Rajasthan High Court - Jaipur
Mst. Hurmat vs Karim Khan on 13 January, 1992
Equivalent citations: 1992(1)WLN148
JUDGMENT B.R. Arora, J.
1. This appeal is directed against the decree and judgment dated March 30, 1978, passed by the Additional District Judge No. 2. Jodhpur, by which the learned Additional District Judge No. 2, Jodhpur, allowed the appeal filed by Karim Khan and dismissed the plaintiff-appellant's suit.
2. Plaintiff Mst. Hurmat, on January 13,1962, filed a suit in the Court of the Munsif City, Jodhpur, against Karim Khan for eviction and arrears of rent with respect to a " Medi' in the house situated in Sindhiyon Ka Bas, inside Siwanchi Gate, Jodhpur. The case, as set-up by the plaintiff in the plaint, is that the plaintiff purchased the house situated in Sindhyon Ka Bas, inside Siwanchi Gate, Jodhpur, by a registered sale-deed from Poonam Chand. Poonam Chand and Chandan Raj purchased this house on October 7,1959, by a registered sale-deed executed by Karim Khan, Amardeen and Usman Khan (Sons of Allaha Rakha) and Mst. Dhapu (widow of Allaha Rakha). Chandan Raj thereafter, by a registered sale-deed Ex. B dated January 8, 1960, sold his share in the house to Poonam Chand. Poonam Chand, therefore, became the sole owner of this full house, who sold the house by a registered sale-deed dated August 27, 1962, in favour of the plaintiff Mst. Hurmat. Karim Khan (defendant) was inducted as a tenant by Poonam Chand in the Medi of the house in question on November 13, 1959, and a rent note Ex. 3 was executed by him in favour of Poonam Chand and Chandan Raj. The case of the plaintiff is that the defendant Karim Khan did not pay any rent to her since was given to him on September 11,1962, which was received by him on December 15, 1962, but the defendant Karim Khan did not pay the rent and thereafter by another notice dated July 3, 1963, the tenancy of the defendant Karim Khan was terminated by the plaintiff and the suit for eviction and recovery of arrears of rent was filed by the plaintiff against the defendant Karim Khan.
3. The suit was contested by the defendant Karim Khan. The stand taken by the defendant Karim Khan in the written statement was that the plaintiff is not the owner of the house in question and no relationship of landlord and tenant exists between the plaintiff and the defendant and he never paid any rent to the plaintiff. He, also, denied the execution of the rent note as well as the sale made in favour of Poonam Chand. It was further pleaded for partition against the plaintiff in the Court of the Civil Judge, Jodhpur, with respect to the same property and that suit is still pending and, therefore, the present suit is not maintainable.
4. On the basis of the pleadings of the parties, the learned Munsif City, Jodhpur, framed eight issues. The plaintiff, in support of her case, examined seven witnesses while the defendant, in support of his case, examined six witnesses. The learned trial Court, by its decree and judgment dated January 6, 1973, decreed the suit filed by the plaintiff. Dissatisfied with the decree and judgment dated January 6,1973, decreeing the plaintiff's suit, the defendant preferred an appeal before the learned District Judge, Jodhpur, which was transferred to the Court of the Additional District Judge No. 1, Jodhpur, for disposal. During the pendency of the appeal, the defendant moved an application under order 41 Rule 27 CPC for taking on record two documents i.e., the sals-deed Ex, A.3 dated October 7, 1959, executed in favour of Poonam Chand and Chandan Raj by Karim Khan and Ors. and Ex. A. 4-the statement of Bhure Khan S/o Shri Shera Khan, recorded on September 14, 1 964 in Civil Suit No. 343 of 1362 (Fatima v. Mst. Hurmat). The learned Additional District Judge No. 1. Jodhpur, allowed the application under Order 41 Rule 27 CPC and ordered for taking these two documents on record. He, also, allowed the appeal filed by the defendant and remanded the case to the trial Court for taking additional evidence on the sale-deed and to decide the case afresh in accordance with law after recording the evidence. After the remand of the case, the plaintiff did not produce any evidence, but the defendant produced four more witnesses to prove the sale-deed. The learned Munsif City, Jodhpur, thereafter, by its decree and judgment dated September 1, 1975, again decreed the suit filed by the plaintiff. Dissatisfied with the decree and judgment dated September 1, 1975, passed by the learned Munsif City, Jodhpur, decreeing the suit of the plaintiff for eviction as well as for recovery of arrears of rent, the defendant preferred an appeal before the learned District Judge, Jodhpur, which was transferred to the Court of the Additional District Judge No. 2, Jodhpur, for disposal. The learned Additional District Judge No. 2 Jodhpur, by its decree and judgment dated March 30, 1 978 allowed the appeal filed by the tenant (defendant) Karim Khan, set-aside the decree and judgment passed by the trial Court and dismissed the plaintiff's suit. It is against this decree and judgment dated March 30, 1978, that the plaintiff-appellant has preferred the present appeal.
