THANDAN VALAPPIL EASUF S SON, HYDERMAN KUTTI; CHIDAMBARAM PILLAY ALIAS SUBBAYAN PILLAY Vs. KOTUSERI VALAPPIL KOYA S SON, SYED ALI AND ANR; KADERSA ROWTHER

JUDGEMENT

(1.) In both these appeals one common question arises, whether the sale of a minor s property by his mother acting as de facto guardian is valid under the Muhammadan Law, and if so, under what conditions. In one case, Appeal No. 1416, the deed of sale alleges that the shop which was sold had been vacant as the Municipality prohibited the selling of fish and flesh in that shop, that it was vi a dilapidated condition, and the mother of the minor, who is the 8th defendant, was unable to execute repairs. The sale-proceeds, it is alleged, were applied to the discharge of certain debts contracted for the marriage of a sister of the minor and for other purposes. It was to meet the expenses of this marriage that money was required and the other facts mentioned apparently furnished the reason for selecting this particular property for sale. In Suit No. 4 of 1909, which has given rise to Second Appeal No. 1639 of 1910, the allegation in the plaint is that the minor s mother, who was managing the family affairs and maintained the children, utilised the money obtained by sale of certain mortgage rights belonging to the minor for the discharge of proper family debts and for other family necessity. The Court of first instance and the Appellate Court, relying on the authority of Pathummabi v. Vittil Ummachabi 26 M. 734; Durgozi Row v. Fakeer Sahib 30 M. 197 : 1 M.L.T. 433 : 17 M.L.J. 9 and Abdul Khadar v. Chidambaram Chetticir 32 M. 276 : 3 Ind. Cas. 876 : 5 M.L.T. 201 have held in both the suits that the sales, even if the allegations as to the purpose be true, would not be binding on the minor in Muhammadan Law.

(2.) The decisions of the Courts on the question how far the mother or other near relative of a minor, who is not a guardian of the minor according to Muhammadan Law with respect to his property but has the custody and up-bringing of the minor, is authorised to alienate the minor s property are more or less conflicting. There are two decisions of the Privy Council bearing on the question which must be noted first; one of these is reported as Kali Dutt Jha v. Abdul Ali 16 C. 627 : 17 I.A. 96. That was the case of a guardian, and, with respect to his power, their Lordships of the Judicial Committee approved of the settlement of the law as contained in Macnaghten s Principles of Muhammadan Law, Chapter VIII, Clause 14, but they upheld the transaction in question in that case on the ground that there was dispute as to the title of the minor to the property and, therefore, the rule laid down in Macnaghten did not apply, and also on the ground that the sale was for the benefit of the minor. In Mata Bin v. Sheikh Ahmad Ali 16 C.W.N. 338 : 11 M.L.T. 145 : 9 A.L.J. 215 : 15 C.L.J. 270 : (1912) 1 M.W.N. 183 : 13 Ind. Cas. 976 : 14 Bow. L. 192 : 15 O.C. 49 : 34 A. 213 : 23 M.L.J. 6, the sale was effected by the minor s mother who had custody of the minor s person and was in possession of his property, in order to pay certain debts binding on the minor and their Lordships held that a person, by de facto guardianship, may assume important responsibilities towards the minor though he cannot clothe himself with legal power to deal with the estate. They declared the sale not binding although it was made for the payment of an ancestral debt as it was not made of necessity, nor was beneficial to the minor inasmuch as the facts of the case showed that the sale of the property was unnecessary. It is not clear what their Lordships decision would have been if the sale was made of necessity or was for the benefit of the minor." Another question was raised before the Judicial Committee in that case, whether a sale under the circumstances found there would be void or voidable. Their Lordships refrained from deciding that question. It should also be noted that one of the members of the Commit-tae, Mr. Syed Ameer Ali, observed with some emphasis during the argument that there was no warrant in the Mohammadan Law for sale by the mother of her minor sons im-moveable property, even for necessity, but though much weight must, of course, be attached to this observation, it cannot be said that the decision of their Lordships was baaed on such broad and general grounds. In this Court it was held, in Pathummabi v. Vittil Ummachabi 26 M. 734 that the principles of Hindu Law relating to alienation by a Hindu widow are not applicable to alienations by the mother of a Muhammadan minor, although the sale for the purpose of paying ancestral debts by a co-heir in possession of all the effect of the deceased, if bona fide, would be binding on the other co-heirs. The principle of this ruling has been followed in Durgozi Row v. Fakeer Sahib 30 M. 197 : 1 M.L.T. 433 : 17 M.L.J. 9; Abdul Khadar v. Chidambarasam Chettiar 32 M. 276 : 3 Ind. Cas. 876 : 5 M.L.T. 201. In none of these oases was any definite opinion expressed on the general question, how far an alienation by a de facto guardian which -is made for necessity or for the benefit of the minor is valid. Nor was this question decided in Second Appeal No. 1443 of 1907, an unreported judgment of Mr. Justice Benson and one of us. It was held in Thattoli Kothilan Aliyumma v. Kunhammad 34 M. 527 : 8 Ind. Cas. 1093 : 20 M.L.J. 948 : 9 M.L.T. 100 that a guardian s powers in respect of the immoveable property of the ward are very restricted in Muhammadan Law and urgent necessity or clear benefit to the ward must be shown before an alienation by the guardian could be upheld. In laying down this proposition, the learned Judge followed the Privy Council ruling already mentioned Kali Dutt Jha v. Abdul Ali 16 C. 627 : 17 I.A. 96 and certain decisions of the Bombay and Calcutta High Courts.

