1971 (2) TMI 127 - SC - Indian Laws

Summary

Issues Involved:
1. Validity of the arbitration agreement and award due to the lack of a lawful guardian for the minor appellant.
2. Allegations of fraud and misrepresentation by Abdul Hai regarding the nature of the properties.
3. Whether the suit was barred by limitation.
4. The effect of the decree by the Darul Khaza Court on the partition of the properties.

Issue-wise Detailed Analysis:

1. Validity of the Arbitration Agreement and Award:
The appellant challenged the arbitration agreement and the subsequent award on the grounds that the minor appellant was represented by his brother, Nooruddin, who was not a lawful guardian under Mohammedan Law. The Supreme Court cited the case of *Mohd. Amin & Ors. v. Vakil Ahmed & Ors.* and *Imambandi v. Mutsaddi* to support the principle that a brother is not a legal guardian. The Court concluded that the arbitration agreement, the award, and the decree were void due to the lack of a lawful guardian to protect the minor's interests.

2. Allegations of Fraud and Misrepresentation:
The appellant alleged that Abdul Hai fraudulently misrepresented the properties marked Exhibits B-1 to B-10 as Dargah and Khankah properties, which were, in fact, Matrooka properties. The trial court found that Abdul Hai was in full possession of the properties and had misrepresented their nature to the arbitrators. The Supreme Court agreed, noting that Abdul Hai had concealed the true character of the properties and misled the parties, which constituted fraud.

3. Whether the Suit was Barred by Limitation:
The High Court held that the appellant's suit was barred by limitation, asserting that the appellant had knowledge of Abdul Hai's adverse possession since 1927. However, the Supreme Court found that there was no evidence to show that the appellant was aware of the adverse claim in 1927. The Court emphasized that possession by one co-owner is presumed to be possession by all co-owners unless there is an open denial of title. The Court concluded that the appellant's suit was not barred by limitation, as the appellant only became aware of the true nature of the properties in 1941.

4. The Effect of the Decree by the Darul Khaza Court:
The High Court had held that the decree by the Darul Khaza Court was not obtained by fraud and was not a nullity. However, the Supreme Court found that the decree was invalid because it was based on the fraudulent misrepresentation of the properties' nature by Abdul Hai. The Court noted that the properties were not Dargah and Khankah properties but Matrooka properties, which should be available for partition among the heirs. The Court concluded that the decree of the Darul Khaza Court could not stand due to the fraud and misrepresentation involved.

Conclusion:
The Supreme Court accepted the appeal, set aside the judgment of the High Court, and restored the judgment and decree of the trial court. The appellant was entitled to costs of the Supreme Court, and the parties were to bear their own costs in the High Court. The appeal was allowed.