5. Though various grounds were taken by the appellant in the Memo of Appeal, but the appeal was admitted by this Court only oh the following questions of law:
(1)-Whether in the facts and circumstances of the case, Karim Khan is estopped from challenging the title of his landlord Poonam Chand and consequently cannot challenge the validity of the sale-deed Ex. 3?
(2) Whether the learned District Judge was not right in examining the question that the sale-deed Ex. A. 3 was void ?
(3) Whether the sale-deed Ex. A. 3 is valid as it was executed by the de facto guardian of the minors Memuna Khatoon, Achan Bano, Lal Rakh, Mehar Khan, Mustak Ahmed and Ishak ?
Heard learned Counsel for the parties. Before going into the controversy raised by the learned Counsel for the parties, I would first like to consider the nature of the evidence produced by both the parties.
6. The plaintiff, in support of her case, examined seven witnesses and produced six documents, while the defendant, in support of his case, examined ten witnesses and placed on record two documents Ex. A. 3 and Ex. A. 4.
7. PW 1 is Tej Davi Das Pithani, Advocate, who has proved Ex. 1. the notice. He has stated that at the instructions of Karim Bux, and on his behalf, he gave notice Ex. 1 to Poonam Chand and a copy of the same was sent to Bhure Khan. PW 2 is Bhure Khan the husband of the plaintiff Mst. Hurmat. He has stated that he purchased the house in question for his wife Mst. Hurmat, who is a "PARDANASIN" lady, from Poonam Chand vide registered sale-deed dated August 28, 1962. He has also, proved Ex. 2. Ex. 3, Ex. 4 and Ex. 5. He has stated that Poonam Chand gave the Medi of the house on rent to the defendant Karim Khan on November 13,1 959, vide rent note Ex. 3. He has further stated that this house has four rooms at the ground-floor and one room at the first floor and one Medi, which is on rent with the defendant Karim Khan. He has also, stated that after purchasing this house, the possession of the house was taken by his wife Mst. Hurmat from Poonam Chand. The Medi in question was on rent with the defendant Karim Khan prior to the purchase of this house by her. He has, also, stated that the defendant did not pay any rent of the Medi to the plaintiff and, therefore, the notice Ex. 4 was given and the Acknowledgment Receipt of the notice, which was received by the defendant, is Ex. 5. In cross-examination, he admitted the initiation of the proceedings under Section 145 Cr. P.C. and the suit filed by Fatima with respect to the house in question. PW 3 is Shri Jatan Mal Tatia, who is the scribe of the rent-note Ex. 3 and has proved the contents of Ex.3. PW 4 Poonam Chand is the previous owner of the house, who has proved the sale-deed Ex. 2 as well as the rent note Ex. 3 and has stated that he sold the house in question by a registered sale-deed Ex. 2 to Mst. Hurmat and handed-over the possession of the house to her. At that the, Karim Khan was the tenant in the Medi at the monthly rent of Rs. 5/-, which he was paying to him and after the sale of the house, he informed Karim Khan that as the house has been purchased by Mst. Hurmant and, therefore, in future he should pay the rent to Mst. Hurmat. PW 5 Jatan Raj Tatia. PW 6 Poonam Chand and PW 7 Chandan Raj have been produced by the plaintiff to prove the sale-deed dated January 3, 1 960, by which Chandan Raj sold his share in the house to Poonam Chand. Jatan Raj is the scribe of Ex. 6, Poonam Chand is the person who purchased the house from Chandan Raj and Chandan Raj is the person who sold the house to Poonam Chand.
