SECTION 108 OF B.R. VERMA'S COMMENTARY ON MOHAMMEDAN LAW:
108. Power of guardian.- A legal guardian shall be entitled to exercise the following powers:
(a) He may sell or mortgage immovable property of the minor in the following cases (but not otherwise)
(i) where he can obtain double the value of the property;
(ii) where it is necessary to do so for the maintenance of the minor, the minor having no other property'
(iii) where debts are due from the deceased person from whom the minor inherits the property or any legacies have to be paid and there are no means of paying them;
(iv) where the expenses exceed the income of the property;
(v) where the property is falling into decay;
(vi) where the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution ;
(vii) where it is to manifest advantage of the minor.
(b) he may borrow money and sell or pledge the movable imperative property of the minor where the necessity, such as, for food, clothing or nursing.
(c) He may carry on business on behalf of the minor if it can be done by ordinary prudence and there is no reason to believe it to be hazardous.
(d) He may enter into any contract on behalf of and for the benefit of the minor.
(e) He may surrender a right or preemption of the minor,
IN THE HIGH COURT OF PUNJAB AND HARYANA
Decided On: 12.05.2009
Gulzar Singh Vs. Julphan and Ors.
Hon'ble Judges/Coram:
Vinod Kumar Sharma, J.
Citation: Gulzar Singh vs. Julphan and Ors. (12.05.2009 - PHHC) : MANU/PH/0455/.
1. This judgment shall dispose of R.S.A. Nos. 972 & 973 of 2007 titled Gulzar Singh v. Julphanand Ors., as both these appeals arise out of the same judgment and decree.
2. For the sake of brevity, facts are being taken from R.S.A. No. 972 of 2007.
3. The plaintiff/appellant brought a suit claiming possession by way of specific performance of agreement to sell dated 24.5.1993 and 17.6.1993, said to have been executed by guardian of Julphan minor.
4. It was pleaded, that by way of agreement dated 24.5.1993 the minor defendant/respondent Nos. 1 and 2 had agreed to sell land measuring 5K-3M. However, in spite of permission by the Court defendant failed to execute the conveyance deed. It was also pleaded that the plaintiff was willing and still willing to perform his part of contract.
5. The suit was filed on 20.7.1994. Respondents No. 1 and 2, i.e. minor filed another suit on 30.7.1994, to challenge the agreement dated 24.5.1993 to be null and void and not binding on the rights of the plaintiff/respondents No. 1 and 2.
6. The suit was contested, primarily on the plea, that the agreement dated 24.5.1993 was not enforceable, in law as respondent No. 1 and 2 are Mohammedan and guardian of a Mohammedan could not dispose of the property of the minor.
7. The learned trial Court, decreed the suit filed by the plaintiff/respondents No. 1 & 2 by holding, that once permission of sale was granted, and in pursuance thereto, part of the land was sold, in order to purchase more land for respondents No. 1 & 2. It could not be said, that the agreement was not enforceable in law. The suit was ordered to be decreed. The defendant/appellant challenged the judgment and decree passed by the learned trial Court. The learned lower appellate Court reversed the judgment and decree passed by the learned trial Court, and dismissed the suit.
8. The reasoning given by the learned lower appellate Court to reverse the judgment and decree passed by the learned trial Court, reads as under:
45. As already discussed, this fact is not disputed that the appellants are Mohammedans and are governed by the Mohammedan Law. This fact is also not disputed that the agreements to sell dated 24.5.1993 Ex.D1 and 17.6.1993 Ex.D8 have been executed by Niaz Mohammad, their father as a guardian of the appellants. This fact is also not disputed that on the date of execution of both the agreements to sell, appellants were minors.
