Madras High Court
Packiaraj vs Shajakhan on 17 October, 2025
S.A.No.329 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 08.10.2025
Pronounced on 17.10.2025
Coram:
The Honourable Mrs.Justice K.GOVINDARAJAN THILAKAVADI
Second Appeal No.329 of 2022
and C.M.P.No.6849 of 2022
1.Packiaraj
2.Sathiyaraj (Major)
[*2nd Appellant declared as major,
and mother Poongavam discharged
from his guardianship vide Court
order dated 01.04.2022 made in
C.M.P.No.5650 of 2022 in
S.A.Sr.No.47945 of 2021 (SSSRJ)
.. Appellants
versus
1.Shajakhan
2.Kasim
.. Respondents
1
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S.A.No.329 of 2022
Prayer: Second Appeal is filed under Section 100 CPC, praying to set aside
the judgment and decree dated 26.02.2021 made in A.S.No.99 of 2006 on
the file of learned Additional Sub Judge, Kallakurichi reversing the
judgment and decree dated 07.10.2005 made in O.S.No.908 of 1998 on the
file of Principal District Munsif, Kallakurichi.
For Appellant : Mr.S.N.Subramani
For Respondent : Mr.C.Samivel for R1
No appearance for R2
JUDGMENT
The above second appeal arise out of the judgment and decree dated
26.02.2021 made in A.S.No.99 of 2006 on the file of learned Additional
Sub Judge, Kallakurichi, reversing the judgment and decree dated
07.10.2005 made in O.S.No.908 of 1998 on the file of Principal District
Munsif, Kallakurichi.
2.The unsuccessful defendants have preferred the present second
appeal. The respondents as plaintiffs filed the above suit for declaration of
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title and for mandatory injunction to demolish the building in the suit
property constructed by the defendants and for recovery of possession.
3.According to the plaintiff, the portion shown as ' E F H C ' in the
plaint plan originally belong to one Abdulla Sahib. The said Abdulla Sahib
sold a portion of the property excluding the suit property to the defendants
on 23.10.1996, shown as second item of the suit schedule. The boundary
recitals in the above sale deed would clearly establish that the defendants
have purchased the property excluding the suit property shown as ' A B C D'
in the plaint plan. Thereafter, the said Abdulla Sahib on 28.08.1997 sold the
said property to the plaintiffs and the father of the plaintiffs was in
possession and enjoyment of the suit property, since the plaintiffs were
minors at that point of time. While so, during the 1 st week of February 1999
the defendants trespassed into the suit property and constructed a building,
pending suit. The defendants have no right or possession over the suit
property. Thereafter, on 04.12.1997 the defendants have purchased the
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entire suit property from one Sahul Hamid who was minor at that point of
time. The plaintiffs also filed a suit in O.S.No.999/97 and the same was
withdrawn by the plaintiffs since they were not aware of the age of Minor
Sahul Hamid. Hence, the plaintiffs were constrained to file the above suit in
O.S.No.908/98.
4. On the other hand, the defendants contention is that the suit
property and other properties in total measuring 0.4 cents originally belongs
to one minor Sahul Hamid under a sale deed dated 21.05.1984. While so,
the mother of Sahul Hamid namely Balkies sold the above properties to one
Abdulla Sahib, vendor of the plaintiffs and the defendants on 05.03.1987.
The above sale is not valid. Hence, the said Abdulla Sahib did not acquire
any right over the suit property and he was never in possession and
enjoyment of the suit property. While so, under the misrepresentation made
by the said Abdulla Sahib, the mother of the defendants purchased 3 ¾ cents
out of the total 4 cents. Thereafter, the said Sahul Hamid after attaining
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majority, issued a legal notice dated 18.11.1997 to the said Abdul Sahib and
to the father of the plaintiffs namely Mohamed Ali. While so, the father of
the plaintiffs Mohamed Ali purposely got a sale deed on 12.12.1997
knowing well that the said Abdulla Sahib has no right over the properties.
The said sale deed is not valid in the eye of law. On 04.12.1997 the
defendants got a sale deed in respect of the entire 4 cents from the actual
owner Sahul Hamid and from then onwards the entire suit property is in
possession and enjoyment of the defendants. The plaintiffs are not in
possession and enjoyment of the properties purchased by them. The
plaintiffs have produced the School certificate of Sahul Hamid to state that
he was a minor at the time of executing the sale deed in favour of the
defendants. The said School certificate do not belong to Sahul Hamid. The
said Sahul Hamid has sold his properties to third parties after attaining
majority. Further, the plaintiffs have withdrawn the suit in O.S.No.999/97
since the interim application filed by the plaintiffs was dismissed and not
for the reason has stated in the plaint. The defendants have constructed the
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building immediately after purchasing the suit property. Hence, prayed for
dismissal of the suit.