8. Now, coming to the documentary evidence, produced by the plaintiff-Ex. 1 is the notice dated August 4, 1 962, sent by registered post by Mr. T.D. Pithani, Advocate, to Poonam Chand on behalf of Karim Khan. A copy of this notice was sent to Bhure Khan. The notice states that Karim Khan sold the house, the particulars of which are given in the notice (the house in question) to you about three years back and handed-over the possession to you but the adjoining to this house there was a piece of land which was not sold to you and, therefore, you are advised not to sell that piece of land adjoining the house to any other person. Ex. 2 is the sale-deed dated August 27, 1962, with respect to the house in question, by which Poonam Chand sold the house in question to Mst. Hurmat for a consideration of Rs. 4500/-. Ex. 3 is the rent-note executed by Karim Khan defendant with respect to the Medi in question in favour of Poonam Chand. The Medi in question was taken on rent at the monthly rent of Rs. 5/-. The rent note is dated November 13, 1959, and the scribe of this rent note by Poonam Chand stating that after the sale of the house in question to Mst. Hurmat she will now be entitled to recover the rent from Karim Khan. Ex. 4 is the notice given by Mr. B.L Maheshwari, Advocate, on behalf of the plaintiff, by which the defendant Karim Khan was informed that the house in question has been purchased by his client by registered sale-deed dated August 27, 1962, and the defendant-tenant was asked to make the payment of rent of the Medi in question which he had not paid since August 28, 1962. Ex. 5 is the two Acknowledgment Receipts produced by the plaintiff showing the receipt of the notice by the defendant on December 15,1962, and July 6, 1963. Ex. 6 is the registered sale-deed dated January 18, 1960, executed by Chandan Raj in favour of Poonam Chand and by which Poonam Chand became the sole owner of the whole house in question. The scribe of this sale-deed is Jatan Raj Tatia, who has proved the sale- deed. This is all the evidence produced by the plaintiff.
9. The defendant, in support of its case, examined ten witnesses. DW 1 Karim Khan (defendant) has stated that the house in question belongs to Mst. Fatima and lal Mohammad is residing in it. Mst. Fatima is his grand-mother and he never sold this house to Poonam Chand and Chandan Raj. He has, also, denied the receipt of the notice Ex. 4. He has, also, stated that he did not receive any notice from Poonam Chand and Chandan Raj. He has, also, denied his signatures on the two receipts Ex. 5. He has, also, denied his acquaintance with Mr. T.D. Pithani, Advocate, and stated that he never instructed Mr. Pithani to give reply to the notice Ex. 1. He has, also, denied the execution of Ex. 2-the sale deed-made in favour of Mst. Hurmat by Poonam Chand, he has denied the ownership and title of Mst. Hurmat and Bhure Khan with respect to the house in question. He has stated that with respect to the house in question, proceedings under Section 145 Cr. PC are pending in the Court of the City Magistrate, Jodhpur, and a civil appeal regarding the partition of this house is, also, pending between Mst. Fatima and Mst. Hurmat. He has denied the relationship of landlord and tenant between the plaintiff and him and stated that he did not take the Medi on rent from Poonam Chand. He has, also, denied the fact regarding his residence in the Medi in question. DW 2 is Mohammed Khan, who has stated that Karim Khan (defendant) is not residing in the house of Mst. Hurmat. DW 3 Usman Khan has stated that he, Karim Khan and his other brothers never sold the house in question to Poonam Chand and Chandan Raj. DW 4 Peeru Khan has stated that Mst. Fatima was the owner of this house who is, now, dead and the owner of this house is, now, Lal Mohammed, who resides in this house. Lal Mohammed is the grand-son of Mst. Fatima and the son of Karim Khan. As Lal Mohammed was looking after Mst. Fatima and, therefore, Mst. Fatima, by way of a will, gave this house to Lal Mohammed and Mst. Hurmat is not the owner of this house. DW 5 is Akhtar Khan, who has stated that the house in question belongs to Lal Mohammed and Karim Khan is not residing in this house. He has, also, admitted that he filed an affidavit in the Court of the City Magistrate, Jodhpur. DW 6 is Lal Mohammed, who has stated that he resides in the house in question and has filed a suit in the Court of the Civil Judge, Jodhpur, for declaration of his title with respect to this house. He has stated that he has got a share in this house. He has further stated that Civil Judge, Jodhpur decreed the suit in his favour and admitted his share in the house in question. DW 7 is Pahad Khan, who has proved the sale-deed dated November 7, 1959 (Ex.A.3) and stated that the name of the father of Karim Khan is Allah Rakha Khan. Karim Khan has two brothers and five sisters. He owns a house in Sindiyon Ka Bas, inside Siwanchi Gate, Jodhpur, near to his house. The sale-deed Ex. A. 3 bears his signatures A to B. He is a witness to the execution of this sale-deed. In the cross- examination, he has admitted that the house in question was mortgaged by Allaha Rakha in favour of Poonam Chand and for the payment of the debt, the house was sold as the legal heirs of deceased Allaha Rakha were not in a position to make the payment of the loan. Though he has stated that he cannot say whether Karim Khan was living on rent in the house in question or not, but he has, also, stated that there is possibility that he might be living in the house by executing a rent note. He has, also, stated that in the Medi, Lal Khan is residing. DW 8 Poonam Chand has proved Ex. A. 3 and has stated that he purchased this house from Karim Khan and while executing Ex.A.3, Karim Khan signed the sale-deed on the minors. He has, also, admitted the pendency of the civil suit No. 318 of 1963 filed by Mst. Fatima with respect to the house in dispute in the Court of Civil Judge, Jodhpur, DW 9 Jatan Mal is the scribe of Ex. A. 3 who has proved Ex. A. 3. DW 10 is Bhure Khan, who has admitted the statement Ex.A. 4.