46. Copy of petition Ex.DW4/l shows that the petition under Section 8 of the Hindu Minority and Guardianship Act was filed by Niaz Mohammad, father of the appellants for seeking permission to sell the suit land. The then learned Senior Sub Judge, Jagadhri vide order dated 6.5.1994 (Copy Ex. D14) has granted the permission. There is absolutely no dispute that the provisions of Hindu Minority and Guardianship Act are not applicable to the appellants as they are Mohammedan and are governed by the Mohammedan Law. Niaz Mohammad should have filed the petition under the provisions of Guardianship and Wards Act, 1890, Section 10(3) of the Guardianship and Wards Act provides that the application for seeking permission should be accompanied by a declaration of willingness of the proposed guardian to act and declaration must be signed by him and attested by at least two witnesses.
47. Admittedly, there is no such compliance in the instant case. Thus, even if the argument of learned Counsel for the respondent No. 1 that mere mentioning of wrong provision of law is of no consequence, is accepted, even then, from the copy of petition Ex.DW4/a there is no escape from the conclusion that there was no compliance of Section 10(3) of the Guardianship and Wards Act, 1890. Thus, the permission granted by the then Senior Sub Judge, Jagadhri vide order dated 6.5.1994 (copy Ex.Dl4) has no legal value. This permission has also become redundant as one of the appellant Julfan has attained majority even during the pendency of the suit i.e. before the sale deed was executed. Moreover learned Counsel for the parties have made a joint statement before this Court that Niaz Mohammad, father of the appellants has already died during the pendency of the appeals. So, this permission has elapsed automatically.
48. This fact is also not disputed by the learned Counsel for the parties that Niaz Mohammad being father of the appellant falls within the definition of legal guardian as defined under Section 105 of the B.R. Verma's commentary of Mohammedan Law (8th Edition) and Section 359 of the Mulla's Principles of Mohammedan Law (19th Edition) by M. Hidayatullah and Asshad Hidayatulla. The powers of legal guardian have been defined under Section 108 of the B.R. Verma's commentary on Mohammedan Law and under Section 362 of the Mulla's Principles of Mohammedan Law. These provisions are almost identical. However, in B.R. Verma's commentary on Mohammedan Law Section 108(b), 108(c), 108(d), 108(e) have been further provided after seven exceptions in which legal guardian is competent to sell or . mortgage the property of the minors. In order to clarify the position, both the provisions are reproduced as under:
SECTION 108 OF B.R. VERMA'S COMMENTARY ON MOHAMMEDAN LAW:
108. Power of guardian.- A legal guardian shall be entitled to exercise the following powers:
(a) He may sell or mortgage immovable property of the minor in the following cases (but not otherwise)
(i) where he can obtain double the value of the property;
(ii) where it is necessary to do so for the maintenance of the minor, the minor having no other property'
(iii) where debts are due from the deceased person from whom the minor inherits the property or any legacies have to be paid and there are no means of paying them;
(iv) where the expenses exceed the income of the property;
(v) where the property is falling into decay;
(vi) where the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution ;
(vii) where it is to manifest advantage of the minor.
(b) he may borrow money and sell or pledge the movable imperative property of the minor where the necessity, such as, for food, clothing or nursing.
(c) He may carry on business on behalf of the minor if it can be done by ordinary prudence and there is no reason to believe it to be hazardous.
(d) He may enter into any contract on behalf of and for the benefit of the minor.
(e) He may surrender a right or preemption of the minor,
SECTION 362 OF THE MULLA'S PRINCIPLES OF MOHAMMEDAN LAW: 362. Alienation of immovable property by legal guardian.- A legal guardian of the property of a minor (S. 359) has no power to sell the immovable property of the minor except in the following cases, namely, (i) where he can obtain double its value;.(2) where the minor has no other property and the sale is necessary for his maintenance; (3) where there are debts of the deceased, and no other means for paying the; (4) where there are legacies to be paid, and no other means of paying them; (5) where the expenses exceed the income of the property; (6) where the property is falling into decay; and (7) when the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution.
49. The aforesaid provisions clearly provides that a legal guardian of the property of a minor has no power to sell the immovable property of the minor except in seven exemptions mentioned in both the provision.