5.The suit was dismissed by the trial Court against which the
plaintiffs preferred an appeal in A.S.No.99 of 2006. The First appellate
Court reversed the judgment passed by the trial Court and decreed the suit
filed by the plaintiffs. Thus, the defendants have preferred the present
second appeal.
6.The following substantial question of law was framed by this Court:
Whether Muslim minor, whose property is sold by a
defacto but not de-jure guardian by executing a sale deed on
his behalf during his minority, need to get the sale seed
cancelled by filing a civil suit on attaining majority or is the
sale deed void, non-est in law, and therefore, the minor need
not even repudiate it.''
7.The learned counsel for the appellant submits that, the suit property
originally purchased in the name of minor Sahul Hamid. While so, the
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mother of Sahul Hamid sold the property to Abdullah Sahib, when Sahul
Hamid was a minor and therefore, the said Abdullah Sahib had no authority
to sell the suit property in favour of the plaintiffs. The defendants have
purchased the entire suit property from the said Sahul Hamid after attaining
majority and they are in possession and enjoyment of the suit property.
8.Heard the respective counsel for the parties and perused the records.
9.Now, it has to be seen whether the sale deed executed by a de-facto
guardian namely mother of the said Sahul Hamid in favour of Abdullah
Sahib is valid in the eye of law.
10.It is not in dispute that the suit property originally owned by minor
Sahul Hamid by virtue of sale deed dated 21.05.1984. It is also not in
dispute that the same was sold by the mother of minor Sahul Hamid to one
Abdulla Sahib on 05.03.1987. Thereafter, on 23.10.1996 the defendant has
purchased 3 ¾ portion of the suit property from the said Abdulla Sahib ,
excluding the portion that was purchased by the father of the plaintiffs on
20.08.1997 for the benefit of the minors. Thereafter, the said Sahul Hamid
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issued a legal notice on 18.11.1997 to the said Abdulla Sahib and to the
father of the plaintiffs namely Mohammed Ali under Ex.B7 questioning the
sale executed by the said Abdulla Sahib in favour of the Plaintiffs. Inspite of
receipt of the said notice, neither Abdulla Sahib nor Mohamed Ali father of
the plaintiffs replied to the said notice. Instead the said Abdulla Sahib
executed a sale deed on 12.12.1997 in favour of the defendants under
Ex.A2. On 04.12.1997, the said Sahul Hamid executed a sale deed in favour
of the defendants under Ex.B.3 in respect of the entire 0.4 cents.
11.Now, the first and foremost question to be decided is, whether the
sale deed executed by the mother of Sahul Hamid, namely Balkies Bee as
defacto guardian in favour of Abdulla Sahib under Ex.B.1 dated 05.03.1997
is valid under the eye of law.
12.Under Muslim Personal Law, interests of minor is well protected.
Muslim Law distinguishes between the status of a defacto guardian and a
legal / de jure guardian. Any decision with regard to the devolution of the
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property of a Muslim suffice would to refer to the paragraph 5 of the
Meethiyan Sidhiqu Vs. Muhammed Kunju Pareeth Kutty and others
reported in (1996) 7 Supreme Court cases 436, where the Hon'ble Supreme
Court held:-
5. Mulla's "principle of the Mohammadan Law"
[Nineteenth Edition] by Justice M. Hidayatullah, former
Chief Justice of this Court and Arshad Hidayatullah, deals
with legal property guardians of a muslim minor in Section
359. In the order, only father, executor appointed by the
father's will, 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 mother,
brother or uncle but 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
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they will have all the powers of a guardian appointed by the
court, as stated in Sections 363 to 367."
13. In the light of the law settled both the First Appellate Court and
trial Court were wrong in holding that the sale deed executed by the mother
of minor Sahul Hamid in favour of Abdullah Sahib is valid. It has long
been settled by a Full Bench of this Court in Mushamat Anto (supra), that
any transfer of property by a de facto guardian of a Muslim minor is void
and non-est, it cannot be ratified by the minor upon his attainment of
majority. Even when the transaction has been ratified by the minor after he
has attained majority, it can subsequently be noted in Mushamat Anto
(Supra) as follows:-
"Two questions have been referred to this Full Bench by the Bench
before which the case came up for disposal. They are as follows:
(1) Can a transaction amounting to an alienation of
an immovable property belonging to a Muhammadan minor
by the de facto guardian of the minor be ratified by the latter
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upon his attainment of majority?
