IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 13TH AUGUST 2009 / 22ND SRAVANA 1931 RFA.No. 424 of 2009() --------------------- OS.137/1992 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANT/ADDL.11TH DEFENDANT. ----------------------------- LAILA BEEVI @ LAILA BUHARI, KUZHIYIL VEEDU, KANIYAPURAM DESOM, PALLIPPURAM VILLAGE, REPRESENTED BY POWER OF ATTORNEY HOLDER A.HAKKIM, --D0--. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): PLAINTIFFS,DEFENDANTS 3 TO 10 & ADDL.DEFENDANT 12/ --------------------------------------------------- 1. N.SUMINA @ SUMMAYYA , D/O.NAZEER, PANDAKASALA VEEDU, PERUMMATHURA, PERUMATHURA, SARKARA VILLAGE. 2. N.SUDHEER, S/O.NAZEER, --DO--. 3. T.NAHEEMA BEEVI, D/O.THAJUDEEN, THERUVIL PANDAKASALA VEEDU, PERUMATHURA, SARKARA VILLAGE. 4. M.MUOHAMMED HUSSAIN, S/O.MEERASAHIB, GREENFIELD, KULATHUPUZHA MURI, KULATHUPUZHA VILLAGE. R.F.A. No. 424 of 2009 -:2:- 5. AURANGAZEB, S/O.AHMMED ALI, MUNZEER NILAYAM, ATTIPRA MURI, ATTIPRA VILLAGE. 6. B.MOHANACHANDRAN NAIR, S/O.BALAKRISHNA PILLAI, PANAYIL VEEDU, VALIYA VEEDU MURI, PALLIPPURAM VILLAGE. 7. A.THAHA, S/O.ALIYARKUNJU, MEEMPALIKUNNU VEEDU FROM VALIYAVILAKATHU VEEDU, VADAKKUMBHAGOM MURI, KAZHAKKOOTTAM MEENAMUKULAM VILLAGE. 8. A.M.ASHRAF, S/O.ABDUL KARIM, SHA NILAYAM, VADAKKUMBHAGOM MURI, KAZHAKKOOTTAM MEENAMUKULAM VILLAGE. 9. THANUJA ASHRAF, D/O.RAMLA BEEVI, RESDING AT --DO--. 10. A.THAHA, S/O.ASANARUPILLAI, KIZHAKKATHIL VEEDU, PALLIPPURAM VILLAGE. 11. ABDUL KHARIM, S/O.MUHAMMED THAMPI, MULLAMANGALAM VEEDU, PULLAMPARA DESOM, PULLAMPARA VILLAGE. ADV. SRI.G.S.REGHUNATH(COVEATOR) SRI.G.S.REGHUNATH FOR CAVEATOR THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 31/07/2009, THE COURT ON 13/08/2009 PASSED THE FOLLOWING: CR V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.F.A. No. 424 of 2009 * * * * * * * * * * * * * * * * * * Dated: 13-08-2009 JUDGMEN T The 11th defendant in the suit O.S. No. 137 of 1992 on the file of the Sub Court, Attingal is the appellant in this Appeal. PRAYER IN THE PLAINT The above said suit instituted by respondents 1 and 2 herein was one for a declaration of the plaintiff's title as per Ext.A3 gift deed dated 27-12-1977 and for a declaration that Ext.A4 cancellation deed and subsequent deeds of transfer executed by the plaintiffs' father (first defendant) are void and for a perpetual injunction restraining the defendants from trespassing into the plaint schedule properties and also for recovery of possession of the plaint schedule properties on the strength of the plaintiff's title in case it is found that possession of the properties are with defendant No. 4 onwards. THE PLAINT AVERMENTS 2. The case of the plaintiffs can be summarised as follows:- The two plaintiffs are the children born to the first R.F.A. No. 424 of 2009 -:2:- defendant Nazeer and his wife the 3rd defendant Naheema Beevi. The 2nd defendant Mariyam Beevi is the mother of the first defendant. Since the plaintiffs are minors, the suit is instituted through their maternal uncle acting as their next friend. Plaint schedule item Nos. 1 to 3 were obtained by the first defendant as per a partition deed registered as document No. 2206 of 1975 S.R.O. Kazhakoottam (Ext.B4) and plaint schedule item No. 4 was purchased by the first defendant as per Ext.A2 registered sale deed dated 5-10-1997. The first defendant was in possession and enjoyment of the properties paying the tax etc. While so, defendants 1 and 3 jointly executed Ext.A3 gift deed dated 27- 12-1977 gifting all the plaint schedule properties to the first plaintiff, then a minor child and to the unborn children, if any, to be born to the donors. At the time of the gift deed the 2nd plaintiff was not born. The gift was accepted by the 3rd defendant mother and the 3rd defendant was holding the properties in trust for the donees. Subsequently, the first defendant executed Ext.A4 cancellation deed dated 15-11-1979 revoking Ext.A3 gift . The said cancellation deed was executed without the junction of the 3rd defendant. Ext.A4 cancellation deed is void ab initio and will not affect the right and title of the minor plaintiffs in whose favour Ext.A3 gift executed by defendants 1 and 3 jointly had become complete and irrevocable. The first defendant had filed a suit as O.S. No. 62 of 1979 before the Sub Court, Attingal for R.F.A. No. 424 of 2009 -:3:- setting aside a sale deed executed by him in favour of his wife, the 3rd defendant. The 1st defendant alleged in the said suit that the sale deed was devoid of consideration and was vitiated by fraud and undue influence. The said suit was contested