50. Learned Counsel for the respondent No. 1 has mainly relied upon the provisions of Section 108(a)(vii) and 108(d). of B.R. Verma's commentary on Mohammedan Law. Section 108(a)(vii) provides that legal guardian can sell the immovable property of the minor if it is to manifest advantage of the minor and Section 108(d) provides that he may enter into any contract on behalf of and for the benefit of the minor. In my opinion, Section 108(d) does not relate to the sale of immovable property of the minor; rather it relates to any other type of contract for the benefit of the minor. So, Section 108(d) had no application in the instant case. As far as sale/alienation of minor's property is concerned, the same is only covered by the provisions of Section 108(a) & 108(b). The provisions of Section 108(b) are also not applicable in the case as it is not the case of the respondent No. 1 that the contract to sell the property of the minors was with a view to borrow the money with necessity of food, clothing or nursing.
51. Section 362 of the Mulla's Principles of Mohammedan Law has been recognized by the Hon'ble Supreme Court in case Meethiyan Sidhiqu. v. Muhammed Kunju Pareeth Kuttyand Ors. (supra). This authority has been relied upon by learned Counsel for both the parties, so, the principle of law laid down in this authority is being relied upon by both the parties i.e. appellants as well as respondent No. 1 para No. 9 of this authority reads as under:
9. Further 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 the 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.
52. As per the above rule of law laid down by the Hon'ble Apex Court in the above authority when the 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 the minor. Thus, the competent person entitled to alienate the property of the minor would be subject to the conditions provided under Section 362 of the Mulla's Principles of Mohammedan Law.
53. The other relevant authority on this aspect is Mrs. Eishu Chugani v. Rang Lal Agrwalaand Ors. (supra). In this authority the Hon'ble Calcutta High Court has laid down as under:
Admittedly in the instant case the minor had other properties. There is no evidence on record to show that the property was in a bad state of decay. Therefore, in the absence of further evidence it could not be said that the guardian was within his power to sell the property and that their sale as valid. There is also no circumstantial evidence on record to show that the guardian was entitled to sell the minor's share in the properly. Therefore, it is evident that the vendors failed to justify the sale of the minor's share in the property by their vendors and so failed to make out a marketable title to the said property.
54. In the instant case also, there is no evidence on file to show that the property of the minor was in bad state of decay which could have necessitated the sale. There is also no dispute that the minor appellants also had other property.
55. In the agreement to sell Ex.D1 this fact is not mentioned that the appellants are minors; rather Niaz Mohammad and Roshni, parents of the appellants have executed the agreement of their behalf as well as on behalf of the appellants. There is no averment in the agreement Ex.D1 dated 245.1993 as well as in the agreement Ex.D8 dated 17.6.1993 that the contract for sale was made for the manifest advantage and benefit of the minors which was a basic condition for the competency of the legal guardian to alienate the property of the minors-appellants as per Section 108(a)(vii) of B.R. Verma's commentary on Mohammedan Law.
56. As per Section 362 of the Mulla's Principles of Mohammedan Law which has been even recognized by the Hon'ble Supreme Court in case Meethiyan Sidhiqu v. Muhammed Kunju Pareeth Kuttyand Ors. MANU/SC/0269/1996 the property of the minor can only be disposed of by the legal guardian in seven eventualities i.e. where he can obtain double its value; were the minor has no other property and the sale is necessary for his maintenance; where there are debts of the deceased, and no other means of paying them; where there are legacies to be paid, and no other means of paying them; where the expenses exceed the income of the property; where the property is fallen into decay; and finally when the property has been usurped, and the guardian has reasons to fear that there is no chance of fair restitution.
None of the aforesaid conditions are satisfied in this case. There is no evidence on file to show that the minor appellants are getting double value of the property i.e. suit land by the disputed sale; there is no recital in the agreement or even in the plaint that the sale of the property is necessary for maintenance, for payment of any debt or legacy. There is also no evidence or plea that the expenses excess the income of the property or that the property is falling into decay and the property has been usurped by any other person.
