Madras High Court
Ameena Ammal And Anr. vs Saroja Ammal on 4 August, 1987
Equivalent citations: (1988)2MLJ44
ORDER K.M. Natarajan, J.
1. The revision is filed against the order of the Subordinate Judge, Nagapattinam in court-fee check slip issued in A.S. No. 53 of 1983.
2. The facts which are necessary for disposal of the above appeal are as follows: The petitioner herein is the third defendant and the appellant in A.S. No. 53 of 1983. The plaintiff in this suit, which is the subject-matter of the appeal are the minor, children of the first defendant, who is the mother and the second defendant is their brother, though the first wife. The appellant, who is the third defendant, is the purchaser of one of the items of the suit properties from the defendants 1 and 2. The plaintiff filed the above suit for partition and separate possession contending that the said transaction is not valid and binding on them as regards the first item which was sold to the third defendant. The plaintiffs paid Court-fee under Section 37(2) and in respect of the disputed item 1 under Section 37(1) of the Court-Fees Act. In the appeal the Court-fee Examiner verified the records and issued a check-slip to the effect that in the sale deed in favour of the third defendant by the defendants 1 and 2 on behalf of the minors, the plaintiff has to pay Court-fee under Section 37 (4) which attracts Section 40 of the Court-Fees Act viz., they should ask for cancellation of the said sale and pay Court-fee on the market value of the said item. The same was objected by this appellant but, the Court below overruled the same and upheld the court-fee check-slip and directed the revision petitioner to pay additional court-fee. Aggrieved by the same this revision is filed.
3. The learned Counsel for the petitioner mainly submitted that the rulings relied on by the learned subordinate Judge are not applicable to the facts of this case, Narasimhan Naidu v. S. Ayilu Naidu , is a case which relates to a sale deed executed by the natural guardian and mother without the previous permission of the Court and in view of Section 8(2) of the Hindu Minority and Guardianship Act, 1956 since the said transaction was effected without the permission of the Court, it was held to be voidable and not void. But, the said decision, as rightly pointed out by the learned Counsel is not applicable to Muslims as they are not governed by the Hindu Minority Act and the Court below is thoroughly wrong in holding that the reasoning in Narasimhan Naidu v. S. Ayilu Naidu (1), will apply even though the parties are Muslims in this case. The other decision referred to in the said order is one which is reported in Gopalakrishna Iyengar v. Srirengammal and Anr. , where Jagadeesan, J., held that in the above quoted case the son has filed a suit for recovery of possession of the properties which fell to the share of the mother in a partition and in those circumstances the said document purports to create certain rights in favour of the minor, he has to pay court-fee. But, that decision is not applicable to the facts of this case.
4. On the other hand, the learned Counsel for the petitioner drew my attention to the decision reported in Fathima Bivi v. Sadhakatalla , Ismail, J., as he then was, held:
Mohammadan Law, Guardianship and Specific Relief Act (1963), Section 33 (Corresponding to Section 41 of 1877 Act) - Mother, not a DE FACTO guardian under Mohammadan Law - No right to sell interest of minor children -Transaction not merely voidable, but is void.
The same view was reported in Parshotandas v. Bal Dhabu , where it was held:
Mohammadan Law - Co-heirs - one of the Co-heirs of the deceased Mohammadan not being a guardian of the minor-co-heir has no power in the property even for the purpose of discharging the debt of the deceased under the decree obtained against the minor. The transaction would be void and not merely voidable.
That was also a case where the mother executed the sale for herself and on behalf of the minor. He has also drawn my attention to the decision in Mohd. Amin v. Vakil Ahmad , where it was held:
Under the Mohammadan Law a person who has charge of the person or property of a minor without being his legal guardian, and who may, therefore, be conveniently called a 'DE FACTO guardian', has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant.
A deed of family settlement to which a Mohammadan minor is a party represented by his brother as DE FACTO guardian is void and not binding on the minor, irrespective of the considerations that it benefited him or the arrangement was followed, for a long period.
That was an alienation by the brother on behalf of the minor in the case of Muslim in which case it was held that it was void not only against the minor but also persons who claimed through him. It is clear from the above decision that the transaction in the instant case it only void and not voidable. Since it is well established proposition that when once it is held to be void, the question of cancellation or setting aside the alienation does not arise and no relief of cancellation need be asked. In this connection, the learned Counsel for the petitioner drew my attention to the decision in Nataraja Iyer v. Arunachalam , where it was held:
Where the alienations questioned are by a joint family manager, the plaintiff who questions the alienations need not pray for setting aside the alienations and the question of paying court-fees under Section 40 of the Madras Court-Fees and Suits Valuation Act does not arise. In a case where the joint family manager alienates the family properties, even though the minor coparceners are also mentioned as parties to the document, that would not lead to the conclusion that when the minor coparceners question the alienation, they would be obliged to pray for setting aside the alienation.
For all the above reasons I am of the view that the order passed by the Court below is unsustainable and liable to be set aside as the court-fee paid in the appeal is correct and the petitioner need not pay any additional court-fee, since there is no necessity for any relief of setting aside the sale in favour of the 3rd defendant.
5. In the result, the appeal is allowed and the order of the Court below is set aside. There will be no order as to costs.