(3.) In the Calcutta High Court the law seems to be in a somewhat uncertain state. The earlier decisions confined within very narrow limits the power of the de facto or de jure guardian in dealing with a Muhammadan minor s property, while in more recent decisions this view has undergone considerable modification. It Musamwat Bukshun v. Musammnt Doolhin 12 W.R. 337 a sale by a guardian of a minor s property was held not to be permitted by the Muhammadan Law except for urgent necessity. In Bhutnath Dey v. Ahmed Hosain 11 C. 417 a mortgage by a person purporting to act as a guardian was held to be void as it was not shown that the money raised by the mortgage and utilised for paying arrears of rent could not have been raised otherwise than by mortgaging the minor s property. Similarly, in Moyna Bibi v. Banku Bihar 29 C. 473 : 6 C.W.N. 667 Justices Rampini and Brett set aside a sale by a de facto guardian because such a person has no authority to deal with the minor s estate, doubting whether even if the sale was for the manifest advantage of the minor it, could be upheld under the Muhammadan Law. In Mafazzal Hosain v. Basid Sheikh 34 C. 36, 4 C.L.J. 485 : 11 C.W.N. 71 however, Rampini and Woodroffe, JJ., decided that a sale for urgent necessity in order to pay the debts due by the deceased and for the maintenance of the minor was valid in Mu-hamraadan Law. Mr. Justice Woodroffe was inclined to place the validity of such a transaction also on grounds of justice, equity and good conscience inasmuch as it was not made out that it was prohibited by Muhammadan Law. It should be noted that the learned Judges distinguished the decision in Moyna Bibi v. Banku Bihar 29 C. 473 : 6 C.W.N. 667 on the ground that in that case it was not shown that the transaction was for the benefit of the minor. Chief Justice Maclean and Mr. Justice Caspersz, in a case reported as Ram Charan Sanyal v. Anukul Chandra Acharyya 34 C. 65 : 11 C.W.N. 160, 4 C.L.J. 578 followed the ruling of Rampini and Woodroffe, JJ.,in the last mentioned case and held that a sale by the mother as de facto guardian of her minor son is good and valid if it is found to have been made bona fide for the benefit of the minor. Referring to the case in Moyna Bibi v. Banku Bihar 29 C. 473 : 6 C.W.N. 667 they point out that the effect of that ruling is considerably modified by the ruling in Mofazzal Hosain v. Basid Sheikh 34 C. 36, 4 C.L.J. 485 : 11 C.W.N. 71. In fact, however, they have laid down a broader proposition than what forms the basis of Rampini and Woodrofe, JJ. s judgment in Mofazzal Hosain v. Basid Sheikh 34 C. 36, 4 C.L.J. 485 : 11 C.W.N. 71 placing the ruling on general grounds of justice, equity and good conscience. But, with all deference to the learned Judges, there can be no doubt that the question must be determined in accordance with the provisions of Muhammadan Law. Moreover, it is difficult to see how a man who chooses to bay a minor s property from a person who has no power to deal with it, however bona fide his action may have been, can invoke any principles of justice and good conscience to support the transaction itself, though, no doubt, such considerations may be a good ground for the Court refusing to render any help to the minor when he seeks to recover the property except on the condition of his restituting whatever benefit he has derived from the transaction. The other principle indicated in the decision of Rampini and Woodroffe, JJ. and in other rulings, viz., that in Muhammadan Law urgent necessity and benefit of the minor is a justifying cause of such a transaction, though the person who acted on behalf of the minor had no legal authority of a guardian, seems to be a more intelligible ground and requires careful consideration.