57. Much stress has been laid down by the learned Counsel for the respondent No. 1 that after the sale of the property by the parents of the appellants, the land has been purchased in their names. The purchasing of other property in the names of the minors does not fall in all the seven exemptions of Section 362 of the Mulla's Principles of Mohammedan Law. Moreover, the property in the name of minor appellants has already been purchased on 28.9.1993.
58. Even if for the sake of arguments it is assumed that Niaz Mohammad legal guardian/father of the appellants has contracted to sell their property for their benefit, the said agreement is not enforceable against the wishes of the minors. To support this view reference can be made to the case O.G. Shankar and Anr. v. S. Veer a Sameera Kumar Dev and Anr. (supra). In this authority, Hon'ble Andhra Pradesh High Court has laid down that an agreement to sell executed by the natural guardian of the minor without permission of the District Court is not enforceable even if the said agreement is found to be for the benefit of the minor. It is categorically mentioned that minor can avoid such alienation by expressing his view and by his conduct without the necessity of filing a suit. Thus, in these circumstances, as the conditions provided under Section 382 of the Mulla's Principles of Mohammedan Law are not satisfied and no legal permission was taken for the sale of appellant's property, hence the appellants can avoid the agreement to sell.
59. There is no recital in the agreement Ex.D1 and Ex.D8 that Niaz Mohammad had contracted to sell the suit land for manifest advantage and benefit of the minor appellants. Thus, even the conditions specified under Section 108(a)(vii) of B.R. Verma's commentary on Mohammedan Law for the sale of immovable property of the minor by the legal guardian is not fulfilled.
60. Consequently, agreements Ex.D1 and Ex.D8 for the sale of the property of the minors Niaz Mohammad, their father, cannot be held to be legal and valid.
61. Even if for the sake of arguments, it is assumed that the agreements Ex.D1 and Ex.D8 came into existence in a legal manner, the question arises as to whether these agreements are enforceable against the minor appellants or not.
62. Learned Counsel for the respondent No. 1 has relied upon the case Manik Chand and Anr. v. Ramchandra (supra). In that case the minor plaintiffs were purchasers of the property. They were not the vendors. The said judgment of the Hon'ble Supreme Court relates to the powers of a Hindu guardian to bind a minor in a contract for the purchase of the property. Present appellants are Muslims. Provisions of Hindu Minority and Guardianship Act have no application to them. Moreover, the disputed agreement is for the sale of the property of the minors. Thus, the said authority is quite distinguishable on facts.
63. As already mentioned, in the initial agreement Ex.D1 dated 24.5.1993 this fact is no where mentioned that Niaz Mohammad is executing the agreement while acting as a guardian of the minor appellants; rather vide agreement Ex.D1 Niaz Mohammad and Roshni Devi his wife for themselves and on behalf of their sons Julfan and Iblal have agreed to sell the land. In the agreement Ex.D8 dated 17.6.1993 also Niaz Mohammad has taken the responsibility on behalf of his minor sons Julfan and Iqbal and had agreed to sell that property. Thus, vide these agreements Niaz Mohammad had taken the responsibility for the sale of the property of the minor appellants. Ex.D1 is a composite agreement regarding the share of Niaz Mohammad, Roshni and their sons i.e. present appellants.
64. Admittedly, the appellants were not signatories to both the agreements. Hon'ble Supreme Court in case Kartar Singh v. Harjinder Singhand Ors. MANU/SC/0158/1990 : A.I.R. 1990 (S.C.) 854 has laid down that where the vendor entered into an agreement for himself and on behalf of his sister, sister refused to sell the share, specific performance can be granted in respect of vendor's share only. Our own Hon'ble High Court has also followed this authority in case Balkar Singh v. Mohabat Singhand Ors. (supra). In that case father had included the minor's property/share in an agreement to sell. Hon'ble High Court held that decree for specific performance of agreement to sell can be granted only to the extent of the share of the father on payment of proportionate price. In the instant case also Ex.D1 is the basic agreement which is a composite agreement regarding sale of the share of the parents and minor appellants. Agreement Ex.D1 has been executed by Niaz Mohammad and Smt. Roshni, parents of the minor appellants, however, their share has also been included in the agreement to sell. Agreement Ex.D8 is only in continuation of the agreement dated 24.5.1993.
