G.N. Ray, J. - (1.) This appeal is directed against the judgment and decree passed by the learned Subordinate Judge, 5th Court, Alipore in Title Suit I No. 1 of 1969. The defendants Nos. 1 to 4 are the appellants in the instant appeal and the said Title Suit No. 1 of 1969 was instituted by the plaintiff-respondent Talebur Rahaman Mondal for partition of the joint properties described in the schedule to the plaint on the main ground that in 1947 when the said plaintiff Talebur Rahaman Mondal was a child, the defendants and the mother of the plaintiff Mst. Kohinoor Bibi, defendant No. 5, representing the plaintiff, and some of the other defendants, namely, the brothers and sisters of the plaintiff, sought to partition the joint properties by a deed of partition which is Ext J. The plaintiff has alleged that the properties initially belonged to one Meher Ali Mondal, the grand father of the plaintiff and the plaintiff and the other parties are governed by the Sunni School of Mohamedan Law. It is the case of the plaintiff that according to the Mohamedan Law the plaintiff has inherited 3/32th share in the joint properties and since such joint possession became inconvenient, the plaintiff brought the said partition suit for effecting partition by metes and bounds of the joint properties mentioned in the schedule to the plaint. The plaintiff has alleged that his mother, the defendant No. 5 Mst Kohinoor Bibi, was ever appointed a de jure guardian of the plaintiff or her other minor son and daughter. As such, she had no authority to deal with the properties belonging to the minor as a de focto guardian and the alleged deed of partition effected in 1947 (Ext J) is void ab initio and no effect can be given to the said deed of partition. It may be noted in this connection that after attainting majority, the present plaintiff along with his mother and other brothers and sisters, namely, defendants Nos 5, 6 and 7 had also transferred some of the joint properties as referred to in Ext 1(2) and 1(1). So far as the properties covered by Ext. I dated 11th September, 1960 is concerned, it should be noted that the plaintiff had not attained majority and such property was conveyed by the mother of the plaintiff representing the minor as a de focto guardian. The plaintiff has attained majority sometime in the year 1966. The said suit was contested by the defendants Nos. 1 to 4 by filing a joint written statement and it has been con ended by the said defendants in tile written statement that sometime in November, 1943 all the co-sharers and heirs of Meher Ali Mondal including Abu Bakkar Mondal, the father of the plaintiff, entered into an agreement for partition of the properties by referring their disputes to the Arbitrators, namely, Jyotindra Nath Mitra and Chandi Charan Bose with the help of an Engineer Hiron Kumar Sarkar. On the basis of such agreement among the co-sharers, the dispute relating to the partition of the joint properties had been referred to the said Arbitrators and the said Arbitrators he'd sittings for the purpose of giving award and when the matter was almost finalised, the said Abu Bakkar Mondal died. Thereafter his widow Mst. Kohinoor Bibi, defendant No. 5 representing herself and also her minor sons and daughters including the plaintiff Talebar Rahaman Mondal in terms of the earlier agreement made by Abu Bakkar Mondal referred the matter to she said Arbitrators for effecting partition amongst the co-sharers and the said Arbitrators thereafter published the award and the deed of partition dated May 23, 1974 was executed by the co-shares including Kohinoor Bibi for self and minor son in terms of the award. The defendants have contended that the said deed of partition have duty been acted upon by all the parties and they treated the separate allotment given to the respective co-sharers as their personal properties. The defendants have also alleged that a partition suit was also instituted by the present plaintiff and also his brothers and sisters being represented by their maternal uncle Siddique Ahmed as the next friend being Title Suit No. 72 of 1951 in the fourth court of the learned Subordinate Judge, Alipore. The said suit was contested by the defendants nos. 1 to 4 but the suit was ultimately dismissed for default in April 16, 1957. The defendants have also contended that the defendants no. 1 had instituted a suit against defendant nos. 2 to 4 being Title Suit No. 66 of 1958 in the fifth court of the learned Subordinate Judge, Alipore, for the purpose of declaration that the wakf created by the sud defendant no. 1 in respect of some of the properties was a valid document and the said Title Suit No. 66 of 1958 ended in compromise between the parties whereby the defendants in the said stiff had admitted the valid dedication of the properties mentioned in schedule 'A' to the plaint of that suit and creation of a Wakf-Al-Aulad, since enrolled in the office of the Commissioner of Wakf being E.C. No. 3311. The defendants have contended that after the creation of the said wakf, the defendants have no longer any personal interest in the properties mentioned in the schedule 'A' to the plaint and the plaintiff, therefore, cannot get any decree for partition in respect of the said properties. The defendants have also contended that the plaintiff along with the brothers and sisters and mother had sold, transferred and/or conveyed portion of the properties allotted to them by virtue of the said deed of partition dated May 23, 1947 and they also agreed to transfer some other properties. Such acts on the put of the plaintiff, his mother, brothers and sisters clearly establish that the parties including the plaintiff have accepted the said deed of partition dated May 23, 1947 and the plaintiff even after attaining the majority transferred some of the properties allotted to the plaintiff and his brothers and sisters in terms of the said deed of partition dated May 23, 1947. In the circumstances, it must be held that the plaintiff even after attaining majority has ratified the said deed of partition dated May 23, 1947. The defendants have alleged that in the aforesaid circumstances the present suit for partition is not maintainable. A joint written statement has also been filed in the instant