Syed Yaseen Vs. Smt. Reshma and Another - Court Judgment

Excerpt:
(this r.s.a. is filed under section 100 of cpc against the judgment and decree dated 8.3.2010 passed in ra no.51/2007 on the file of the presiding officer, ftc-1, bangalore rural district, and etc.) 1. in this regular second appeal, the appellant is calling in question the judgment and decree dated 08.03.2010 passed by the district and sessions judge, fast track court, bangalore rural district, bangalore, in r.a.no.51/2007 thereby allowing the appeal filed by the appellant – respondent no.1 herein and declaring that the judgment and decree dated 19.01.1993 passed in o.s.no.397/1992 by the learned civil judge (jr.dn.) and jmfc, hoskote, was not binding on the plaintiff. 2. appellant was the 1st defendant before the trial court. the 1st respondent smt.reshma wife of jakir khan was the plaintiff in o.s.no.131/1999, out of which the present second appeal arises. she had filed the suit seeking to set aside and cancel the judgment and decree dated 19.01.1993 passed in o.s.no.397/1992. the judgment and decree passed in o.s.no.397/1992 was based on a compromise reached between the appellant who was the plaintiff in the said suit and respondents 1 and 2 herein who were the defendants 1 and 2 in the said suit. the said suit was one filed for specific performance of the agreement of sale dated 05.04.1990 executed by late sabjan father of respondent no.1 and the husband of respondent no.2. 3. plaintiff in the said suit having purchased the property under an agreement from the father of the 1st defendant sought for specific performance of the agreement by arraying respondent no.1 herein as defendant no.1 and respondent no.2 herein – mother of respondent no.1 as defendant no.2 and the grandparents of the minor – respondent no.1 herein as defendants 3 and 4. the said suit was contested by the 2nd defendant. the grandparents of respondent no.1 conceded for passing a decree by filing a separate written statement. the 2nd respondent – 2nd defendant was appointed as guardian of the minor. in that capacity, she represented the minor and a compromise was entered into. based on the compromise, a compromise decree came to be passed in o.s.no.397/1992 on 19.01.1993 decreeing the suit filed for specific performance of the agreement of sale dated 05.04.1990. 4. challenging the said decree, the present suit was instituted in o.s.no.131/1999 by the 1st respondent. she contended that the compromise decree was the result of collusion between the parties thereto arrived with a view to knock off the share of respondent no.1. the 1st respondent further contended that her mother 2nd defendant – respondent no.2 herein had no right or authority to represent her as guardian in as much as mohammedan law did not recognize the mother of a minor as her legal guardian in respect of immovable property. it was also contended that the registered sale deed sought to be executed in favour of the purchaser through the court in the execution proceedings was also illegal. 5. the suit was contested by the present appellant. evidence was led by both the parties. the trial court held that the plaintiff failed to prove that the judgment and decree passed in o.s.no.397/1992 on 19.01.1993 was not binding on her. she was found not entitled for the relief of declaration sought in that regard. 6. as the 2nd defendant mother of the plaintiff had contended that her signature was obtained to the compromise petition by the plaintiff in o.s.no.397/1992 colluding with his counsel, an issue in that regard was raised placing the burden on the mother – 2nd defendant. the same was answered in the negative. similarly, in respect of another issue raised with regard to the question whether the mother had a right to act as a guardian for her minor son as per the provisions of the mohammedan law, the trial court held that the 2nd defendant failed to prove that under mohammedan law, the mother had no right to act as guardian for her minor children, if appointed by the court. accordingly, the suit filed by the plaintiff – respondent no.1 herein came to be dismissed. 7. aggrieved by the same, the present respondent no.1 preferred regular appeal no.51/2007. the appellate court has reversed the judgment and decree passed by the trial court and has decreed the suit declaring that the judgment and decree in o.s.no.397/1992 was not binding on the plaintiff. 8. the twin reasons assigned by the learned appellate judge for reversing the judgment and decree are that the mother of the minor had no right to act as a guardian of her minor daughter as per the provisions of the mohammedan law and that the trial court in o.s.no.397/1992 had not granted leave to the guardian of the minor to enter into a compromise and no certificate of the pleader to the effect that the compromise proposed was for the benefit of the minor was forthcoming and hence the compromise entered into was not in accordance with law. aggrieved by the judgment of the lower appellate court, the present appeal is filed. 9. respondents though served have remained unrepresented. learned counsel for the appellant submits, taking me through the original records secured from the courts below that the lower appellate court was in error in holding that leave was not granted to the guardian/mother to enter into the compromise and that there was no certificate of the pleader certifying that the compromise proposed was in the interest and for the benefit of the minor. in this regard, ex.p1 is perused. it is clear from ex.p1 – order sheet maintained in o.s.no.440/1990, which is renumbered as o.s.no.397/1992 that an application under order xxxii rule 7(1a) (i) of cpc has been filed with an affidavit seeking permission to compromise the suit on behalf of the minor. it is also seen from the order sheet that certificate as required in law to be produced in respect of the compromise to be entered into on behalf of the minor is also filed. the said application which was numbered as i.a.7 has been allowed. defendant no.1 herein (mother of the minor) was appointed as guardian of the 2nd defendant minor girl and it was held that she was entitled to compromise the suit on behalf of the minor. it is thereafter that the compromise has been accepted after explaining the contents of the same in hindi language known to the parties recording the consent expressed by both the parties. therefore, the lower appellate court was completely wrong in holding that the minor guardian appointed by the court in o.s.no.397/1992 was not permitted to enter into any compromise on behalf of the minor and that there was no certificate issued by the pleader certifying that the proposed compromise entered into was in the interest of the minor. it is also borne out from the records that on the application filed seeking permission to enter into compromise the court had passed an order permitting the mother of the minor to enter into the compromise in question. 