by the 3rd defendant and the Sub Court dismissed the suit. It was during the pendency of the said suit that the first defendant executed Ext.A4 cancellation deed. An appeal filed by the 1st defendant as A.S. No. 125 of 1986 was also dismissed. After Ext.A4 cancellation deed the first defendant executed Exts. A9, A5 and A7 transfers in favour of strangers. The 4th defendant to whom 60 cents of land along with the house in plaint schedule item No. 1 was sold under Ext.A5 has further sold the said property to the 5th defendant as per Ext.A6. Since Ext.A4 cancellation deed is null and void, all subsequent transfers effected by the first defendant father are invalid. Hence, the suit. 3. Initially, defendants 5 and 7 alone filed separate written statements. DEFENCE OF D5 The 5th defendant contended as follows:- It is for the plaintiffs to decide as and when they attain majority, whether they should claim any right under Ext. A3 settlement deed and whether they should challenge Ext.A4 cancellation deed. They have a right to ratify Ext.A4 cancellation deed. Hence, the next friend who has filed the suit has no right to R.F.A. No. 424 of 2009 -:4:- maintain the action which is premature. The plaintiffs are under the care and protection of their mother and not under the next friend. The plaint averment that the plaint schedule items 1 to 3 absolutely belonged to the first defendant is denied. Under the partition deed of 1975 the 2nd defendant who is the mother of the first defendant had a life estate over the properties of the first defendant who is entitled to the properties subject to the right of the 2nd defendant. The properties were in the actual physical possession of the 2nd defendant and not in the possession of the first defendant. The 3rd defendant had no right or possession over the properties. Even though Ext.A3 settlement deed was executed by the first defendant he never had an intention to bring into effect the said document. Nobody had accepted the settlement deed for and on behalf of the plaintiffs. The first defendant was planning to go to Gulf Countries and he wanted the 3rd defendant to look after the properties while he was away. That was the reason why the name of the 3rd defendant was also shown in Ext.A3 settlement deed. Ext.A3 gift is not in accordance with the provisions of Muslim Law. It is not true that the 3rd defendant had accepted the gift for and on behalf of the plaintiffs and the 3rd defendant did not get any right or possession over the property. Since the first defendant did not go to Gulf the document did not come into effect. The settlement deed was executed for a specific purpose and it become void when that R.F.A. No. 424 of 2009 -:5:- purpose failed. It is true that the first defendant had filed a suit against the 3rd defendant and the same was dismissed. This defendant admits the execution of Ext.A4 cancellation deed by the first defendant. By executing the said cancellation deed, Ext.A3 became void. Therefore, the plaintiffs will not get any right under Ext. A3 settlement deed. The sale deeds in favour of defendants 4 and 5 are valid. DEFENCE OF D7 4. The suit was resisted by the 7th defendant contending inter alia as follows:- The next friend who has instituted the suit on behalf of the minor plaintiffs has no locus standi to do so or to represent the minors. The suit has been filed by the next friend in collusion with the 3rd defendant who is the mother and natural guardian of the plaintiffs. The 3rd defendant is not contesting the suit on account of the said collusion. The next friend is a close relative of the 3rd defendant. The minor plaintiffs were not under the care and protection of the next friend as alleged. Execution of Ext.A3 gift deed is admitted. But the said gift deed was cancelled and the gift is no more in force. The averment that the gift was accepted by the 3rd defendant for and on behalf of the plaintiffs is denied. There was no acceptance of the property mentioned in the gift R.F.A. No. 424 of 2009 -:6:- deed. Defendants 1 and 3 were not on good terms. Ext.A3 settlement deed will not create any right or interest over the properties in favour of the plaintiffs. The 3rd defendant is not in possession of the properties as alleged. The plaintiffs never accepted the gift deed. The 3rd defendant also had not accepted the gift deed. The gift deed had not become absolute or irrevocable as it was not accepted. The property was not physically handed over to the plaintiffs. The first defendant had every right to cancel the settlement deed since it was not accepted by the