suit by the defendants nos. 5 to 7, namely, the mother, brothers and sister of the plaintiff. By the aforesaid written statement the said defendants Nos. 5, 6 and 7 have supported the case of the plaintiff and they have alleged that the said deed of partition was not binding on the parties and the mother was compelled to sign the said deed of partition when she was quite helpless. On the basis of the said pleadings of lint Parties, several issues were framed and the issues which have been finally framed after recasting the earlier issues have been included in pages 27 and 28 of part-I of the Paper Book of this appeal. On behalf of the plaintiff the plaintiff himself has deposed and he has stated that he wat only four months old when his father had died and he has attained majority in the year 1966. He has also stated that he has inherited 3/32th share in the suit properties and the defendant No. 1 Abdul Khaleque Mondal, who had managed the properties, has failed to give accounts and partition the joint properties although he was asked for such accounts. He has also deposed to the effect that the defendant No. 1 Abdul Khaleque Mondal is realising rents from 25A, Meher Ali Mondal Street. The plaintiff, his brothers, and sisters are realising rents of a tiled house there. His brother Kader is also realising rents from 46/1/C, Diamond Harbour Road and his brother is realising rent in respect of 6. Branfield Road and No. 50-C, Diamond Harbour Road and 53, Hossain Shah Road. The plaintiff has admitted that he along with the brother and sister have transferred 1 cottah of holding No. 25-C Meher Ali Mondal Street. The plaintiff has deposed that he is not aware of the wakf in respect of the suit properties. On behalf of the contesting defendants, defendant no. 1 Abdul Khaleque Mondal has deposed. The said Abdul Khaleque Mondal has stated that the said partition was effected on the basis of agreement of all the parties including Abu Bakkar, the father of the plaintiff and reference to arbitration was made by Mst. Kohinoor Bibi in the similar terms as was made by Abu Bakkar Mondal Abdul Khaleque Mondal, however, has stated in his deposition that he does not remember if Kohinoor Begum was appointed as a guardian by Court for her minor sons including the plaintiff. It may be noted in this connection that excepting Abdul Khaleque Mondal, none of the contesting defendants has deposed in this suit and the said Abdul Khaleque Mondal has not given any evidence to the effect that some of the properties mentioned in the schedule to the plaint are not the joint properties in respect of which the plaintiff is entitled to claim any partition. The learned Subordinate Judge after considering the respective cases of the parties and the materials placed for the decision of the case and the evidences on record has come to the finding that Mst. Kohinoor Bibi, the defendant no. 5 who is the mother of the plaintiff, was not a de jure guardian of the plaintiff and her other minor sons and daughters. As such, she had no authority to deal with properties of the minor and to agree to the partition to the joint properties on behalf of the minor sons and daughter including the plaintiff. The learned Judge has also held that the deed of partition dated May 13, 1947 is not at all legal and bin ding on the plaintiff and is illegal and void ab initio. The learned Judge has relied on the decision of Privy Council made in the case of Imambandi v. Haji Mutsuddi reported in 45 Indian Appeal 73 = AIR 1918 Privy Council 11 , the decision of the Supreme Court made in the case of Md. Amin v. Vokil Ahmed reported in AIR 1952 SC 358 , the decision of Travancore Cochin High Court made in the case of Assiz v. Chithamma reported in MR Trav Cochin 316.
(2.) The Privy Council in Imambandi's case has held that the de facto guardian of a mohammedan minor has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant nor can such transferee resist an action of ejectment on behalf of the infant as a trespasser if the transferee is put to possession of the property of a minor by the do facto guardian. The Supreme Court in Md. Amin's case has held that the deed of settlement to which a mohammedan minor is a party represented by a de facto guardian is void irrespective of the consideration that it ben filed the minor. In the case of Assiz v. Chithamma , it has been held that the deed of partition to which a mohammedan minor is a party represented by his mother as de facto guardian is void and not binding irrespective of the consideration that it benefited him or the arrangement was followed for a long period. The learned Sub Judge, relying on the said decisions has held that the said deed of partition was void ab initio and as such, no effect can be given to the same. The learned Judge has further held that the earlier partition suit namely Title Suit No. 72 of 1951 of the minor having been dismissed for default on May 23, 1947, the order of dismissal cannot operate as res judicata in the instant suit. The learned Judge has therefore held that the plaintiff has 3/32th share in the joint properties and is entitled to the extent of the said snare. The learned Judge has decreed that sun against the defendants nos. 1 to 4 and without cost against the other contesting defendant no. 25 and ex parte without cost against the rest. The defendants have been directed to make an amicable partition within two months from the date of decree. In default, a Pleader Commissioner will be appointed for a final decree for partition. It has also been directed that the Pleader Commissioner should try as far as practicable not to disturb the possession of the parties and/or their transfers but he should allot the properties in their respective allotments. The learned Judge has also decreed that the parties should lender amicable accounts in the light of the observations made in the judgment within a period of two months from the date of judgment. In default, a Commissioner of Accounts shall be appointed at the instance of the plaintiff to take accounts from both parties and a final decree of accounts shall be passed in terms of the Commissioner's report.
(3.) Being aggrieved by the said judgment and decree, the instant appeal has been preferred in this Court.;