65. Our own Hon'ble High Court in case Darbara Singh v. Karminder Singhand Ors. (supra) has also laid down that the agreement against minor is not enforceable. In case Sh Daya Ram v. Smt. Raksha Kumari and Anr. (supra), our own Hon'ble High Court has laid down that a minor after attaining majority can repudiate the contract even without filing suit and there is no law forcing him to file a suit to avoid the contract. Hon'ble Supreme Court has also laid down in case Amirtham Kudumbah v. Sarnam Kudumbah (supra) that the transfer made by the father during his son's minority was voidable at the instance of his son who was the real owner and any person purchasing such property from the natural guardian obtained only a defensible title.
66. Hon'ble Supreme Court in case Kailathil Sreedharan and Anr. v. Momath Pandyala Prasana and Anr. 1993(2) LJR 644 has laid down that where no sanction is obtained, contract regarding sale of the property of the minor is void. Though, this authority is under the provisions of Hindu Minority and Guardianship Act, but, the principle of law laid down in this authority is applicable to the case in hand because in this case also no provisions of Guardians and Wards Act, 1890 for the sale of the minor's property. Conditions provided under Section 362 of the Mulla's Principles of Mohammaden Law are also not fulfilled. So, Niaz Mohammad was required to obtain the permission for the sale of the property of minor appellants under the relevant provisions of law. Thus, as per the law laid down by the Hon'ble Apex Court in this authority even the contract of sale of the property of minor is void if no permission from the court is obtained and this authority hits bottom of the claim of the respondent No. 1
67. Thus, in view of the consistent rules of law laid down in the cases referred above by the Hon'ble Apex Court and our own Hon'ble High Court, the authorities Roomanand Ors. v. Siri Niwas (supra) and Babu Gyanu v. Mohammad Sardarand Ors. (supra), relied upon by the learned Counsel for the respondent No. 1 are of no help to him. Moreover, in case Babu Gyanu v. Mohammad Sardarand Ors. (supra), the property of minor's was sold by their mother with the consent and approval of the Collector under derivative authority, so, in that case mother of the minor had sanction/approval for sale of property of the minor.
68. The cases Mohinder Singh and Ors. v. Guljit Singh (supra) and Netam Venkatarammana and Ors. v. Maharkali Narasimham (supra) have no application to the facts of the case because in those cases there was no dispute regarding the sale of minor's property.
69. Thus, in these circumstances, as the appellants have repudiated the contact i.e. agreements to sell Ex.D1 and Ex.D8, hence, the same are not enforceable against the appellants.
70. Thus, keeping in view my aforesaid discussion, I am of the considered opinion that the agreements to sell Ex.D1 dated 24.5.1993 and Ex.D8 dated 17.6.1993 are not legal and valid and are not binding on the rights of the appellants. Consequently, appellants are entitled for injunction restraining the respondents from interfering in their possession over the suit property in any manner. Hence, the findings of learned trial court on issues No. 1 and 2 framed in civil suit No. 403 of 1994 stands reversed to that extent. However, the execution of the agreements to sell Ex.D1 dated 24.S.1993 and Ex.D8 dated 17.6.1993 is proved and has not been seriously disputed before this Court. So, issue No. 1 framed in civil suit No. 404 of 1994 stands answered in favour of the respondent No. 1.