The documentary evidence, produced by the defendant is, Ex. A. 3-the sale deed dated November 7,1959, which was executed by Karim Khan, Amardeen and Usman Khan (sons of Allaha Rakha) and Mst. Dhapu (widow of Allaha Rakha). The sale-deed was executed by these persons on their own behalf as well as on behalf of other minors and legal representatives of deceased Allaha Rakha. Mst. Dhapu executed this sale-deed on her own behalf as well as the natural guardian of Miss Memuna Khatoon and Miss Achan Bano. Karim Khan executed the sale-deed on his behalf as well as the natural and legal guardian of Lal Mohammed, Mehru Khan, Mustaq Ahmed and Ishaq-his minor brothers. Amardeen executed the sale- deed on his behalf as well as on behalf of Babu (aged about two months at that time) as the legal and natural guardian of minor Babu. Ex.A. 4 is the statement of Bhure Khan dated September 14, 1964, recorded in civil Suit No. 343 of 1963 (Mst. Fatima v. Mst. Hurmat).
10. This is all the evidence produced by both the parties.
11. The first controversy raised in this appeal is regarding the applicability of the principle of estoppel in the present case. According to the learned Counsel for the appellant, the relationship of landlord and tenant has been established in the present case the therefore, the respondent-tenant Karim Khan is estopped from challenging the title of the appellant under Section 116 of the Evidence Act. In support of its case, the learned Counsel for the appellant has placed reliance over: Gauri v. Ude and Ors. AIR 1942 Lahore 153, Udai Chand v. Suraj Mal 1969 WLN 43, Muddada Chavanna v. Sri Kondoamma Swami Varu (the Unreported Judgment SC 1969 (1) 345), Baba Lal and Ors. v. Kanhaiya Lal 1975 WLN 37 and Sri Ram Pasricha v. Jagannath and Ors. . The learned Counsel for the respondent, on the other hand, has supported the decree and judgment passed by the learned Court below and submitted that there cannot by any estoppel against the statute. He has further submitted that the question of estoppel is not applicable in the present case as the sale-deed dated November 7,1959 (Ex.A.3) is a void document because the defacto guardians have no right to transfer the land of the minor under the Mohammedan Law and, therefore, a void document did not confer any title on the purchaser. His further submission is that the plaintiff is having only a derivative title and, therefore, in a case of derivative title, the principle of estoppel is not applicable. In support of its case, the learned Counsel for the respondent has placed reliance over: Ali Mohammed v. Ram Niwas and Anr. , Bindeshwari Singh v. Har Narain Singh and Ors. AIR 1929 Oudh 189 : AIR 1935 Calcutta 1107 (no such authority is reported on this page), Maritime Electric Co. Ltd. v. General Dairies Ltd. AIR 1937 PC 114, Smt. Premila Devi and Ors. v. Peoples Bank of Northern India Limited AIR 1938 PC 284 (this authority is not applicable because it relates to a company matter), Sudhansa Kanif v. Mahindra Nath and Bhabboot Mal v. Sens Mal . The learned Counsel for the respondent, in his argument, has placed reliance on the judgment alleged to be reported in AIR 1935 Calcutta 1107, but there is no judgment reported at this page.
