SYED SHAH GHULAM GHOUSE MOHIUDDIN AND ORS. versus SYED SHAH AHMED MOHIUDDIN KAMISUL QUADRI (DEAD) BY L. RS. AND OTHERS

Citation: [1971] 3 S.C.R. 734 · Decided: 17-02-1971 · Supreme Court of India · Bench: G.K. MITTER · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

734 
SYED SHAH GHULAM GROUSE MOHIUDDIN AND ORS. 
v. 
SYED SHAH AHMED MOIIIUDDIN KAMISUL QUADRI 
(DEAD) BY L. Rs. AND OTHERS 
February 17, 1971 
[G. K. MITTER AND A. N. RAY, JJ.] 
ldinorit,y and Guardianship-Muslim minor represented in orbitration 
proceedings and in Court by brother who was not appointed guardian 
by Courll--Award and decree on award are viti'ated. 
Limitation Act, 1908, ss. 18 and 144-Renunciation of rights by co-
Ol-Vners in property in favour of one co-owner under wrong impression 
that it was endowed property-Property later discovered to be Matrooka 
property-Limitation for filing suit is governed by s. 144 Limitation Act 
1>08-Where knowledge of right to partition is held back by fraud limita-
tion is extended under s. 18. 
Adverse possession-Possession by 
one 
co-owner is not by itself 
udverse to 
o~her co-owners-These must be open denial of title to the 
parties entitled to the property by excluding and ousting them-Posses-
sion is not adverse to parties not G'Ware of their rights. 
Shah Abdul Rahim wa.S Sajfad~nasheen of a Dargah and Khankah in 
Hyderabad. 
He had four sons and two daughters. 
After his death in 
1905 he was succeeded as Sajjadanasheen by his eldest ,son Abdul Hai Shah 
Abdur Rahim left Matrooka property apart from the properties apper-
taming to the Dargah and Khankah. 
The matter of the partition of 
Matrooka properties was referred to arbitrators. The appellant who was 
Abdur Rahim's youngest son was a minor at the time and was represented 
in the arbitration proceeding by his brother Nooruddin. 
The properties 
Exhibits B-1 to B-10 were acknowledged by the parties before arbitrators to 
be in the possession of Abdul Hai as Dargah and. Khankah properties and 
any right or claim to them was renounced by Abdul Hai's brothers and 
sisters. 
The arbitrators gaye their awa'rd on August 1, 1908 partitioning 
the properties. 
On August 13, 1908 there was a decree in the Darul 
Khaza Coust confirming the aforesaid award. The properties B-1 to B-10 
thereafter remained in the possession of Abdul Hai. In 1927 Abdul Hai 
got an adjudication from the Nizam's Government that the Dargah and 
Khankah properties consisted only of two villages and that properties B-1 
to B-10 were not Dargah and Khankah properties. 
In 1938 Abdul Hai 
\\>rote a letter to the· Nizam's government again asserting that properties 
B-1 to B-10 were his personal properties. The aprellant filed a suit on 
24th Julv 1941 for setting aside the decree dated August 13, 1908, passed 
by the Darul_Khaza Court and for partition of the Matrooka properties 
left by his father including properties B-1 to B-10. 
He impeached the 
award and the decree on the ground that he was not represented by a 
lawful guardian. "He claimed that the award and decree should be avoided 
because they were based on the Wrongful representation of Abdul Hai 
that they were Dargah and Khankah properties. The ~rial court decreed 
the suit holding : ( !) that the award and decree m question were 
obtained by fraud; (2) that the letter written by Abdul Hai in 19.38 
showed that he was aware of the Mafi'ooka character of the properties 
but kept this fact from his brothers and sisters; (3) that the appellant 
A 
••
B 
c 
D 
E 
F 
G 
H 
• 
A 
B 
c 
D 
E 
F 
G 
SHAH GHULAM v. SRAH AHMED 
735 
came to know the facts from the said letter of I 931> and the suit was not 
therefore barred by limitation. The High Court in appeal held : ( 1 J that 
the appellant was a minor and therefore reference to the arbitration and 
th.c award thereon were void; (2) that the decree passed by the Darul-
khaza Court was not a nullity since the appellant did not file his suit 
within three years after attaining majority; (3) that the decree was not 
obtained by fraud; (4) that Abdul Hai asserted in 1927 that the prOjJer-
ties in question were his personal properties and this assertion of title 
adverse to the appellant and his brothers and sisters became known to 
them in 1927 and for this reason also the suit was barred by limitation. 
In appeal by certificate to this Court, 
HELD : The appeal mµst be allowed. 
(i) The minority of the appellant was a fact found by the trial court 
and the High Court. 
The appellant's brother who represented him in · 
the arbitration and court proceedings was not a legal guardian, nor wa• 
he appointed by the Court. The relinquishment of property by Noorud-
uin on behalf of the minor was not binding on the minor whose interests 
v.cre no

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