SAIDU Vs. AMINA

JUDGEMENT

(1.) WE do not think that the view taken in Abdul Sukkoor v. Muhammed Dirar & Others 1966 KLT. 605 and Lakshmi Amma v. Saidakutty alias Kunhi Bava 1967 KLT. 203 is right. In the leading case regarding the alienation of the immovable property of a Mahomedan minor by his de facto guardian, namely, Imambandi versus Haji Mutsaddi, AIR. 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 AIR. 1952 SC. 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 nonexistent. But the learned judge who decided Abdul Sukkoor v. Muhammed Dirar & Others 1966 KLT. 605 and lakshmi Amma v. Saidukutty alias Kunhi Bava 1967 KLT. 203 thought 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 others, 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 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 or 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 would 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; nor 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.) A voidable transaction can arise in many ways. It can arise when a person actually having no authority to act for another purports to do so, for example, by claiming to be the agent of the latter. It can arise when the kind of person described in S. 38 of the Transfer of Property Act for example, the guardian of an infant, or the manager of a joint family, having authority to deal with the property of another only under certain circumstances deals with the property when those circumstances do not obtain. It can a rise when a person acting for himself acts in circumstances attracting S. 19 or 19a of the Indian Contract Act. In all these cases, the transaction is capable of being ratified by the person affected of course he must be sui juris and aware of the circumstances. In the first case, as the Privy Council put it in Bhavani shankar v. Gordhandas AIR 1943 PC. 66 ratification is in law equivalent to previous authority the ratification precludes a denial of previous authority (It is interesting to note that the Hedaya (Hamilton, 2nd edition, d. 296)gives much the same reason for the validation of a Fazoole sale, or the sale of the property of another without his consent, by ratification by the latter. It is, it says, as if the Fazoolee seller had been an agent for sale because the subsequent assent is equivalent to a previous appointment of agency ). In the second and third cases ratification is deemed to be conclusive proof, in the one case, that the circumstances necessary for authority did obtain, and, in the other, that the circumstances invalidating the transaction were not present. But with regard to the first case it is to be remarked that if the validation is because subsequent ratifications in law equivalent to previous authority, namely, authority when the transaction was actually effected, it presupposes that the person affected was at the time competent to confer authority. This indeed is expressly stated in Imambandi v. Haji Mutasaddi AIR 1948 PC. 11 where, after observing that according to Shafei all dealings by an unauthorised person are absolutely void, their Lordships go on to observe: "in their Lordships' opinion, the Hanafi doctrine relating to a sale by an unauthorised person remaining dependant on the sanction of the owner refers to a case where such owner is sui juris, possessed of the capacity to give the necessary sanction and to make the transaction operative. They do not find any reference in these doctrines relating to fazuli sales so far as they appear in the Hedaya or the Fatawai Alamgiri, to dealings with the property of minors by persons who happen to have charge of the infants and their property in other words, the "de facto guardians". The Hanafi doctrine about fazuli sales appears clearly to be based on the analogy of an agent who acts in a particular matter without authority, but whose act is subsequently adopted or ratified by the principle which has the effect of validating it from its inception. The idea of agency in relation to an infant is as foreign, their Lordships conceive to Mahomedan Law as to every other system". It is clear from what their Lordships have said that the person affected must be sui juris at the time of the transaction for a validation by a ratification, and although their Lordships were not there directly concerned with the question of ratification we think that this decision is clear authority for the view we are taking that there can be no ratification of the sale of the immovable property of a Mahomedan minor by a so-called de facto guardian. A de facto guardian is not recognized by the mahomedan Law. He is a rank outsider and an alienation by him can fall if at all, only in the first of the three classes of cases we have mentioned. His position is at best that of a person who assumes the mantle of an agent, and, as their Lordships of the Privy Council have observed, the idea of agency in relation to an infant is as foreign to Mahomedan Law as to every other system of law. On the other hand a dealing by a guardian the law recognizes, whether de facto or de jure, falls within the second of the three classes we have mentioned. Like a trustee he acts on the strength of his own authority, authority vested in him by law and not on the strength of any authority derived from the minor or the cestui que trust as the case may be. If the minor after attaining majority affirms the transaction with open eyes, then it will be conclusively presumed that his guardian acted within the scope of his authority.