12. The law which has been propounded is the judgments relied upon by the learned Counsel for the parties is that the principle of estoppel is not applicable against a statute or law and the estoppel cannot make a void transaction a valid one. A man, who took possession from the landlord as a tenant, cannot be allowed to turn-round and say that the man, under whose title he took possession, has no legal title. Once the relation of landlord and tenant is established, the tenant in such a suit is estopped from challenging the title of the landlord as per Section 116 of the Evidence Act.
13. Estoppel is not merly a technical rule but is founded in the public convenience and policy. The doctrine of estoppel enshrined in Section 116 of the Evidence Act operates between the landlord and the tenant and applies not only when it is shown that the landlord put the tenant into possession but, also, applies in cases where the person already a tenant, becomes the tenant of other and binds the tenant during the continuance of the tenancy. For the applicablity of the principle of estoppel, two conditions are essential, viz., firstly, the possession, and secondly, the permission. Possession has to be given to the tenant with the permission of the landlord and when a permissive enjoyment is established, the relationship of landlord and tenant is created and a person, who took the possession of the premises as a tenant, is estopped from disputing the title of the land-lord and cannot be allowed to say that the landlord had no legal title at the time when he was put in possession and if a subsequent purchaser is able to prove that the tenant's possession over the premises was given by the predecessor in title then the principle of estoppel will apply.
14. Both the Court below, after discussing the evidence on record, came to the conclusion that the defendant was the tenant of Poonam Chand, who put, the defendant Karim Khan in possession of the house. The trial Court decreed the suit on that basis by making that the principle of estoppel is applicable while the first appellate Court came to the conclusion that the principle of estoppel is not applicable qua the plaintiff because the defendant can challenge the derivative title. The defendant can challenge the derivative title only where the landlord himself did not induct the tenant into the land/premises and claims his possession through assignee, donee, heir and so on so forth, and in that case the tenant can show that the plaintiff does not possess the derivative title he claims, but in is in some other person. But in a case where the defendant himself sold the house to Poonam Chand and Chandan Raj and was party to the transaction and a legal heir of deceased Allaha Rakha and had a specific share in the property and in that circumstance he is estopped from challenging the sale-deed Ex. A.3 in favour of Poonam Chand and Chandan Raj on the ground that it is illegal and void. When Poonam Chand to some other person. His only case is that the transaction is illegal and void and does not confer any right in favour of Poonam Chand. The defendant cannot be allowed to challenge the legality of the sale deed by which he himself was benefitted. The learned lower appellate Court held that the relationship of landlord and tenant exists between Poonam Chand and Karim Khan and as such Karim Khan is estopped from challenging the title of Poonam Chand, which flows from Ex.A.3. When the defendant is estopped from raising this plea against Poonam Chand then he is, also, estopped from raising this plea against the plaintiff. The estoppel binds the tenant and the persons claiming through him and if a subsequent purchaser has been able to prove that the defendant executed a rent-note in favour of Poonam Chand and Chandan Raj, who sold the house to the plaintiff then the Evidence Act from disputing the ownership of the plaintiff, also, with respect to the property in question on the basis of the sale-deed executed in his favour. From the evidence produced by the plaintiff as well as the defendant, it is proved that Ex.A. 3 was executed by Karim Khan and others in favour of Poonam Chand and Chandan Raj and later on Chandan Raj sold his right in favour of Poonam Chand and Poonam Chand sold this house by a registered sale-deed to the plaintiff, it is, also, proved from the evidence on record that the defendant Karim Khan executed a rent-note in favour of Poonam Chand and the defendant Karim Khan is in possession of the Medi of the house at the monthly rent of Rs. 5/-. Both the Courts below, also, gave a specific finding this Shri Karim Khan executed rent note Ex. 3 in favour of Poonam Chand and Chandan Raj was put in possession of the Medi in question by Poonam Chand and was the tenant of Poonam Chand since November 13, 1959. Defendant Karim Khan, alongwith Amardeen, Usman Khan and Mst. Dhapu clothed Poonam Chand with an apparent ownership and right of disposition thereof with respect to the property in question and now he is estopped from asserting that the transaction was void or illegal against the appellant, who purchased the house from Poonam Chand for a valid consideration in good faith. In order to escape from the liability, no one can be allowed to put forward a plea that what he did was illegal or not in accordance with law and the Courts should decline to assist such persons who came forward and sold the house in question. In my view, the defendant Karim Khan has, thus, earned a disability to raise such a plea against the plaintiff-appellant, also, and is precluded and estopped to raise this objection.