donees. Exts.A5 sale deed dated 4-7-1981 and Ext.A6 sale deed dated 15-12-1990 are valid documents. Likewise, Ext.A10 sale deed dated 15-10-1988 is also valid. Similarly, Ext.A9 mortgage deed executed by defendants 1 and 2 in favour of the 8th defendant is also valid. The plaint averment that the 8th defendant had fraudulently obtained a certificate of purchase in respect of plaint schedule item No. 4 covered by Ext.A9 sale deed is denied. The Civil Court cannot consider the correctness or otherwise of the certificate which is not challenged. This defendant is a bona fide purchaser of plaint schedule item No. 4 as per Ext.A10 sale deed and 23 cents out of plaint schedule item No. 1 as per Ext.A7 sale deed. None of the documents executed by the first defendant pursuant to Ext.A4 cancellation deed is invalid or inoperative. The suit properties have not been properly valued and the Court Fees paid is insufficient. The R.F.A. No. 424 of 2009 -:7:- plaintiffs are not entitled to any of the reliefs as prayed for in the suit which may be dismissed. THE EARLIER DECREE 5. Originally as per judgment and decree dated 22-2- 1995 the Court below decreed the suit with regard to the plaint schedule item Nos. 1 to 3 but dismissed the suit so far as it relates the plaint schedule item No. 4 admeasuring 46 cents covered by Ext.A9 mortgage dated 20-3-1981 executed by the first defendant and his mother (the 2nd defendant) in favour of the 8th defendant who had obtained a patta in respect of the same and had assigned the same to the 7th defendant as per Ext.A10 sale deed dated 15- 10-1988. THE EARLIER APPEALS 6. Aggrieved by the dismissal of the suit regarding the plaint schedule item No.4 the plaintiffs filed an appeal before this Court as A.S. 233 of 1999. Aggrieved by the decree in so far as it relates to the 60 cents of the plaint schedule item No. 1 along with the building the appellant herein who was then a stranger to the suit filed an appeal as A.S. No. 432 of 1997 before this Court. Both the above appeals were heard together and disposed of by a common judgment dated 10-4-2008. The 7th defendant raised a R.F.A. No. 424 of 2009 -:8:- contention before this Court that since both the plaintiffs were minors on the date of institution of the suit in the year 1990 and also since both of them had the right either to repudiate or ratify Ext.A3 gift, they could have waited till they attained majority and the suit was, therefore, premature. He also contended that the maternal uncle of the minors was incompetent to figure as their next friend as the minors were not under his care or protection. Both these contentions were repelled by this Court holding inter alia that there was no law which compels a minor to wait until he attains majority to institute a suit and that there was nothing to show that the next friend who is the maternal uncle of the minors had any interest adverse to that of the minor plaintiffs and, therefore, the suit as framed was maintainable. In the appeal preferred by the plaintiffs as A.S. 233 of 1999 they had filed I.A. 3792/06 before this Court to amend the plaint so as to delete the original plaint averment to the effect that the 3rd defendant mother accepted the gift on behalf of the donees and was thereafter holding the properties in trust and to substitute the same by incorporating a plea that defendants 1 and 3 together gifted the property and the first defendant father was holding the same as a trustee. The said application was allowed by this Court. This Court also permitted the appellant herein to be impleaded in the suit and to contest the same raising all the defences available to her. R.F.A. No. 424 of 2009 -:9:- 7. In the meanwhile, the 2nd defendant who is the mother of the first defendant died and another son of the 2nd defendant was impleaded as the 12th defendant. DEFENCE OF D11 8. After the remit by this Court the appellant got herself impleaded as the 11th defendant in the suit. She resisted the suit contending inter alia as follows:- The suit is not maintainable either in law or on facts. The written statement dated 30-7-1993 filed by the 5th defendant may also be read as part of this written statement. The suit was instituted fraudulently when the minor plaintiffs were under the care and protection of their parents. The right of the first defendant over the plaint schedule properties is by virtue of Ext.B4 partition deed of the year 1975 and the entire properties were in the possession and enjoyment of his mother the 2nd defendant. The first defendant never had any intention to settle the properties