid title.
are co-owners of the properties. One co-owner cannot claim prescriptive right
against another co-owner and in view of the fact that the plea was not raised
that he asserted adverse title, disclaiming the right under the sale deed and
that the respondent had acquisced to it, the plea of adverse possession was not
sustainable in law. The High Court decreed the suit of the respondent. Thus
this appeal by special leave.
learned counsel for the appellant has contended that since the father Mohammad Kunju
died, the mother is the natural guardian and the sale made by her as guardian
of the respondent, therefore, is not void. We find no force in the contention.
"Principle of the Mohammadan Law" [Ninteenth Edition] by Justice M. Hidaytullah,
former Chief Justice of this Court and Arshad Hidayatullah, deals with legal
property guardians of a muslim minor in Section 359. In the order, only father,
executor appointed by the father's will, father's father and the executor
appointed by the will of the father's father, are legal guardians of property.
No other relation is entitled to be the guardian of the property of a minor as
of right; not even the mother, brother or uncle but the father or the paternal
grand-father of the minor may appoint the mother, brother or uncle or any other
person as his executor or executrix of his will in which case they become legal
guardian and have all the powers of the legal guardian as defined in Sections
362 and 366 of the above Principles. The Court may also appoint any one of them
as guardian of the property of the minor in which case they will have all the
powers of a guardian appointed by the court, as stated in Sections 363 to 367.
Section 360, it is stated that in default of the legal guardians mentioned in
Section 359, the duty of appointing the guardian for the protection and
preservation of the minor's property falls on the Judge as representing the
State. The Court may appoint any other person as guardian of the property of
the minor. In so doing, the Court should be guided by all the powers in the
circumstances to be for the welfare of the minor. The court may appoint mother
as guardian of the property of the minor son in preference to his paternal
uncle. The fact that the mother is a Pardanashin lady is no objection to her
appointment. In Section 362, the legal guardian of the property of a minor has
no power to sell the immovable property of the minor except in the cases
he can obtain double its value;
the minor has no other property and the sale is necessary for his maintenance;
there are debts of the deceased, and no other means of paying them;
there are legacies to be paid, and no other means of paying them;
the expenses exceed the income of the property;
the property is falling into decay;
the property has been usurped, and the guardian has reason to fear that there
is no chance of fair restitution.
v. Mutsaddi [(1918) 45 I.A. 73] the Judicial Committee envisaged the grounds on
which and the circumstances in which the property of a minor could be alienated
by legal guardian.
in his "Principles of Mohammadan Law" also has stated in Section 261
that neither mother, nor brother, nor the uncle can without the authority of
the Court deal with the property of a minor. Asaf A.A. Fyzee in Section 34 has
reiterated the same principles. In Venkama Naidu v. S.V. Chistry [AIR 1951 Mad.
399], the Madras High Court had held that after the father's death, the mother,
as the guardian of the minor, has no power to execute a sale deed.
the sale deed executed by the mother was held to be void and inoperative under mohamaddan
law by Syed Ameer Ali [Vol .2] also it is stated at page 500 that unless mother
is appointed by the father as the guardian of his minor children's estate or is
so appointed by the Judge, she has no power to intermeddle with their immovable
property. All her dealings with the property are ipso facto void. In case the
minor has no means of support except the property, she must apply to the court
for sanction in order to deal with the property.
is the natural guardian and in his absence other legal guardians would be
entitled to act. In their absence, property guardian appointed by the competent
court would be competent to alienate property of the minor with the permission
of the court. When a sale is to be made on behalf of the minor the necessary
ingredients are that the sale must be for the benefit of the estate of minor
and, therefore, the competent person entitled to alienate the minor's property
would be, subject to the above condition, either the natural guardian or the
property guardian appointed by the Court. In this case after the demise of the
father no property guardian was appointed. The mother, therefore, is not
guardian for the alienation of the property of the minor. The sale made by the
mother, therefore, is void.
question then is: Whether the appellant has perfected his title by adverse
possession. The High Court in the judgment has held that:
is also true that the trial couet and the appellate court found that even after
the date of Ext.B1 or A1 on 10.10.1949 the plaintiff or defendants 1 and 2 were
not in possession. The exclusive possession of the 3rd defendant from
10.10.1949 or the non- participation of the income by the plaintiff by itself
may not amount to adverse possession as between co-owners.
also the mere fact that the 3rd defendant who was in exclusive possession
executed documents and put the transferees in possession of the property also
will not prove ouster or adverse possession. As a matter of course plaintiff
can not be fixed with knowledge of those documents simply because of the fact
that they are registered documents. Registration of the documents by itself can
not operate as notice to the plaintiff that third defendant was holding the
property adverse to him and dealing with it as full owner. Knowledge ouster and
exclusive possession with the requisite animus are facts to be alleged and
proved by defendants 3 and 4 in O.S.208/78 who pleaded adverse possession.
is no such plea and there is no such proof also. No such plea or proof is
evident from the judgment of the courts below.
order to constitute adverse possession the other co-owners out of possession
must be proved to have had notice of the assertion of hostile title and
exclusive possession ousting them with the requisite animus for the statutory
period. It must be pleaded and proved. There is no such plea or proof and no
such plea or proof could be found out from the judgments of the courts below
also. As earlier stated the peculiar position of the 3rd defendant, the
relationship, the dependency and illiteracy of defendants 1 and 2 and the
minority of the plaintiff are all factors which indicate absence of knowledge
on the part of the plaintiff regarding the animus, if any, entertained by the
3rd defendant. The courts below found adverse possession on insufficient
pleadings and in the absence of legal evidence to that effect. That generates a
substantial question of law by which the finding has to be reversed and I do
so. If so, defendants 3 and 4 in O.S. 208/78 could have only the position of
co-owners and the plaintiff is entitled to partition and recovery of his
share." It is, therefore, clear from the above facts that unless there is
a specific plea and proof that the appellant had disclaimed his right and
asserted hostile title and possession to the knowledge of the respondent within
the statutory period and the latter acquiesced to it, he cannot succeed to have
it established that he perfected his right by prescripetion. The High Court has
taken the fact that there is neither a plea nor proof in this behalf. We cannot
find any infirmity in this finding. Under these ciurcumstances, the finding that
the appellant has perfected his title by prescription is clearly illegal. In
this case we are concerned only with the validity of the sale in respect of the
share of the respondent-plaintiff and not of the share of the mother.
appeal is accordingly dismissed and the judgment and decree of the High Court
is upheld. No costs.
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