Mohammed Law - Sale of Muslim minor property by mother - is valid ? - unless mother is appointed by the father as the guardian of his minor children's estate 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 facto void. -2015 - S.C.(1996) MSK LAW REPORTS 21



Admittedly, the appellant is a purchaser of the property from the 1st respondent 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 ?
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 property 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 the income of the property; 
[6] where the property is falling into decay;
 [7] when the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution.

In 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 minor children's estate 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 facto void. 
In case the minor has no means of support except the property, 
she must apply to the court for sanction in order to deal with the property.
Father is the natural guardian and in his absence other legal guardians would be entitled to act. 
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 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.

 whether the appellant has perfected his title.?
unless there is a specific plea and proof that the appellant had 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 prescripetion.  The High  Court has taken the  fact that there is  neither a plea nor proof in this behalf. We cannot find  any   infirmity in   this   finding.   Under   these
ciurcumstances, 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 respondent-plaintiff and not of the share of the mother.

Popular posts from this blog

Writ - praying to declare that explanation to Section 6 of the amendment Act of 39 of 2005, Explanation: for the purpose of this Section partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court as unconstitutional and the same is liable to be struck down and etc; -2015 KAR(2015) msklawreports

"(i) Whether  Section 6  of the Hindu Succession Act, 1956, as amended by the Amendment Act , 2005 is prospective or retrospective in operation? (ii) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies to daughters born prior to 17.6.1956? (iii) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies to daughters born after 17.6.1956 and prior to 9.9.2005? (iv) Whether  Section 6  of the Hindu Succession Act, 1956 as amended by the Amendment Act , 2005 applies only to daughters born after 9.9.2005? (v) Whether the decision of the Division Bench in the case of Vaishali Ganorkar is per in curium of Gandori Koteshwaramma and others?"   In addressing an argument that the Explanation to  Section 6  clearly provides that partition means any partition made by execution of a deed duly registered under the  Registration Act , 1908...
Read more

Or.39, rule 7 of C.P.C - Petition for preservation of properties belongs to the petitioner - as the Govt. is going to demolish the building in road widening scheme - Or.39, rule 1 made absolute against the petitioner infavour of the respondent - Trial court allowed the Petition wrongly - their lordships held that In a suit for injunction, though the question of possession as on the date of filing of the suit is most relevant, there may be other ancillary and incidental questions as to the conduct of the parties before the Court. The concept of possession in law should take in its spectrum all rights, liabilities, immunities and claims vis-`-vis the property which is said to be in possession. When the Court recorded a prima facie finding that Gayatri bai is in possession, she was also in law entitled to take advantage of that presumption. Unless the defendant properly pleads and proves at the earliest stage regarding any such movables or immovables attached to the immovable property, no defendant can be heard of saying that his belongings were lying in the disputed property. - 2015 A.P.(2001) MSKLAWREPORTS

<CIVIL PROCEDURE CODE - - Or.39 Rr.1 and 2 - - Or.39 R.7 - - Suit for possession - - Interim injuction granted was made absolute - - Later on defendant filed a petition to remove and keep in safe custody certain movables laying in the disputed premises alleging that those belong to him and may get spoiled in case of demolition of the building for road widening - - Lower Court ordered handing over such articles after preparing necessary list to the respondent/defendant.         Scope and ambit  of Or.39 R.7 and when the power thereunder to be exercised - - Laid down. >HELD:         Order 39 Rule 7 CPC empowers the Court to make an order for detention, preservation and inspection of any property which is the subject matter of the suit or as to which any question may arise in the suit.  The submission that the power under Rule 7 can be exercised only in respect of the subject matter is therefore not well founded. The...
Read more

Cancellation of Bail with out completing the investigation by police about threat on defacto complainant , is a premature one - - 2015 TELANGANA & AP.MSKLAWREPORTS

the allegation of defacto complainant is that some unknown persons on behalf of the accused,  even though they were in judicial custody, started threatening him with dire consequences if he does not come forward to compromise with them  in the case and in view of such threat he lodged report and consequently Cr.No.705 of 2014 was registered under Sections 506 and 507 IPC. Apart from it, the complainant also narrated that some of the accused were involved in other cases and rowdy sheet was opened against A1. The lower Court cancelled the bail taking the above allegations into consideration. It must be noted that the threat allegations are under investigation and the persons who allegedly threatened the defacto complainant and the connection of accused with them if any has to be found out only after through investigation by the concerned police.  However, before that exercise being completed, the lower Court came to a premature conclusion about the correctness of the...
Read more