10. it is also necessary to notice here that the 1st defendant – mother of the minor had filed written statement for herself and on behalf of the 2nd defendant contesting the suit contending interalia that no such agreement had been entered into by late sabjan and that the original documents pertaining to the suit property had been illegally taken away by the present appellant (plaintiff therein) colluding with the parents of deceased sabjan who were arrayed as defendants 3 and 4 in the said suit. this is clear from ex.p2 – written statement of defendants 1 and 2 therein marked in the present proceedings. it is also necessary to notice here that the parents of deceased – sabjan – defendants 3 and 4 therein had filed separate written statement as per ex.p2 conceding the claim of the plaintiff – appellant herein and expressing consent for decreeing the suit. 11. insofar as the other point regarding the authority of the mother of the minor to represent the minor as guardian in terms of the provisions of the mohameddan law, it is no doubt true that the mother of the minor is not recognized as a legal guardian. as per the provisions of the mohammedan law, the legal guardians are the father, the executor appointed by the father’s will, the father’s father and the executor appointed by the will of the father’s father. no other relations are entitled to the guardianship of the property of a minor as of right. it is also true that the mother is not the lawful guardian, although the father or the paternal grandfather may appoint the mother or brother or any other person as executor or executrix. however, it is well established that in default of legal guardian appointing the guardian, the power for protection and preservation of the minor’s property is vested in the court which can be exercised on an appropriate application filed in this regard. 12. in the instant case, admittedly, the father of the minor is no more. the grandfather of the minor was a party to the suit arrayed as defendant no.3 and has indeed conceded for passing the decree by filing written statement as per ex.p2. the mother had contested the claim in the suit and opposed the decree sought for specific performance stating that there was no such agreement entered into by her deceased husband and that the plaintiff – appellant herein in collusion with the parents of her deceased husband had taken away the original documents pertaining to the suit property and had thus laid a false claim. it is thus apparent from the indisputable facts on record that there was no other legal guardian who could have been appointed to protect the interest of the minor and her property in the suit o.s.no.397/1992. if the order appointing the mother as the guardian of the minor girl is viewed in this background, it cannot be said that the learned judge had committed any illegality in appointing the mother as guardian of the minor girl. 13. in the case of imam bandi vs. mutsaddi – ilr 1945 cal 878, it has been held referring to the case of alim ullah vs. abadi – ilr 29 allahabad 10 that in the absence of a legal guardian, duty of appointing the guardian for protection and preservation of minor’s property is on the judge and the court may therefore appoint any person taking note of the welfare of the minor, as guardian and court may also appoint the mother in preference to a paternal uncle. it is also necessary to notice here that a legal guardian and a court appointed guardian are de jure guardians. 14. in the instant case, as the mother was appointed as a guardian by the court, particularly, in the absence of the father of the minor child, who had passed away and the grandfather having not come forward for being appointed as a guardian and having filed a written statement conceding the claim of the plaintiff which was adverse to the minor’s interest, there was all justification for the learned trial judge therein to appoint the mother as guardian to protect the interest of the minor. 15. the guardian of the minor having understood the contents of the compromise memo and acting in the interest of the minor child has agreed for the compromise, whereupon the compromise decree came to be passed. the judgments referred to and relied upon by the learned appellate judge in the cases of md. zafir vs. amiruddin – air 1963 pat. 108 and mir sarwarjan vs. fakhuruddin md. chowdry (1912) ilr 39 cal 232 (pc) have no application to the facts of the present case as in the instant case, it is the court which has appointed the mother as a guardian and it is the court which has permitted her to enter into the compromise on behalf of the minor in the interest of the minor. 16. in the result and for the foregoing, the substantial question of law regarding the legality and correctness of the judgment and decree of the appellate court is answered in favour of the appellant holding that the lower appellate court has misconstrued the proceedings in o.s.no.397/1992, particularly regarding appointment of the mother as minor guardian permitting her to enter into the compromise and also with regard to the certificate issued by the pleader certifying that the compromise was in the interest of minor. hence, this appeal is allowed. the impugned judgment and decree is set aside. the judgment and decree passed by the trial court is o.s. no. 397/1992 is confirmed.

