RENUBALA DAS Vs. MST. SALEHA KHATOON

JUDGEMENT

(1.) This is an application under Art. 227 of the Constitution of India being directed against Order No. 6 dated 5.12 96 passed by the 3rd Additional District Judge, Alipore in Civil Revision No. 341 of 1996 arising out of a proceeding under section 115Aof the Code of Civil Procedure confirming Order No. 278 dated 2.7.96 passed by the learned Munsif, 1st Additional Court, Alipore in Title Suit No. 123 of 1995. It appears that the trial Court by the impugned order has allowed an application for substitution under the provisions of Order 22 Rule 3 C P.C. The plaintiff No. 5 died intestate on Feb. 18,1996 leaving behind him his widow and the only minor daughter. In the connected application for substitution, a prayer was made at the instance of the widow of the deceased and by the minor daughter being represented by her mother. In the trial Court when the impugned order was passed, an objection was taken on the footing that the deceased person was a mohammedan by religious faith and, as such, the property is required to be governed in accordance with the personal law of the community and it has been sought to be suggested that Hauafi Law of Succession would apply in the instant case. There has been a further submission made to the effect that under the Mohammedan Law so for as a minor female person is concerned, a mother can be the guardian of the said minor upto the attainment of the age of puberty and she caD describe herself as her guardian so far as the person is concerned. It has been suggested that under the personal law a female person cannot be the guardian in respect of the property of a minor. The trial Court has held that as the mother is the guardian so far as the minor person is concerned, she has the right even to carry on with the proceeding on behalf of the minor. Here the connected suit is for recovery of possession from the tenants and it has been alleged that the same is appearing with regard to the rights of the property of a minor. The learned Munsif was confused because of her emphasis laid on the expression of the nomenclature as used in the Mohammedan Law about "de facto guardian". However, the application for substitution stood allowed and, being aggrieved by the same, a revisional application was moved. The revisional Court while disposing of the revisional application has incorporated the user of the expression of "de facto guardian" something as analogous to that of next friend as required under Order 32 Rule 1, C.P.C. It appears that , the revisional Court has gone completely wrong in making a reference to Order 32, C P. C. which has no semblance of application while dealing with an application under Order 22, C. P. C.

(2.) Now coming to the question of law involved, Mr. Mukherjee, learned Advocate on behalf of the revisionist petitioners has referred to cause 359 of Mulla's Principles of Mohammedan Law, 19th Edition and in terms of the said clause 359 there has been a serial mention of the guardian of the minor in respect of preference and the catalogue shown there indicates preferential claimants in the serial order, namely,- (1) father (2) executor appointed by the father's will; (3) grandfather : (4) the executor appointed by the will of the grandfather. A further reference was made to the Outlines of Mohammedan Law, 4ib Edition, by Asraf A. A. Fyzee. In section 34 therein, a fragmentation was made with regard to de facto guardians and legal guardians. It has been commented by the commentator in the said book that a female person has no right to deal with the property of a minor. It appears to be the well-known position of the Personal Law of the mohammedan community under the Hanafi Branch and it is needless to mention that the Shia Branch of the Mohammedan Law more stringent with regard to the rights of representation of the minor by the female persons. In support of the said proposition, Mr Mukherjee has referred to 45 Indian Appeals 79 in the case of Imambandi & Ors. Vs. Mutsaddi and Ors. wherein it has been held in no unambiguous terms that under the Mohammedan Law mother has no power as a de facto guardian of her infant children Co alienate or charge their immovable property. The aforesaid decision appears to be one of the landmark decisions a trail of which continues even upto one of the latest decisions of the Apex Court, namely, in the case M. Sidhiqui Vs. Md. K. P. Kuttl & Ors., reported in AIR 1996 SC 1003 wherein it has been held by placement of reliance on Mulla's Principles of Mohammedan Law and also with regard to 45 Indian Appeals as quoted above. There was also a reference to Tayebji its principles of mohammedan law and a reference was made to section 261 of the same It has been stated there also that a female person has no right to represent the minor with regard to minor's property and in absence of the father other legal guardians would step into the shoes and unless no legal guardian is found, then Court is to appoint a guardian. It has been held that the mother is not the guardian for alienation of the property of the minor and it can be inferred therefrom that there is no derivative representative character of the mother in respect of the properties of a minor person affiliated to Hanafi Branch of the Mohammedan Law. Accordingly, this Court cannot but hold that both the Courts below have gone wrong in their interpretation and assessment about the position of the mother representing the minor's property in term of the Hanafi Branch of Mohammedan Law and. as such, the right of jurisdiction of superintendence under Art. 227 of the Constitution is required to be invoked so that personal law is adhered to in terms of letter and spirit. However, in view of the filing of an application in the trial Court under Order 22 bv the widow of the deceased and the minor daughter, the same csnnot be taken note of as they have no locus standi to represent the minor in respect of the minor's property. In view of the misconception of law of the lawyers concerned and for ends of justice, the party is given leave to make a proper application afresh under the provisions of Order 22 in terms of the categorisation of the legal guardians of the minors as indicated in the earlier portion of the judgment in conformity with the legal principles laid down by the authorities. In presentation of the said petition for substitution, if there is any question of delay, the Court will consider it and may invoke the relevant position of the Limitation Act to condone the same for ends of justice. Accordingly, the impugned orders are set aside and the revisional application stands allowed.

(3.) Xerox certified copy, if applied for, be made available at the earliest. Revision application allowed.