71. Learned trial court in para No. 10 of the impugned judgment had come to the conclusion that the plaintiff was always willing and ready to perform his part of the contract. Nothing adverse has been argued by the learned Counsel for the appellants about the ready and willingness of respondent No. 1 to perform his part of the agreements. On that aspect evidence adduced by the respondent No. 1 has gone unrebutted. Thus, respondent No. 1 is proved to be ready and willing to perform his part of the contract. Hence, findings of learned trial court on this aspect stands affirmed and consequently, issue No. 2 framed in civil suit No. 404 of 1994 also stands answered in favour of respondent No. 1.
72. As already discussed, the agreements dated 24.5.1993 Ex.D1 and dated 17.6.1993 Ex.D8 are not legal and valid nor these can be legally enforced against the appellants, so respondent No. 1 is not entitled for specific performance of these agreements. Consequently, issue No. 3 framed in civil suit No. 404 of 1994 stands answered against the respondent No. 1.
73. Issues No. 4 to 11 framed in civil suit No. 404 of 1994 were the legal issues and learned Counsel for the appellants as well as for respondents No. 2 and 3 have not addressed any arguments on these issues before this Court. So, all these issues stand answered against the appellants.
74. In view of my findings above, as the agreements to sell dated 24.5.1993 Ex.D1 and dated 17.6.1993 Ex.D8 are not legal and valid and are not legally enforceable, so, suit of the appellants for declaration is perfectly maintainable and they have every locus standi to file and maintain the suit for declaration. Hence, the findings of learned trial court on issues No. 3 and 4 in civil suit No. 403 of 1994 also stands reversed.
9. The learned Counsel appearing on behalf of the appellant contends that this appeal raises the following substantial question of law:
Whether the judgment and decree passed by the learned lower appellate Court is perverse in holding that the agreement dated 24.5.1993 was not enforceable in law by ignoring the permission granted by the Guardian Court?
10. In support of the substantial question of law, the learned Counsel for the appellant contends, that it was duly proved on record, that the permission for sale was obtained by the guardian of the minor under the Hindu Minority & Guardianship Act, therefore, it could not be said, that the agreement executed by minor through guardian was not enforceable.
11. The learned Counsel for the appellant also contends, that the learned lower appellate Court committed an error in coming to the conclusion that respondents No. 1 & 2 being Mohammeden were not governed by Hindu Minority and Guardianship Act, therefore, the permission was required to be taken under the Guardianship and Wards Act, 1890.
12. The contention of the learned Counsel for the appellant is, that even under the Guardianship and Wards Act, 1890, no such permission could be obtained, therefore, the learned Courts below, committed an error in holding that as the permission was not granted under the Guardianship and Wards Act, 1890, therefore, the agreement could not be enforced. 13. The contentions raised by the learned Counsel for the appellant are totally misconceived.
14. Learned lower appellate court rightly held that in the absence of pleadings and proof that the sale was for the benefit of the estate and there was compliance of Section 362 of the Mulla's Principles of Mohammedan Law, the permission granted was to be treated to be void. It cannot be disputed that the property of a minor Mohammedan can be sold only if the sale is for the benefit of the estate and it further complies with the stipulation under Section 362 of the Mulla's Principles of Mohammedan Law. The learned court further held that after the death of the father of a minor the mother could , not act as a guardian for effecting the sale.
15. The contention of the learned Counsel for the appellant that the learned lower appellate court erred in law in rejecting the permission of the court merely because the same was granted under the Hindu Minority and Guardianship Act instead of Guardian-. ship and Wards Act, 1890. The contention is that mere wrong mention of provision of law cannot be a ground to reject the order passed by the court of competent jurisdiction. This plea again is misconceived as Hindu Minority and Guardianship Act was not applicable nor could the permission be granted under the Guardianship and Wards Act, 1890 in the absence of conditions provided under Section 362 of the Mulla's Principles of Mohammedan Law having been complied with.
16. In view of the clear position of Mohammedan law introduced by the learned lower appellate court, the guardian of the minor was rightly held to be not capable of executing the sale deed on behalf of the minor in view of the permission granted under the Hindu Minority and Guardianship Act. the substantial questions of law raised are, therefore, answered against the appellant.
No merit.
Dismissed.
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