Judgment:
(This R.S.A. is filed under Section 100 of CPC against the judgment and decree dated 8.3.2010 passed in RA No.51/2007 on the file of the Presiding Officer, FTC-1, Bangalore Rural District, and etc.)

1. In this regular second appeal, the appellant is calling in question the judgment and decree dated 08.03.2010 passed by the District and Sessions Judge, Fast Track Court, Bangalore Rural District, Bangalore, in R.A.No.51/2007 thereby allowing the appeal filed by the appellant – respondent No.1 herein and declaring that the judgment and decree dated 19.01.1993 passed in O.S.No.397/1992 by the learned Civil Judge (Jr.Dn.) and JMFC, Hoskote, was not binding on the plaintiff.

2. Appellant was the 1st defendant before the Trial Court. The 1st respondent Smt.Reshma wife of Jakir Khan was the plaintiff in O.S.No.131/1999, out of which the present second appeal arises. She had filed the suit seeking to set aside and cancel the judgment and decree dated 19.01.1993 passed in O.S.No.397/1992. The judgment and decree passed in O.S.No.397/1992 was based on a compromise reached between the appellant who was the plaintiff in the said suit and respondents 1 and 2 herein who were the defendants 1 and 2 in the said suit. The said suit was one filed for specific performance of the agreement of sale dated 05.04.1990 executed by late Sabjan father of respondent No.1 and the husband of respondent No.2.

3. Plaintiff in the said suit having purchased the property under an agreement from the father of the 1st defendant sought for specific performance of the agreement by arraying respondent No.1 herein as defendant No.1 and respondent No.2 herein – mother of respondent No.1 as defendant No.2 and the grandparents of the minor – respondent No.1 herein as defendants 3 and 4. The said suit was contested by the 2nd defendant. The grandparents of respondent No.1 conceded for passing a decree by filing a separate written statement. The 2nd respondent – 2nd defendant was appointed as guardian of the minor. In that capacity, she represented the minor and a compromise was entered into. Based on the compromise, a compromise decree came to be passed in O.S.No.397/1992 on 19.01.1993 decreeing the suit filed for specific performance of the agreement of sale dated 05.04.1990.