........
Dealing with the third proposition, their Lordships
examined the text of the Hedayah and the Fatwa-i-Alamgiri
and came to the conclusion that the Hanafi doctrine relating
to a sale by an unauthorised person remaining dependent on
the sanction of the owners refers to a case where such owner
is sui juris possessed of the capacity to give the necessary
sanction to make the transaction operative, and that they did
not find any reference in these doctrines relating to fazuli
sales, so far as they appear in the Hedayah or the Fatwa-i-
Alamgiri, to dealings with the property of minors by persons
who happen to have charge of the infants and their property,
in other words, the de facto guardians. In their Lordships'
opinion the doctrine about fazuli sales appears clearly to be
based on the analogy of an agent who acts in a particular
matter without authority, but whose act is subsequently
adopted or ratified by the principal which has the effect of
validating it from its inception. The idea of agency in
relation to an infant is as foreign, their Lordships conceived,
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to Mahomedan law as to every other system.
Our answer to the first question referred to us is in the
negative, as the transaction being void there is no question
of ratification. The answer to the second question is that
there can be no valid ratification and therefore there can be
no estoppel on account of any such ratification."
14.In the light of the law settled by the Full Bench of the Hon'ble
Supreme Court, a Muslim minor even after attaining majority cannot ratify
such a void sale deed. Therefore, the sale deed executed by Abdul Sahib in
favour of the plaintiff on 20.08.1997 and the sale deed dated 23.10.1996 is
void, non-est in law, since the sale deeds were executed by the mother, who
was only a de-facto guardian on behalf of minor Sahul Hamid. Hence, the
minor after attaining majority, neither get the sale deeds cancelled by filing
a civil suit, nor even repudiate the same as observed by the Hon'ble Apex
Court in the judgments referred supra.
15.Both the trial Court and the First Appellate Court have given
specific finding of fact that the defendants are in possession of the property
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in dispute. Though the contention of the plaintiffs is that, the defendants
have trespassed into the suit property during 1st week of February 1999 after
filing of the suit, the same is not established. The plaintiffs have not
produced any documents to show that they are in possession and enjoyment
of the property purchased by them. Even the possession of the plaintiffs'
father was not established. On the other hand, the defendants have produced
Ex.B.8 tax receipt for the period from 1995 to 1999, which amply proves
that the house was constructed in the suit property even prior to Ex.B.3 sale
deed.
16.On the side of the plaintiffs, it was contended that even at the time
of execution of Ex.B3 sale deed in favour of the plaintiffs, the said Sahul
Hamid was a minor and to establish the same they have produced the School
certificate marked as Ex.A.3 and therefore, the Ex.B3 sale deed is a void
document and the defendants cannot claim any right over the suit property.
On the side of the defendants, the said Sahul Hamid was examined as D.W.3
and he has deposed that Ex.A3 School Certificate do not belong to him and
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that he had attained majority at the time of executing Ex.B3 sale deed in
favour of the defendants. But, he has not produced any document to show
that he was major at the time of executing Ex.B.3 sale deed. Even assuming
that the said Sahul Hamid was a minor at the time of execution of Ex.B.3
sale deed, such a sale is generally voidable at the minor's option, not
automatically void. He may either file a law suit to declare the sale invalid
or ratify the same within the prescribed time limit. Therefore, the plaintiffs
cannot question the validity of Ex.B3 sale deed in favour of the defendants
executed by Sahul Hamid. It is for the plaintiffs to establish their case as to
whether they have any right over the property purchased by them and also to
establish their possession in the suit property which the plaintiffs failed to
do so. Hence, the substantial question of law is answered in favour of the
appellant. The First Appellate Court without considering the above facts,
erroneously reversed the judgment of the trial Court which is liable to be set
aside.
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17.In the result,
(i) The Second appeal is allowed. No costs.
(ii) The judgment and decree 26.02.2021 made in A.S.No.99 of 2006
on the file of learned Additional Sub Judge, Kallakurichi, reversing the
judgment and decree dated 07.10.2005 made in O.S.No.908 of 1998 on the
file of learned Principal District Munsif, Kallakurichi is set side.
consequently, connected miscellaneous petition is closed.
.10.2025
vsn
Index: Yes/No
Speaking order / Non-speaking order
To
1.The Additional Sub Judge, Kallakurichi
2. The Principal District Munsif, Kallakurichi
3.The Section Officer, VR Section, High Court, Madras.
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K.GOVINDARAJAN THILAKAVADI,J.
vsn
Pre- delivery judgment made in
17.10.2025
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