in favour of the plaintiffs nor has the settlement deed come into effect. The third defendant who is the mother of the plaintiffs did not have any right over the plaint schedule properties. Ext. A3 gift executed in favour of an unborn child is void as per the Muslim Law. The gift was not accepted for and on behalf of the minor child by anyone. The amended plaint is R.F.A. No. 424 of 2009 -:10:- inconsistent with the earlier pleadings. The properties were never possessed by the first or 3rd defendant as trustees for the benefit of the minors. With the execution of Ext.A4 cancellation deed the earlier settlement deed became invalid and inoperative. The said cancellation deed is valid and binding on the plaintiffs. All the documents executed by the first defendant subsequent to the cancellation deed are valid and the plaintiffs have no right to challenge the same. O.S. No. 62 of 1979 was not in respect of the plaint schedule properties. Ext.A6 sale deed dated 15-12-1990 by the 4th defendant in favour of the 5th defendant was preceded by an agreement for sale. For specific performance of the said agreement the 5th defendant had filed O.S. No. 203 of 1988 before the Sub Court, Thiruvananthapuram and the said suit was decreed. It was pursuant to the decree passed in the said suit that the 4th defendant executed Ext.A6 sale deed. Thereafter the 5th defendant sold 60 cents of land together with the building comprised in plaint schedule item No. 1 to this defendant as per Exts. B1 and B2 sale deeds dated 23-7-1994 and 19-7-1994 respectively. This defendant had paid adequate consideration for the sale and has got mutation effected in her name. The said property has been in the possession and enjoyment of this defendant since then. The Court fee paid is not proper. This defendant is a bona fide purchaser for a valuable consideration without notice of the pendency of the suit. Even if it is held that R.F.A. No. 424 of 2009 -:11:- the plaintiffs have subsisting title over the plaint schedule properties the first defendant who is the father of the plaintiffs being the vendor of the property is liable to indemnify the loss sustained by the subsequent purchasers including this defendant. The plaintiffs being the legal heirs of the deceased first defendant are liable to indemnify this defendant who has effected valuable improvements in the property. If for any reason it is held that the sale deed in favour of this defendant is not valid, this defendant is entitled to value of improvements and she reserves her right to claim the same at the appropriate stage. The suit is devoid of any merit and may, therefore, be dismissed with compensatory costs. 9. The 12th defendant who was impleaded as the legal representative of the 2nd defendant filed a written statement substantially adopting the contentions of defendants 5, 7 and 11. THE ISSUES 10. The Court below framed 7 issues and three additional issues as follows:- 1. Is the suit premature ? 2. Whether the gift has not been accepted on behalf of the minor plaintiffs ? R.F.A. No. 424 of 2009 -:12:- 3. Whether the gift deed No. 3919/77 is accepted by the plaintiffs donees and legally valid ? 4. Whether the next friend is competent to sue on behalf of the minor plaintiffs ? 5. Whether the 5th defendant is a bonafide purchaser for consideration ? 6. Whether the cancellation deed and subsequent documents are void for all or any of the reasons mentioned in the plaint ? 7. Reliefs and Costs ? Addl. issue No. 8. Whether then sale deed No. 2481 dated 15-10-1988 in favour of the 7th defendant is void and whether it is liable to be set aside ? Addl. issue No. 9 : Whether the additional defendant No. 11 is a bonafide purchaser for valuable consideration in respect of the plaint schedule property extending 60 cents by sale deed No. 1417/94 and sale deed No. 1418/1994 of SRO Murukumpuzha. Addl. Issue No. 10. Whether the defendants 1 and 2 were trustees on behalf of the plaintiffs by document No. 3919 of 1997 dated 27-12-1977 ? R.F.A. No. 424 of 2009 -:13:- THE TRIAL AFTER REMAND 11. On the side of the plaintiffs the first plaintiff was examined as P.W.1 and Exts. A1 to A10 were got marked. On the side of the defendants no oral evidence was adduced and Exts. B1 to B5 were got marked. THE TRIAL COURT 'S DECREE 12. The learned Subordinate Judge after trial, as per revised judgment and decree dated 3-12-2008 decreed the suit as prayed for and prohibitory injunction with regard to the plaint schedule properties except plaint schedule item No. 4 (46 cents) and 60 cents and the building in plaint schedule item No. 1 in respect of which granting a decree for recovery of possession subject to the mortgage rights in respect of plaint schedule item No. 4. It is the said decree which is assailed in this appeal by the 11th defendant whose claim is confined only to the 60 cents of land together with the building in plaint schedule item No. 1. 