4. Challenging the said decree, the present suit was instituted in O.S.No.131/1999 by the 1st respondent. She contended that the compromise decree was the result of collusion between the parties thereto arrived with a view to knock off the share of respondent No.1. The 1st respondent further contended that her mother 2nd defendant – respondent No.2 herein had no right or authority to represent her as guardian in as much as Mohammedan Law did not recognize the mother of a minor as her legal guardian in respect of immovable property. It was also contended that the registered Sale Deed sought to be executed in favour of the purchaser through the Court in the execution proceedings was also illegal.

5. The suit was contested by the present appellant. Evidence was led by both the parties. The Trial Court held that the plaintiff failed to prove that the judgment and decree passed in O.S.No.397/1992 on 19.01.1993 was not binding on her. She was found not entitled for the relief of declaration sought in that regard.

6. As the 2nd defendant mother of the plaintiff had contended that her signature was obtained to the compromise petition by the plaintiff in O.S.No.397/1992 colluding with his counsel, an issue in that regard was raised placing the burden on the mother – 2nd defendant. The same was answered in the negative. Similarly, in respect of another issue raised with regard to the question whether the mother had a right to act as a guardian for her minor son as per the provisions of the Mohammedan Law, the Trial Court held that the 2nd defendant failed to prove that under Mohammedan Law, the mother had no right to act as guardian for her minor children, if appointed by the Court. Accordingly, the suit filed by the plaintiff – respondent No.1 herein came to be dismissed.

7. Aggrieved by the same, the present respondent No.1 preferred Regular Appeal No.51/2007. The Appellate Court has reversed the judgment and decree passed by the Trial Court and has decreed the suit declaring that the judgment and decree in O.S.No.397/1992 was not binding on the plaintiff.

8. The twin reasons assigned by the learned Appellate Judge for reversing the judgment and decree are that the mother of the minor had no right to act as a guardian of her minor daughter as per the provisions of the Mohammedan Law and that the Trial Court in O.S.No.397/1992 had not granted leave to the guardian of the minor to enter into a compromise and no certificate of the Pleader to the effect that the compromise proposed was for the benefit of the minor was forthcoming and hence the compromise entered into was not in accordance with law. Aggrieved by the judgment of the lower Appellate Court, the present appeal is filed.

9. Respondents though served have remained unrepresented. Learned counsel for the appellant submits, taking me through the original records secured from the Courts below that the lower Appellate Court was in error in holding that leave was not granted to the guardian/mother to enter into the compromise and that there was no certificate of the Pleader certifying that the compromise proposed was in the interest and for the benefit of the minor. In this regard, Ex.P1 is perused. It is clear from Ex.P1 – order sheet maintained in O.S.No.440/1990, which is renumbered as O.S.No.397/1992 that an application under Order XXXII Rule 7(1A) (i) of CPC has been filed with an affidavit seeking permission to compromise the suit on behalf of the minor. It is also seen from the order sheet that certificate as required in law to be produced in respect of the compromise to be entered into on behalf of the minor is also filed. The said application which was numbered as I.A.7 has been allowed. Defendant No.1 herein (mother of the minor) was appointed as guardian of the 2^nd defendant minor girl and it was held that she was entitled to compromise the suit on behalf of the minor. It is thereafter that the compromise has been accepted after explaining the contents of the same in Hindi language known to the parties recording the consent expressed by both the parties. Therefore, the lower Appellate Court was completely wrong in holding that the minor guardian appointed by the Court in O.S.No.397/1992 was not permitted to enter into any compromise on behalf of the minor and that there was no certificate issued by the Pleader certifying that the proposed compromise entered into was in the interest of the minor. It is also borne out from the records that on the application filed seeking permission to enter into compromise the Court had passed an order permitting the mother of the minor to enter into the compromise in question.

