Holding

The sale by the mother, who was not a legal guardian under Mohammadan law, is void and the purchaser has not acquired title by adverse possession.

Summary

The case concerned a sale of immovable property belonging to a Muslim minor, whose father had died. The mother, acting as guardian, executed the sale to the appellant in 1949. The question before the Supreme Court was whether, under Muslim law, the mother could be a legal guardian of the minor’s property and thus validly alienate it, and whether the appellant could acquire title by adverse possession. The Court held that under Sections 359‑367 of the Principles of Mohammadan Law only the father, his appointed executors or a court‑appointed guardian may deal with a minor’s property; the mother, not appointed, had no authority to sell, rendering the deed void. The Court also found no pleadings or evidence of adverse possession by the appellant, so his title could not be perfected by prescription. Consequently, the Supreme Court dismissed the appeal and upheld the High Court’s decree in favour of the minor.

Issues considered

Whether the mother, as unappointed guardian, had authority under Mohammadan law to sell the immovable property of a minor
Whether the sale deed executed by the mother is void
Whether the purchaser can acquire title by adverse possession against the minor co‑owner
Whether co‑owners can claim prescriptive rights against each other in the absence of a specific plea and proof

Subjects

Mohammadan lawminorguardiansale of immovable propertyvoid contractadverse possessionprescriptionco‑ownerspartition

Judgment

'< MEETHIYAN SIDHIQU A
v.
MUHAMMED KUNJU PAREETH KUTTY AND ORS.

JANUARY2, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] B

Mohammadan Law:

Legal Property Guardians of Muslim minor-After demise offather no
property guardian appointed-Hence mother not guardian for alienation of
the property of minor-Therefore sale made by mother void.
c
Jmambandi v. Mussaddi, (1918) 45 I.A. 73 & Venkama Naidu v. S. V.
Chistry, AIR (1951) Mad. 399, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1663 of 1996.
D
~ From the Judgment and Order dated 8.9.86 of the Kerala High Court in
S.A. No. 296 of 1982.

E.M. S. Anam for the Appellant.

N: Sudhakaran for the Respondents E
The following Order of the Court was delivered :

Leave granted.

Heard counsel on both sides. The facts are not in dispute.
F
This 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 !st re-
spondent who was a minor at that time and the property was sold through his
mother as guardian. The question raised in this case is. whether the sale is
~ valid and whether the appellant has perfected his title. Admittedly, the sale G
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. Parties 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 H
11
12 SUPREME COURT REPORTS [1996] 1 S.C.R.
A 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.

Shri Anam, learned counsel for the appellant has contended that since
B 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.

Mulla's "principle of the Mohammadan Law'' [Ninteenth Edition] by
Justice M. Hidayatullah, former Chief Justice of this Court and Arshad
c Hidayatullah, deals with legal property guardians of a muslim minor in Sec-
tion 359. In the order, only father, executor appointed by the father's will, .I
t
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 motller, brother or uncle but
'D the father or the paternal grand-father of the minor may appoint the mother,
brother of 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,
E
as stated in Sections 363 to 367.

In Section 360, it is stated that in default of th.e legal guardians men-
tioned 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
F State. The Court may appoint any other person as guardian of the property of
the minor. In so d~ing, 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 un-
cle. The fact that the mother is a pardanashin lady is no objection to her ap-
G pointment. 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 (1)
where he_ can obtain double its value; (2) where the minor has no other prop-
erty and the sale is necessary for his ·maintenance; (3) where there are debts of
the deceased, and no other means of paying them; (4) where there are legacies
to be paid, and no other means of paying them; (5) where the expenses exceed
H the income of the property; (6) where the property is falling into decay; (7)
M. SIDHIQU v. M.K.P. KUTTY 13
when the property has been usurped, and the guardian has reason to fear that A
there is no chance of fair restitution.

Jn lmambmuli v. Mursaddi, (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.
B
Tyabji in his "Principles of Mohammadan Law" also has stated in Sec-
tion 261 that neither mother, nor brother, nor the uncle can without the author-
ity of the Court deal with the property of a minor. Asaf A.A. Fyzee in Section
34 has reiterated the same principles. Jn Venkama Naidu v. S. V. Chistry, AIR
( 1951) Mad. 399, the Madras High Court had held that after the father's death, C
the mother, as the guardian of the minor, has no power to execute a sale deed.
Therefore, the sale deed executed by the mother was held to be void and inop-
erative under mohamaddan law.

Jn Mumammadan 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 D
minor children's ~state 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 fact() void. In case ininor has no means of support except the property,
she must apply to the court for sanction in order to deal with the property.
E.
Father 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 F
property would be, subject to the above condition, either the natural guardian
or the property guardian appointed by the Court. Jn 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. G

The question then is : Whether the appellant has perfected his title by
adverse possession. The High Court in the Judgment has held that: tc.-

"lt is also true that the trial court and the appellate court found that
even after the date of Ext.Bl or AI on 10.10.1949 the plaintiff or H
14 SUPREME COURT REPORTS [1996] l S.C.R.
defendants 1 and 2 were not in possession. The exclusive possession
of the 3rd defendant from 10.10. l 949 or the non-participation of the
income bY• the plaintiff by itself may not amount to adverse posses-
sion as between co-owners. So also the mere fact that the 3rd defend-
ant 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 it-
self 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 exclu~ivc 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. There is no such plea and there
is no such proof also. No such plea or proof is evident from the judg-
ment of the courts below.
) In order to constitute adverse possession the other co-owners out of
possession must be proved to have had notice of the assertion of hos-
tile title and exclusive possession ousting them with the requisite
animus for the statutory period .. It must be pleaded and provsd. 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 depend-
ency and illiteracy of defendants 1 and 2 and the minority of the plain-
tiff are all factors which indicate absence of knowledge on the part of
the plaintiff regarding the animus, if any, entertained by the 3rd de-
fendant. 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 0.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 has 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 prescription. The High Court has taken the fact
that there is neither a plea nor proof in this behalf. We cannot find any infir-
M. SIDHIQU v. M.K.P. KlJITY 15
mity m this finding. Under these circumstances, 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 re-
spondent-plaintiff and not of the share of the mother.

The appeal is accordingly dismissed and the judgment and decree of the
High Court is upheld. No costs.

G.N. Appeal dismissed.