THOTTATHIL SAIDU Vs. AMINA AND OTHERS

JUDGEMENT

(1.) THE question in this appeal is whether the sale of the immovable property of a Mahomedan minor by a so -called de facto guardian - -in this case the elder brother of the minor - -can be validated by the minor ratifying the sale after attaining majority. (It does not appear that a plea of ratification was, in terms, taken by the contesting defendants in this case; nor was any express issue joined on that question. But, both the trial court and the lower appellate court have, it would appear, managed to find such a plea implied in the plea of estoppel, acquiescence and abandonment taken by the defendants and have dealt with the question of ratification in considering the issues joined on these pleas). The first court taking the view that such a sale was void ab initio and therefore incapable of ratification gave the plaintiff herein a preliminary decree for partition and Separate possession of his share of the property, a leasehold, that had been alienated by his brother, claiming to act as this guardian while he was a minor. (The suit was brought within three years of the plaintiff attaining majority so that no question of limitation could possibly arise). But the lower appellate court following the decisions of a single judge of this Court in Abdul Sukkoor v. Muhammed Dirar & Others : 1966 K.L.J. 737and Lakshmi Amma v. Saidakutty alias Kunhi Bava : 1967 K.L.J. 296held that the sale was only voidable and therefore capable of ratification. It also thought that, obsessed by their mistaken view of the law, the parties as well as the trial court had not paid due heed to the question of ratification, and it set aside the decree of the trial court and remanded the suit for fresh trial no merely on the question whether or not there had been a ratification by the plaintiff after attaining majority, but also on the other questions that arose in the suit, questions such as whether the defendants were entitled to any equities or reservations, whether they were entitled to compensation for improvements, and whether they were holding, not under the impugned alienation, but under afresh lease granted to them by the landlord (questions, it will be noticed, entirely unconnected with the question of ratification) on the obviously unsustainable ground that the findings recorded by the trial court on these questions were vitiated by the wrong assumption that the alienation was void ab initio. Even if the view it took regarding the character of the alienation were right, the proper course would have been to call for a finding on the question of ratification; and we might mention that both sides are agreed that in no view of the matter was there the least justification for a remand on the remaining issues. We do not think that the view taken in Abdul Sukkoor v. Muhammed Dirar & Others : 1966 K.L.J. 737 and Lakshmi Amma v. Saidakutty alias Kunhi Bava : 1967 K.L.J. 296is right. In the leading case regarding the alienation of the immovable property of a Mahomedan minor by his de facto guardian, namely, Imambandi v. Haji Mutsaddi, A.I.R 1948 P.C. 11 their Lordships of the Privy Council held that a so -called de facto guardian - -in that case the mother - -had no power whatsoever to deal with the minor's property, no more power than a rank outsider had, and, although their Lordships themselves do not appear to have characterised it in such terms, the decision leaves no room for doubt that they affirmed the set of decisions which declared such a dealing wholly void and ineffective for want "of authority or power on the part of the mother to alienate or encumber the minor's property". Following this decision of the Privy Council, the courts in India including the Supreme Court in Mohd. Amin v. Vakil Ahmed : A.I.R. 1952 S.C. 358 have described such dealings as void. If a transaction is void in the strict sense of the term it has to be regarded as non est, and, it goes without saying that there can be no question of ratifying something that is non -existent. But the learned judge who decided Abdul Sukkoor v. Muhammed Dirar & Others : 1966 K.L.J. 737and Lakshmi Amma v. Saidakutty alias Kunhi Bava : 1967 K.L.J. 296thought that the use of the word, "void in this context by the Supreme Court and the other courts was not in the strict sense of that word but was in the sense which, in strict legal terminology, would be described as voidable at the instance of the minor. And, to reach this conclusion, he relied upon the circumstance that both the Privy Council and the Supreme Court had said that the de facto guardian had no power to convey to another any right or interest in immovable property which the transferee could enforce against the infant, from which he inferred that what their Lordships meant was that the transaction was bad only as against the minor, but was good as against other, or in strict terminology, was voidable at the instance of the minor and therefore capable of ratification by him.

(2.) "Void", it is true, means an empty space and is in strict legal parlance, used to denote a transaction that is altogether devoid of the legal results contemplated. So far as those results are concerned it is legally a nullity; it is as if it never were. But to say, as is often done, that such a transaction is void as against the whole world is misleading in as much as that implies that the whole world would have the right to question it. For, the whole world would neither be interested in, nor even entitled to, question such a transaction. Only a person having at least a title of interest in the subject -matter of the transaction may be, for instance, only the possessory title of a trespasser, would have the right to question it. Nor would it be correct to say that a void act is for all purposes and in all circumstances a nullity. Though void in its primary intent it may nevertheless have effect in some other way. If a sells B's property claiming it as his own, the transaction is doubtless absolutely void, or a nullity, so far as B is concerned. It is wholly destitute of legal efficacy as against B. He need not avoid it; not can he endow it with efficacy by affirming it. Nevertheless, the sale is good as against A and will bind whatever interest he might, subsequently acquire in the property. It can properly be said in such a case that the sale is void as against B or that it gave the buyer no right which he could enforce against B. That would not be to say that the sale is only voidable, voidable at B's instance.

(3.) IT is true that in judgments and other juristic writings, as also in statute the words, "void" is sometimes used to mean voidable, with the result that expressions such as null and void, absolutely void, void ab initio have had to be used on occasion to make it clear that what is meant is void in the strict sense of that term. But we do not think that the numerous decisions of the courts in India, which following, Imambandi v. Haji Mutsaddi, A.I.R. 1948 P.C. 11, have characterised the alienation of the immovable property of a Muslim minor by a de facto guardian as void have used that word otherwise than in its strict sense.