10. It is also necessary to notice here that the 1st defendant – mother of the minor had filed written statement for herself and on behalf of the 2nd defendant contesting the suit contending interalia that no such agreement had been entered into by late Sabjan and that the original documents pertaining to the suit property had been illegally taken away by the present appellant (plaintiff therein) colluding with the parents of deceased Sabjan who were arrayed as defendants 3 and 4 in the said suit. This is clear from Ex.P2 – written statement of defendants 1 and 2 therein marked in the present proceedings. It is also necessary to notice here that the parents of deceased – Sabjan – defendants 3 and 4 therein had filed separate written statement as per Ex.P2 conceding the claim of the plaintiff – appellant herein and expressing consent for decreeing the suit.

11. Insofar as the other point regarding the authority of the mother of the minor to represent the minor as guardian in terms of the provisions of the Mohameddan Law, it is no doubt true that the mother of the minor is not recognized as a legal guardian. As per the provisions of the Mohammedan Law, the legal guardians are the father, the executor appointed by the father’s will, the father’s father and the executor appointed by the will of the father’s father. No other relations are entitled to the guardianship of the property of a minor as of right. It is also true that the mother is not the lawful guardian, although the father or the paternal grandfather may appoint the mother or brother or any other person as executor or executrix. However, it is well established that in default of legal guardian appointing the guardian, the power for protection and preservation of the minor’s property is vested in the Court which can be exercised on an appropriate application filed in this regard.

12. In the instant case, admittedly, the father of the minor is no more. The grandfather of the minor was a party to the suit arrayed as defendant No.3 and has indeed conceded for passing the decree by filing written statement as per Ex.P2. The mother had contested the claim in the suit and opposed the decree sought for specific performance stating that there was no such agreement entered into by her deceased husband and that the plaintiff – appellant herein in collusion with the parents of her deceased husband had taken away the original documents pertaining to the suit property and had thus laid a false claim. It is thus apparent from the indisputable facts on record that there was no other legal guardian who could have been appointed to protect the interest of the minor and her property in the suit O.S.No.397/1992. If the order appointing the mother as the guardian of the minor girl is viewed in this background, it cannot be said that the learned Judge had committed any illegality in appointing the mother as guardian of the minor girl.

13. In the case of IMAM BANDI VS. MUTSADDI – ILR 1945 CAL 878, it has been held referring to the case of ALIM ULLAH VS. ABADI – ILR 29 ALLAHABAD 10 that in the absence of a legal guardian, duty of appointing the guardian for protection and preservation of minor’s property is on the judge and the Court may therefore appoint any person taking note of the welfare of the minor, as guardian and Court may also appoint the mother in preference to a paternal uncle. It is also necessary to notice here that a legal guardian and a Court appointed guardian are de jure guardians.

14. In the instant case, as the mother was appointed as a guardian by the Court, particularly, in the absence of the father of the minor child, who had passed away and the grandfather having not come forward for being appointed as a guardian and having filed a written statement conceding the claim of the plaintiff which was adverse to the minor’s interest, there was all justification for the learned Trial Judge therein to appoint the mother as guardian to protect the interest of the minor.

15. The guardian of the minor having understood the contents of the compromise memo and acting in the interest of the minor child has agreed for the compromise, whereupon the compromise decree came to be passed. The judgments referred to and relied upon by the learned Appellate Judge in the cases of MD. ZAFIR VS. AMIRUDDIN – AIR 1963 PAT. 108 and MIR SARWARJAN VS. FAKHURUDDIN MD. CHOWDRY (1912) ILR 39 CAL 232 (PC) have no application to the facts of the present case as in the instant case, it is the Court which has appointed the mother as a guardian and it is the Court which has permitted her to enter into the compromise on behalf of the minor in the interest of the minor.

16. In the result and for the foregoing, the substantial question of law regarding the legality and correctness of the judgment and decree of the Appellate Court is answered in favour of the appellant holding that the lower Appellate Court has misconstrued the proceedings in O.S.No.397/1992, particularly regarding appointment of the mother as minor guardian permitting her to enter into the compromise and also with regard to the certificate issued by the Pleader certifying that the compromise was in the interest of minor.

Hence, this appeal is allowed. The impugned judgment and decree is set aside. The judgment and decree passed by the Trial Court is O.S. No. 397/1992 is confirmed.