RUGIA BEGUM Vs. IQBAL ALI KHAN

JUDGEMENT

(1.) The unsuccessful defendants are the appellants. The trial Court decreed the suit for redemption. On appeal, it was confirmed. Thus the second appeal.

(2.) The facts are not in dispute. The suit property was hypothecated on Nov. 27, 1941 equivalent to 23rd Dhai 1351 Fasli for consideration and the respondent-plaintiff purchased the hypotheca with equity of redemption on Mar. 29, 1957 from the heirs of the mortgagors under Ex.A-3 dt. Mar. 29, 1957 to which two minors were parties, represented by their mother as de facto guardian. The plaintiff, as purchaser of the property, sought to redeem the mortgage and laid the suit. The principal defence taken by the appellants is that the minors were not represented by the proper guardian. Under Mahomedan Law, mother being a de facto guardian, she is incompetent to enter into a transaction on behalf of minors. Therefore, the transaction is void, thereby the respondent-plaintiff acquired no title nor interest under Ex.A-3 to enforce the claim in the suit and the suit is not maintainable. At the resistance of this contention by the respondent, the Court below negatived it. The same contention has been reiterated by Sri Syed Sadatullah Hussaini, learned counsel for the appellants placing strong reliance on Mohd. Amin v. Vakil Ahmed AIR 1952 SC 358. The question, therefore, is whether Ex.A3 sale deed with equity of redemption of mortgage under Ex.A-1 dated November, 27, 1941 is enforceable in law and the appellants are bound thereby?

(3.) The principles of Mahomedan Law by Mulla (18th Edition) under Chapter-C, "Guardians of the Property of a Minor", S.359 postulates thus :