Karnataka High Court
Ms. Khadeeja Abdul Rehman D/O Mr.Abdul vs Mr. Safal Aboobacker on 8 February, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
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RFA No.2094 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO.2094 OF 2022 (POS)
BETWEEN:
MS. KHADEEJA ABDUL REHMAN,D/O MR. ABDUL
REHMAN,
AGED ABOUT 12 YEARS,
MINOR, REPRESENTED BY HER GUARDIAN
AND BROTHER MR. ABDULLAH ABDUL REHMAN
R/AT NO. 'KHADEEJA', 17TH WARD,
S.L. MATHIAS ROAD, FALNIR,
MANGALORE - 575001.
...APPELLANT
(BY SRI. RAGHAVENDRA SHENOY M, ADV. FOR
SRI. CYRIL PRASAD PAIS., ADVOCATE)
AND:
Digitally signed by
SANDHYA S MR. SAFAL ABOOBACKER,
Location: High S/O MR. KUNIL ABOOBACKER
Court of Karnataka
AGED ABOUT 34 YEARS
R/AT NO.401, 'THUMBAY MANAR',
HIGHLAND ROAD, KANKANADY,
MANGALORE - 575002.
...RESPONDENT
(BY SRI. ABHINAY Y T., ADVOCATE)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 01.10.2022 PASSED IN OS No.18/2022 ON THE FILE OF
THE PRL. SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K,
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NC: 2024:KHC:5398-DB
RFA No.2094 of 2022
REJECTING THE PLAINT BY ALLOWING THE IA NO.5 FILED
UNDER ORDER 7 RULE 11(d) R/W SECTION 151 OF CPC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, KRISHNA S. DIXIT J., DELIVERED THE FOLLOWING:
JUDGMENT
This is plaintiff's appeal against the order dated
01.10.2022 passed by the Principal Senior Civil Judge and
CJM, Mangaluru, Dakshina Kannada, whereby sole
defendant's application in IA No.5 filed under Order VII
Rule 11(d) r/w Sec. 151 of Code of Civil Procedure having
been favoured, the appellant's suit in O.S.No.18/2022
seeking a decree for possession of property and mean
profits, has been dismissed.
2. After service of notice the respondent having
entered appearance through his counsel opposes the
appeal contending that
3. Having heard the learned counsel for the parties
and having perused the appeal papers, we are inclined to
grant indulgence in the matter inasmuch as whether the
agreement in question is void because of minority of a
party thereto, happens to be a question of fact which can
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be established only after trial. It cannot be readily
assumed that a particular party to a contract is a minor or
suffers from such other disability; these are all matters of
evidence and therefore issue should be appropriately
framed and tried.
4. The Court below has proceeded on an
erroneous assumption of law that lease is not a 'transfer of
property'. The definition of 'transfer' given under Section
5 of the Transfer of Property Act, 1882, necessarily
includes all five traditional modes of transfer of property
and one of the modes is 'lease'. Thus the impugned
judgment & order which is structured on a wrong legal
premise is liable to be voided.
5. The above apart, the learned Judge of the
Court below has proceeded on an erroneous
assumption of law that a minor's agreement being void
ab initio, vide MOHORI BIBEE v. DHAROMODAS
GHOSH ILR (1903)30 CAL 539 (PC) admits no
vinculum juris in any circumstance. There are several
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concepts such as restitution, quantum meruit, etc. that
are employed even when an agreement is found to be
void. Again certain factual foundation needs to be laid
and that can be done only in trial. A minor's
agreement is void and therefore everything has to fall
down as a pack of cards, is too broad a proposition of
law to countenance. The juristic basis of the obligation
in such cases is not founded upon any contract or tort
but upon a third category of law, namely quasi-
contract or restitution. Any civilized system of law is
bound to provide remedies for such cases. In Nelson
v. Larholt, (1948) 1 KB 339 Lord Denning has
observed as follows:
"It is no longer appropriate to draw a
distinction between law and equity.
Principles have now to be stated in the light
of their combined effect. Nor is it necessary
to canvass the niceties of the old forms of
action. Remedies now depend on the
substance of the right, not on whether they
can be fitted into a particular framework.
The right here is not peculiar to equity or
contract or tort, but falls naturally within the
important category of cases where the court
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orders restitution if the justice of the case so
requires"
In the above circumstances, this appeal succeeds
with costs. The impugned judgment & order having been
set at naught, learned Judge of the court below is
requested to process the suit now that is restored to his
Board, in accordance with law.
Sd/-
JUDGE
Sd/-
JUDGE
LNN