15. The next point, which requires consideration in the present case, is; whether the learned Additional District Judge was right in examining the question regarding the validity of the sale-deed Ex.A. 3 ? No issue was framed on this point by the learned trial Court nor were the parties asked to adduce evidence on this point. Even the parties did not produce any evidence on this point and there is no sufficient evidence on record, on the basis of which the validity of the sale-deed Ex.A.3 could be decided. The defendant did not set-up any case challenging the validity of the sale-deed Ex.A. 3 nor Ex. A.3. was on record at that time. It was only during the course of appeal that an application under Order 41 Rule 27 CPC was made and this document was taken on record but still thereafter the case was remanded only to prove Ex.A.3. No issue was framed regarding the validity of the document. Neither there were pleadings to this effect nor was any evidence produced by either of the parties in this regard. In absence of the fact pleaded and issue framed, this controversy cannot be decided and as such the learned District Judge was not justified in deciding the question which requires a detailed enquiry in the matter.
16. The next point, which requires consideration is: whether the sale-deed executed by the de-facto guardians of the minors is valid? Though there is no sufficient evidence on record, on the basis of which the matter can be finally decided, as I have observed earlier, but the point of law: whether a de facto guardian can execute a sale-deed on behalf of the minors, also, to discharge the debts of the deceased, can be decided and I propose to decide the same.
17. Under the Mohammedan Law de facto guardian has no power to transfer any right or interest in the immovable property of the minors and such a transfer is not merely voidable but is void one, so far as the interest of the minors is concerned. According to the learned Counsel for the defendant the sale-deed Ex.A. 3 is void ab initio and is not voidable and in support of its case, he has placed reliance over the judgment of the Supreme Court rendered in: Mohammed Amin and Ors. v. Vakil Ahmed and Ors. AIR 1962 SC 238 and Parshottamdas Narainbhai and Ors. v. Bai Dhabu and Ors. . The learned Counsel for the appellant, on the other hand, has submitted that the defendant was not entitled to raise this objection as he is estopped from raising this objection and the Court is not required to go into this controversy. Alternatively, he has submitted that the sale-deed Ex.A 1 is void only upto the minor share and the defendant, who is a tenant in the Medi in question, which does not belong to the minor's share and, therefore it is not open to the defendant to raise such a controversy. In support of its case, the learned Counsel has placed reliance over: Maimunnisa and Ors. v. M.S.IM.IM. Abdul Jabbar and Ors. .
18. I have considered the rival submissions made by the learned Counsel for the parties.
19. It is not in dispute that the mother, brother, uncle, etc. are not the legal guardians of the minors. They are only the de facto guardian. Legal guardian of the property of the minors, according to Mohammedan Law, are the father, the executor appointed by the father's Will, the father's father, the executor appointed by the Will of the father's father. A de facto guardian, namely, mother or brother has no power to transfer any right or interest in the immovable property of the minors and a transfer made by a de facto guardian of the minor's property is void ab initio. But the question which further requires consideration in the present case, is: whether the transaction is void as a whole or is void so far as the interest of the minors is concerned ? In the case of Mohammed Amin and Ors. v. Vakil Ahmed and Ors. , a deed of family settlement was executed by and between the various share-holders of one Haji Abdul Rehman embodying an agreement in regard to the distribution of the properties belonging to the Estate and the plaintiff No. 3 was a minor aged about nine years and he was represented by the plaintiff No. 1, who acted as the guardian and executed the deed of settlement for and on him behalf. It was held by the Supreme Court in the case of Mohammed Amin that a deed of family settlement, to which a Mohammadan minor is a party, represented by his brother, is void and is not binding on the minor irrespective of the consideration that it benefitted him or the arrangement was followed for a long period. The Apex Court though before it no contest was made by the parties, in para No. 1 5 of the judgment observed that "if the deed of settlement was, thus, void, it could not be void only qua. the minor-the plaintiff No. 3- but is void altogether qua all the parties including those who was sui Juris. This fact could not be and was not a matter of fact contested before us." In that case the Apex Court was considering the deed of family settlement embodying an agreement in regard to the distribution of the property belonging to the estate of the deceased, which could not be bifurcated and it was not possible that one part may be upheld and the other part may be declared as void, but in the present case, the question relates to the sale-deed and there is a wide