13. I heard Advocate Sri. S.B. Krishna Mani, the learned counsel appearing for the appellant and Advocate Sri. R.F.A. No. 424 of 2009 -:14:- G.S. Reghunath, the learned counsel appearing for respondents 1 and 2 / the plaintiffs. ARGUMENTS OF THE APPELLANT (D11) 14. Adv. Sri. Krishna Mani, the learned counsel appearing for the appellant made the following submissions before me in support of the Appeal:- The suit was originally laid through the next friend of two plaintiffs who were minors. The next friend is none other than the maternal uncle of the plaintiffs. The minors were stated to be under the care and protection of the said next friend. The parties are Muslims. In the case of a Muslim minor the law particularises certain specified relatives as the persons entitled to the custody of such minor. Paragraph 357 of the Principles of Mahomedan Law (19th Edn.) by Mulla enumerates the persons entitled to the custody of minor boys and unmarried girls. The father and the male relations on the paternal side alone are entitled to custody of Muslim minors and if there is no such relative then it is the Court which has to appoint a guardian for the person of such minor. So the suit instituted on behalf of the minors by their maternal uncle styling himself as the next friend was not maintainable. Ext.A3 gift deed was invalid since it does not satisfy the essentials of a valid Muslim gift. There should be R.F.A. No. 424 of 2009 -:15:- an unequivocal declaration of the gift by the donor, acceptance of the gift express or implied by or on behalf of the donee and delivery of possession of the subject of the gift by the donor to the donee to the extent the subject matter of the gift is susceptible of. (Vide paragraphs 149 to 150 Mulla). Ext.A3 recites at page 5 as follows:- “പടക വസ വകകള ഇപള മ ല നമ ടയ  സനനങള പയ  പപരല പപക വരവ ട യ പടയ പപകണ ” (from now onwards mutation to be effected in the names of the donors and their children) The document does not recite that such mutation is to be effected on behalf of the donees. So there was no intention on the part of the donors to divest their title or possession completely to the donees. Where the donor retains possession of the corpus in his own right despite the gift such a gift is invalid. Vide Beepathumma and others v. Mohammed Nakoor Meera Rowther and others - AIR 1977 Kerala 54 = ILR 1976 (2) Kerala R.F.A. No. 424 of 2009 -:16:- 13 7. Ext.A3 gift being one to an unborn child is void. Paragraph 141 of Mulla on Mahomedan Law states as follows: “141 – Gift to unborn person:- A gift to a person not yet in existence is void” (Abdul Cadur v. Turner (1884) 9 Bombay 158; Mahomed Shah v. Official Trustee of Bengal (1909) 36 Calcutta 431 and Imam Sahib (1955) 1 MLJ 449). If A3 is void as against the 2nd plaintiff, it is void as against the first plaintiff also . See In Mohd. Amin v. Vakil Ahamad – AIR 1952 SC 358 the Apex Court observed as follows:- “14. We are, therefore, unable to accept the case as an authority for the proposition that a deed of settlement which is void by reason of the minor not having been properly represented in the transaction can be rehabilitated by the adoption of any such line of reasoning. 15. If the deed of settlement was thus void, it could not be void only qua the minor plaintiff but would be R.F.A. No. 424 of 2009 -:17:- void altogether qua all the parties including those who were sui juris. This position could not be and was not as a matter of fact contested before us”. Even in the case of a minor donee delivery of possession can only be given through the intervention of the proper guardian of such minor. (Vide Katheesa Umma v. Kunhamu – AIR 1964 SC 275 and K.P. Abdul Rahiman v. Kunhi Muhammed – AIR 1975 Kerala 150). In the plaint prior to its amendment what was pleaded was that the gift was accepted by the mother. Admittedly, the first defendant father was alive. If so, the acceptance of the gift by the mother who was incompetent to do the same was without any authority. Under Mohemedan law mother can never be the guardian or custodian of minor children. (Vide Madhavan Pillai v. Abdurhim – 1956 KLT SN 11). Mother of a Muslim minor cannot act or be appointed as the guardian of such minor. (Mahboobh Sahib v. Syed Ismail – AIR