Madras High Court
M.A.Seyadu Abuthagir vs Noorunnissa on 26 November, 2018
Author: R.Subramanian
Bench: R.Subramanian
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 26.11.2018
Coram
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A(MD)No.224 of 2009
and
M.P(MD).No.1 of 2014
1.M.A.Seyadu Abuthagir
2.K.A.Jalaludeen ...Appellants
Vs.
1.Noorunnissa
2.Abdul Kader
3.M.A.Peer Mohammed
4.K.A.Buhari Sheriff
5.K.A.Al Amin ...Respondents.
(Respondents 2 to 5 were exparte
vide in EB)
Prayer:- Second Appeal filed under Section 100 of Civil Procedure
Code against the Judgment and Decree, dated 30.12.2008 made in
A.S.No.21 of 2008 on the file of the Principal Subordinate Judge,
Tirunelveli, reversing the Judgment and Decree dated 105.10.2007
made in O.S.No.625 of 2005 on the file of the Principal District
Munsif, Tirunelveli.
http://www.judis.nic.in
2
For appellants : Mr.H.Arumugam
For R1 : Mr.M.P.Senthil
For R2 : No appearance
For R3 to R5 : Exparte vide EB
JUDGMENT
The defendants 3 and 4 in O.S.No.625 of 2005 on the file of the Principal District Munsif, Tirunelveli are the appellants.
2.The suit was filed by the first respondent/plaintiff claiming 38/128 share in the suit property. According to the plaintiff, the suit property originally belonged to the parents of the defendants 1 to 3, who are brothers. The plaintiff is the wife of the first defendant. The further claim of the plaintiff is that the mother of defendants 1 to 3 namely Sulthan Beevi had executed a general power of attorney in favour of the first defendant on 06.05.1992 wherein she had represented herself as a natural guardian of defendants 2 and 3 describing them as minors. Pursuant to the said power, the first defendant sold the suit property to the plaintiff and the defendants 2 and 3. Basing her claim on the sale deed dated 06.05.1992, the plaintiff would seek partition and separate possession of her share in the property as stated above. http://www.judis.nic.in 3
3.The suit was resisted by the defendants contending that the very power of attorney executed by the mother is invalid for more than one reason. The first one is that both the defendants 2 and 3 who were described as minors were in fact majors on the date of the said power of attorney. It is also contended that even assuming that they were minors, the mother has no right to represent them as natural guardian and deal with their immovable properties. It was the further contention of the defendants that there was a partition in the family on 24.09.2004 under Exhibit B2 to which the first defendant was a party and the properties were shared between the three brothers and sisters. Therefore, the defendants would claim that the sale deed dated 06.05.1992 did not confer any right on the plaintiff.
4.On the above pleadings, the learned trial Judge framed the necessary issues and concluded that the power of attorney said to have been executed by the mother on 06.05.1992 which was marked as Exhibit A18 is not valid and legally binding on the defendants 2 and 3. Consequently, the learned trial Judge found that the sale deed dated 13.05.1992 would not confer any right on the plaintiff. The trial Court took note of the fact that there was http://www.judis.nic.in 4 registered partition among the sharers on 24.09.2004, pursuant to which, the properties subject matter of the suit were also divided among the legal representatives of the Aliyar Tharaganar. After the said partition, the defendants 2 and 3 had sold the properties to the defendants 4 to 6 under sale deed dated 30.09.2005 which was marked as Exhibit A2.The trial Court, as of fact, found that the defendants 2 and 3 were actually majors on the date of execution of power of attorney dated 06.05.1992 and dismissed the suit. Aggrieved by the said dismissal of the suit by the learned trial Judge, the plaintiff filed an appeal in A.S.No.21 of 2008 before the Principal Sub Court, Tirunelveli.
5.The learned Principal Subordinate Judge allowed the appeal and decreed the suit on the sole ground that the defendants 2 and 3 have not challenged Exhibit A1 and got it set aside. Aggrieved, the defendants 3 and 4 are on appeal.
6.I have heard Mr.H.Arumugam, learned counsel appearing for the appellants and Mr.M.P.Senthil, learned counsel appearing for the first respondent.
http://www.judis.nic.in 5 M.P.(MD).No.1 of 2014:
7.This petition has been filed to receive an additional evidence. The document sought to be filed is a sale deed to show that the property in Parasalai was purchased by the first defendant. This has been filed to answer the plea of the defendants 2 and 3 that the property at Parasalai found mentioned in the sale deed dated 13.05.2002 has been incorporated without any title, only with a view to have sale deed register there. I do not find this document would assist this Court in deciding the issues that arise in the appeal. Hence, this application filed under Order 41, Rule 27 of C.P.C is dismissed as unnecessary.
8.The following substantial questions of law were framed by this Court at the time of admitting the second appeal:-
“1).Whether the lower appellate Court is in independently deciding the suit without discussing and setting aside the judgment of the trial Court and without assigning any reasons as to how the trial Court was committed wrong in passing the judgment and hence the same warrants interference by this Court?(sic) http://www.judis.nic.in 6
2).Whether the lower appellate Court is correct in giving a finding that the appellants have not taken steps to set aside the sale deed marked as Exhibit A1, when no declaration is required if the document itself void as held by the Hon'ble Supreme Court?