distinction between a document of family settlement and a contract of sale, where the defendant Karim Khan alongwith Amardeen, Usman Khan and Mst. Dhapu sold the property in question by selling their own share as well as they fraudulently represented themselves as the guardians of the minors and, also, sold the property of their (minors') share, transferred the house, handed-over the possession and took the house (Medi) on rent. The Rules applicable to the family settlement, in my view, cannot be extended to the sale made by the persons who are parties to the proceedings in respect of their own shares. The nature of the family settlement is not identical to that of a contract of sale. The sale-deed in the present case can be divided into two parts, first, part that is executed by the major persons on their own behalf and the other part which is executed by the de facto guardians on behalf of the minors. Both the parts can be divided and the validity of the sale made by the major persons on their own behalf can be maintained while the sale deed executed on behalf of the minors by the defacto guardians can be declared as void. The sale made by Karim Khan, Amardeen, Usman Khan and Mst. Dhapu on their own behalf is, thus, perfectly valid, but so far as the sale, made by the de facto guardians on behalf of the minors is concerned, it is void and the effect of it is that they cannot execute the sale deed on behalf of the minors. Moreoever, so far the Supreme Court's case is concerned, neither this point was agitated before the Supreme Court nor was it considered by the Supreme Court and, therefore, the conclusion, which is not preceded by reasoning or rationale, cannot be deemed to be a law having a binding effect, as contemplated under Article 141 of the Constitution of India, in view of the judgment of the Supreme Court in the case of the State of Uttar Pradesh and Anr. v. Synthetics and Chemicals Ltd., and Anr. . As the case of Mohammed Amin v. Vakil Ahmed (supra) is not founded on reasonings nor it proceeds on the consideration of the issue and as such it cannot be said to be a law on the point, as contemplated under Article 141 of the Constitution of India. In my view, the whole of the sale-deed Ex.A.3 cannot be said to be void. It is only void qua the minors and not against Karim Khan, Amardeen, Usman Khan and Mst. Dhapu, so far their shares are concerned. The sale- deed Ex. A. 3 is, therefore, void so far as the interests of the minors are concerned and is good so far as the major executants of the sale-deed Ex.A. 3 are concerned and their share did pass in pursuance to the sale-deed Ex.A.3 in favour of Poonam Chand and ultimately to the plaintiff.
20. So far as the present Medi is concerned, that does not fall within the share of the minors and, therefore, the appellant is entitled for the decree of eviction as well as the arrears of rent. Even otherwise, the defendant Karim Khan is estopped from raising any such plea. It may, however, be made clear that any of the findings, arrived at by me, will not affect the jurisdiction of the trial Court to decide the validity of the sale deed in a regular suit if it is so filed and the suit will be decided on the basis of the evidence led by the parties.
21. The last contention, raised by the learned Counsel for the appellant is with regard to the allowing of the application under Order 41 Rule 27 CPC by the learned District Judge vide its order dated July 27, 1973. In this respect, suffice it to say that this ground has been taken by the learned Counsel for the appellant in the Memo of Appeal. But this Court , while admitting the appeal, did not consider this ground as a fit one and the appeal was not admitted on that ground and was admitted only on the three questions of law, mentioned above, and it was a specifically mentioned that no other question of law arises in this appeal and, therefore, the appellant cannot be allowed to agitate that point. The contention raised by the learned Counsel for the appellant is, therefore, devoid of any force and deserves to be rejected. Moreoever, when once the application has already been allowed, the case was remanded and the additional evidence relating to these documents has already been adduced. The appellant if he had any grievance with respect to the order then he could have approached this Court against the decree and judgment dated July 27, 1973, passed by the learned District Judge immediately thereafter, but he waited till the other party led the evidence and participated in the proceedings. Now the appellant cannot be permitted to raise this ground in the appeal.
22. In the result, I allow this appeal, set-aside the decree and judgment dated March 30, 1978, passed by the Additional District Judge No. 2, Jodhpur, and restore the decree and judgment dated September 1, 1975, passed by the learned Munsif City, Jodhpur, and decree the suit of the plaintiff against the defendant-tenant for eviction as well as recovery of arrears of rent. The defendant is allowed two months' time to hand-over the vacant possession of the suit premises, provided he furnishes an undertaking for the delivery of the vacant possession to the plaintiff and pay the arrears of mesne profit within one month from today and continues to pay the same.