Muslim Law Does Not Recognise Theory Of Representation; Interest Of Each Heir Is Separate & Distinct: Gauhati High Court
The Court held that the elder brother could not validly sell the shares of his minor siblings as their guardian under Mohammedan law, but found no perversity in the concurrent findings sustaining the purchaser’s title and recovery of possession.
The Gauhati High Court has held that each heir’s interest is separate under Muslim law, which does not recognise the theory of representation.
The Court was hearing a second appeal under Section 100 of the Code of Civil Procedure against a first appellate judgment affirming the trial court’s decree in favour of the purchaser/plaintiff and rejecting the defendants’ counterclaim seeking declaration that the registered sale deed was illegal, inoperative and liable to be cancelled.
A Single Judge Bench of Justice Kalyan Rai Surana, while relying on the Telangana High Court’s ruling in Naseeruddin Ahmed Khan v. Mohd. Muzefferuddin Mahmood Khan (2024), highlighted: “Mohammedan Law does not recognise theory of representation. Interest of each heir is separate and distinct. There is nothing contrary to law for Mohammedan adult male members of a family carrying on trade for the benefit of all the interested members, including minors and females. When the adult male member holds assets for carrying on business on behalf of all the persons interested, then he stands in fiduciary relationship to such other persons.”
The Court, accordingly held: “Therefore, it is seen that the finding of the learned Trial Court, as modified by the finding by the learned first appellate court that the sale deed was void in respect of 4/5th share is the correct appreciation of Mohammedan Law, which does not recognize Nagar Ali, son of Yad Ali, who is also the elder brother of other four minor siblings, to act as their guardian so as to validly sell-off the land covered by the registered sale deed no. 2913/75 dated 18.02.1975.”
Advocate R. Ali appeared for the appellants; Advocate A.R. Sikdar appeared for respondents.
Background
The original plaintiff had filed a title suit claiming that she had purchased the suit land by a registered sale deed executed by one of the heirs of the original pattadar, for himself and as guardian of four minor siblings. She pleaded that she had remained in possession after the purchase, paid land revenue, and was later illegally dispossessed by the defendants.
The defendants filed a written statement with a counterclaim, asserting that the sale deed was illegal, fraudulent and void ab initio. Their case was that the elder brother was not the legal guardian of the minors, no guardianship certificate had been obtained, and therefore title could not pass to the plaintiff under the deed. They also claimed possession over the suit land and sought cancellation of the sale deed.
The trial court partly decreed the suit by declaring the plaintiff’s title and granting recovery of vacant possession by evicting the defendants, while dismissing the counterclaim as barred by limitation. The first appellate court dismissed the defendants’ appeal and affirmed the trial decree, holding that though the sale deed was void in respect of the minors’ shares, the defendants’ challenge was barred and the purchaser had established possession for decades.
The High Court admitted the second appeal on the substantial question whether the lower appellate court committed a grave error of law in holding that the plaintiff had right, title and interest over the suit land although the sale deed by which she purchased the land was void.
Court’s Observations
The Court noted that Sir Dinshaw Mulla’s Principles of Mohammedan Law did not contain anything to suggest the existence of a concept of joint family under Mohammedan law, though fiduciary relationships may exist.
The Court treated the interests of heirs under Mohammedan law as separate, while recognising that a fiduciary relationship may arise where an adult male member holds assets or carries on business on behalf of all interested persons.
The Court accepted the first appellate court’s approach that, under Mohammedan law, the father and grandfather are guardians of minors, while other relatives such as the mother or brother are only de facto guardians and cannot sell minor property without appointment by a court.
The Court noted that the first appellate court had relied on Mohammad Amin v. Vakil Ahmed (1952), followed in Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul Quadri (1971), to hold that such a transaction was void and not merely voidable.
The Court held: “Thus, the learned trial court is found to have correctly decided the issue no. 10 in the negative, meaning thereby that the sale deed no. 2913/75 dated 18.02.1975 (Ext.1) is valid. The said decision of the learned Trial Court has been affirmed by the learned First Appellate Court, by explaining that the said sale deed was valid so far as it relates to one-fifth share of Nagar Ali.”
The Court agreed with the concurrent findings that the plaintiff had proved possession over the suit land from the time of purchase and cultivation through adhiars. It noted that the first appellate court had found that the defendants’ own witnesses supported the plaintiff’s case regarding cultivation and possession.
The Court observed: “However, as the plaintiff was found to be in possession of the suit land since last 30-33 years from the date of judgment and decree, passed by the learned Trial Court. Accordingly, the plaintiff has been able to perfect her right, title and interest over the suit land and thus, the concurrent finding by both the learned courts that the plaintiff (now the substituted plaintiffs) was entitled to recovery of the suit land, stands on sound legal footing.”
The Court also referred to Article 59 and Section 27 of the Limitation Act, 1963. It noted that the plaintiff’s suit for recovery of possession was filed within limitation after dispossession, while the defendants’ challenge to the sale deed was disbelieved and held barred by limitation.
The Court found that the appellants failed to show any incorrect or perverse appreciation of pleadings or evidence by the trial court or the first appellate court.
The Court held: “The appellants have not been able to demonstrate that the learned trial court or the learned first appellate court had committed any error in appreciating the pleadings and evidence on record or that any part of their respective finding on any issue was incorrect or perverse, for not considering the pleadings and evidence or for taking into consideration any extraneous materials on record.”
Answering the substantial question of law against the appellants, the Court held: “Accordingly, the substantial question of law framed by this Court is answered by holding that the learned Trial Court and the learned First Appellate Court are not found to have committed any grave error of law in holding that the plaintiff has right, title and interest over the suit land.”
The Court also referred to Deva v. Sajjan Kumar (2003) on the scope of interference with concurrent findings in a second appeal under Section 100 CPC.
Conclusion
The High Court dismissed the second appeal with costs. It directed the Registry to draw up a decree of dismissal of the appeal, send it to the trial court for record, and return the records of the trial court and first appellate court along with a copy of the judgment and order.
Cause Title: On The Death Of Nur Mohammad All His Legal Heirs And 7 Ors. v. Legal Heirs Of Late Tarubala Saha, On The Death Of Jagadish Ch. Saha, His Legal Heirs And Ors. (Neutral Citation: 2026:GAU-AS:12126)
Appearances
Appellants: Advocates R. Ali, S. Hussain and M.Z. Shah
Respondents: Advocates A.R. Sikdar, M.H. Talukdar, N. Ahmed, A. Hussain and A. Kalam