3)Whether Ex.A1, Sale Deed, is void as per Section 28 of the Indian Registration Act, 1908 on account of registering the same before the sub-Registrar Office, Parassala at Kerala and whether the lower appellate Court has committed wrong in granting the relief solely on the basis of that sale deed and hence interference of this Court under Section 100 CPC?
4.Whether the lower appellate Court has committed wrong in decreeing the suit on the basis of Exhibit A1, sale deed, in which the mother of the Muslim Minor has entered into the sale as natural guardian when the Mohammedans Law contemplates in the absence of father, the grand father is the natural or legal guardian of the property of the minor and hence the Judgment of the lower appellate Court has to be set aside?
5.Whether the lower appellate Court has committed an error in granting relief to the 1st defendant/2nd respondent, when he remained exparte and not paid Court fee and the same warrants interference by this Court under Section 100 C.P.C?
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9.Substantial question of law Nos. 2 & 4:
9.1.These questions are taken up for consideration first as the decision thereon would resolve the other questions of law also.
9.2.The main contention of Mr.H.Arumugam, learned counsel for the appellants is that Exhibit A18 power of attorney is invalid on two counts. The first one is Mrs.Sulthan Beevi, wife of Aliyar Tharaganar being the mother of the defendants 2 and 3 could not have acted as their natural guardian and entered into an contract on their behalf in respect of the immovable properties. The second one is defendants 2 and 3 in the suit were actually majors on the date of the said document and therefore, the document is inherently void. For the very same reasons, Mr.H.Arumugam would contend that the sale deed dated 13.05.1992 marked as Exhibit A1 is also invalid as a mother had no right to deal with the property of Mohammedan minors.
9.3.Per contra Mr.M.P.Senthil, learned counsel for the first respondent would contend that D.W.1 in his evidence has admitted that the power of attorney and the sale deed were brought out by http://www.judis.nic.in 8 the first defendant in the interest of the family. Further, he would contend that the defendants 2 and 3 should have not sought for setting aside the document. Admittedly, the sale deed was registered at Parasala in Kerala and the same was not reflected in the encumbrance certificate. The lower appellate Court came to the conclusion that the defendants would not be entitled to resist the suit without seeking to set aside the sale deed dated 13.05.2002. I am unable to concur with the said view of the learned appellate Judge. The document which is void need not be set aside. A person who is not a party to the document or a person who is not bound by the document can ignore the document and seek reliefs as if the document never exists. In the case on hand, Exhibit A1 was executed on the basis of Exhibit A18 power of attorney. The power of attorney was executed by the mother, who is not a natural guardian under Mohammedan Law, hence, the power of attorney will not operate as legal power of attorney in order to clothe of power of alienation on the first defendant. Yet another important fact which has been omitted to be considered by the appellate Court is that the age of the defendants 2 and 3 on the date of the document. The Passport, Driving License and Transfer Certificate of the third defendant who is admittedly the youngest son has been http://www.judis.nic.in 9 produced. These documents would show that his date of birth is 14.12.1969. Therefore, as on the date of power of attorney i.e 06.05.1992, he was a major. Admittedly, the second defendant is the elder to the third defendant. Therefore, he should also have been a major on the date of the power of attorney. Once the minors have attained majority, the guardian cannot execute any document on their behalf. I find that the first defendant had played fraud in obtaining the power of attorney from the mother describing the persons who had attained majority as minors and he has effected alienation of the property in favour of his wife and his brothers also.
The said alienation would be void and not binding on the defendants 2 and 3.Therefore, the substantial questions of law 2 and 4 are answered in favour of the appellants and against the respondent.
10.In view of the above conclusion, the substantial questions of law 1 and 3 need not be answered.
11.Substantial Question of law No.5 11.1. From the Judgment and Decree of the lower appellate Court it is seen that the lower appellate Court has granted share to the plaintiff and the first defendant. The first defendant though remained exparte filed a written statement claiming a share. Once http://www.judis.nic.in 10 the sale deed is upheld, the first defendant as the brother would be entitled to the share and therefore, I do not find any illegality in the action of the lower appellate Court in granting the share to the first defendant. Therefore, the substantial question of law No.5 is answered in favour of the appellants.
12.The plaintiff does not got any right under Exhibit A1. Once the plaintiff has no right and the partition in the family is said to have been taken place on 24.09.2004 by way of registered instrument even prior to the suit filed, the lower appellate Court was not right in granting a decree in favour of the plaintiff and the 1st defendant on the ground that the defendants 3 and 4 have not sought for cancellation of the sale deed under Exhibit A1.
13.In fine, this second appeal is allowed. The Judgment and Decree of the lower Appellate in A.S.No.21 of 2008 is set aside and the Judgment and Decree of the trial Court are restored. The suit in O.S.No.625 of 2005 will stand dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is dismissed.
26.11.2018
Index : Yes/No
Internet : Yes/No
msa
http://www.judis.nic.in
11
To
1.The Principal Subordinate Judge, Tirunelveli
2.The Principal District Munsif, Tirunelveli
3.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 12 R.SUBRAMANIAN,J msa S.A(MD)No.224 of 2009 and M.P(MD).No.1 of 2014 26.11.2018 http://www.judis.nic.in