NAPPALLI KANDIYILTHAMASIKKUM PUTHIYOTTIL KANHIRATAN GOVINDA KURUP Vs. CHOWAKKARAN KELOTH BEEKKU ALIAS BEEKUTTI UMMA (DEAD)

JUDGEMENT

(1.) Plaintiff is the appellant. On the strength of a lease of immoveable property (lands) granted to him by defendants 1 and 2 by means of the registered Marapat, dated 28 December, 1919 (the original of Ex. B), which was executed by the plaintiff to defendants 1 and 2, he filed the present suit to recover possession of those lands from defendants 3 and 4, who are in occupation thereof, as lessees under the tarwad of 1 defendant, under a renewed lease granted by the 14th defendant as Karnavan on 13 January, 1920, as per Ex. I. Both the Lower Courts have held that the plaintiff has not acquired a valid right to the suit property under the lease set up by him and dismissed his suit.

(2.) The 1 defendant belongs to a rich Moplah tarwad. In 1918 and 1919, the then Karnavan, Makki Keyi allotted some properties of the tarwad for the maintenance of 1 defendant (a minor) under the deeds Exs. III and IV. The suit lands are comprised in Ex. IV. There is no doubt that when the melcharth was given to the plaintiff as per Ex. B, dated 28 December, 1919, the 1 defendant who was a minor, was the sole owner thereof. The 2nd defendant is her husband. The Marupat or the lease deed (Ex. B) was executed by the plaintiff (lessee) to defendants 1 and 2, but the 2nd defendant had no right or interest in the suit property, and was not therefore competent to grant a lease of the same. The custom alleged by the plaintiff, whereby the husband of a Moplah woman has the right to manage the properties given to her for maintenance, in order to make out the validity of the lease in question, treating it as one granted by the husband (2nd defendant), has been found by the Lower Appellate Court to be unproved. I accept that finding as correct. The question therefore has to be decided on the footing that the lease in question was granted to the plaintiff by the 1 defendant (the owner of the suit property) when she was a minor. Is such a lease valid and enforceable ?

(3.) A lease of immoveable property, as defned in Section 105 of the Transfer of Property Act, is a transfer of a right to enjoy such property, made for a certain time or in perpetuity, in consideration of payment of rent in cash or kind. A lease is necessarily a transfer of an interest in immoveable property by the lessor in favour of the lessee. A minor is not competent to contract, and, under section of the Transfer of Property Act, it is only a person competent to contract and entitled to transferable property, that can transfer such property, either wholly or in part to another person. Any transfer of such an interest by the 1 defendant (a minor) by the transaction of lease relied on by the plaintiff would, therefore,, be void. A sale is a transfer of ownership in immoveable property, in exchange for a price. A mortgage is the transfer of an interest in immoveable property, in consideration of a loan, for securing the repayment of it. There is no doubt that a sale by a minor, and a mortgage by a minor, are invalid, and unenforceable. In Mahori Bibee v. Dhurmodas Ghose (1902) L.R. 30 I.A. 114 : I.L.R. 30 C. 539 (P.C.) their Lordships of the Privy Council have held, that not only is a mortgage made by a minor void, but even on a decree being given declaring the mortgage invalid, the lender was not en-titled to the repayment of the money advanced to the minor under that invalid mortgage. It is not conceivable how a lease by a minor can be valid, while a sale or a mortgage by a minor is void, if regard be had to the fact that just as in the case of sale or mortgage, there is a transfer of an interest: in immoveable property, namely, the right to enjoy such property in a lease by the lessor to the lessee.