BHIKAJI RAMCHANDRA SHIMPI Vs. AJAGARALLY SARAFALLY BOHORI

JUDGEMENT

(1.) THIS is an appeal against the decision of the First Class Subordinate Judge at Dhulia dismissing the plaintiff's suit to recover vacant possession of a land purchased by him from a Mahomedan widow and her minor daughter. The land originally belonged to one Abdul Rahiman who mortgaged it to the plaintiff and died leaving a widow Sugarabi and a minor daughter Nyamatbi. After his death the plaintiff obtained a decree on the mortgage against Sugarabi and Nyamatbi, and in execution of the decree in darkhast No. 178 of 1989 the papers were transferred to the Collector for sale of the mortgaged land. Sugarabi having refused to act as the guardian of her minor daughter Nyamatbi, the Nazir of the Court was appointed as her guardian ad litem in the darkhast proceedings. Before the sale was held by the Collector, the parties came to a compromise and Sugarabi made an application to the Court that she had agreed to sell the mortgaged land to the plaintiff (decree-holder) for Rs. 25,000 in full satisfaction of the decree, that she was willing to act as her minor daughter's guardian ad litem, that she should be appointed as such in place of the Nazir of the Court, that the arrangement was for the benefit of the minor, that permission should be granted to her under Order XXXII, Rule 7, of the Code of Civil Procedure, to effect the compromise on behalf of the minor and that the proceedings should be recalled from the Collector. The application was granted on September 22, 1941. On September 26, 1941, Sugarabi executed a sale-deed on behalf of herself and as the, guardian her minor daughter, conveying the land in suit to the plaintiff for Rs. 25,000. After the deed was registered, the plaintiff informed the Court that the decree was satisfied by the sale-deed, and on October 14, 1941, the darkhast was disposed of with a note that the decree under execution had been fully satisfied. The plaintiff then filed this suit against the defendants who were claiming to be in possession as lessees. On the pleadings twelve issues were raised in the lower Court, but the suit was dismissed on the ground that Sugarabi was neither the legal nor the certificated guardian of her minor daughter and the sale-deed passed by her was, therefore, void.

(2.) IT is now urged by Mr. Coyajee for the plaintiff that the sale being voidable at the instance of the minor, it is not open to the defendants to impeach its validity and that in any case the leave granted by the executing Court under Order XXXII, Rule 7, Civil Procedure Code, was sufficient to clothe Sugarabi with power to sell the land as the guardian of her minor daughter.

(3.) THE question again arose before the Privy Council in Imambandi v. Mutsaddi (1918) L. R. 45 I. A. 73: S. C. 20 Bom. L. R. 1022, and after reviewing several cases, their Lordships proceeded to consider the three propositions laid down in Aderman Kutti v. Sayed Ali (1912) I. L. R. 37 Mad. 514. THE one with which we are concerned is the third proposition, viz. that "dealings by a de facto guardian are neither void nor voidable, but are 'suspended' until the minor on attaining majority exercises his option of either ratifying the transaction or disavowing it. " Dealing with this proposition, their Lordships, after quoting extracts from Hedaya, Fatawai Alamgiri, and Majma-ul-Anhar, observed as follows (p. 90): In their Lordships' opinion the Hanafi doctrine relating to a sale by an unauthorised person remaining dependent 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 propertyin 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 principal 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.