LAWS(PVC)-1912-4-96

AYDERMAN KUTTI (SON OF THANDAN VALAPPIL EASUP); R CHIDAMBARAM PILLAIALIAS SUBBAYYAN PILLAI Vs. SYED ALI (SON OF KOTUSERI VALAPPIL KOYA) ANDANR; SKADERSA ROWTHER AND NINE ORS

Decided On April 30, 1912
AYDERMAN KUTTI (SON OF THANDAN VALAPPIL EASUP); R CHIDAMBARAM PILLAIALIAS SUBBAYYAN PILLAI Appellant
V/S
SYED ALI (SON OF KOTUSERI VALAPPIL KOYA) ANDANR; SKADERSA ROWTHER AND NINE Respondents

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 [Second] 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 in a dilapidated condition, and the mother of the minor who is the eighth defendant, was unable to execute repairs. The sale-proceeds, it is alleged, wore applied to the discharge of certain debts contracted for the marriage of a sister of the minor and for other purposes. It was to moot the expenses of this marriage that money was required and the other facts mentioned, apparently furnished the reason for electing this particular property for sale. In Original 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 (1903) I.L.R. 26 Mad. 734, Durgozi Row v. Fukeer Sahib (1907) I.L.R. 30 Mad. 197 and Abdul Khader v. Chidambaram Chettiyar (1909) I.L.R. 32 Mad. 276, 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 upbringing 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 noticed first; one of these is Kali Butt Jha v. Abdul Ali (1889) I.L.R. 16 Calc. 627 (P.C.). That was the case of a guardian and with respect to his power their Lordships of the Judicial Committee approved of the statement of the law as contained in Macnaughten 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 Macnaughten did not apply, and also on the ground that the sale was for the benefit of the minor. In Mata Din v. Sheikh Ahmad Ali (1912) M.W.N. 183 (P.C.) 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 be deal with the estate. They declared the sale to be 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 committee, Mr. Syed Ameer Ali observed with some emphasis during the argument that there was no warrant in the Muhammadan Law for sale by the mother of minor sons of immoveable 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 based on such broad and general grounds. In this Court it was hold in Pathummabi v. Vittil Ummachabi (1903) I.L.R. 26 Mad. 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 a sale for the purpose of paying ancestral debts by a co-heir in possession of all the effects of the deceased if bond fide, would be binding on the other co-heirs. The principle of this ruling has been followed in Dugrozi Row v. Faheer Sahib (1907) I.L.R. 30 Mad. 197 and Abdul Khader v. Chidambaram Chettiyar (1909) I.L.R. 32 Mad. 276. In none of these cases 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 Tati Reddi v. Yaravalli Sahib Second Appeal No. 1443 of 1907, an unreported judgment of Benson, J., and one of Rs. It was held in Aliyumma v. Kunhammed (1911) I.L.R. 34 Mad. 527 that a guardian s powers in aspect of the immoveable property of the ward are very restricted in Muhammadan Law and that 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 Judges followed the Privy Council ruling already mentioned, Kali Dutt Jha v. Abdul Ali (1889) I.L.R. 16 Calc. 627 (P.C.) and certain decisions of the Bombav 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 powers 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. In Mussamut Bukshun v. Mussamut Doolhin (1869) 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 (1885) I.L.R. 11 Calc. 417 a mortgage by a person purporting to act as 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 Bihari Biswas (1902) I.L.R. 29 Calc. 473, Rampini and Pkatt, JJ., 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 Muhamntadanlaw. In Mafazzal Hosain v. Basid Sheikh (1907) I.L.R. 34 Calc. 65 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 Muhammadan Law. Woodroffe, J., 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 Moyna Bibi v. Banku Bihar Biswas (1902) I.L.R. 29 Calc. 473 on the ground that in that case it was not shown that the transaction was for the benefit of the minor. Maclean, C.J. and Carperaz, J., in Ram Charan Sanyal v. Anukul Chandra Acharyya (1907) I.L.R. 34 Calc. 65 followed the ruling of Rampini and Woodroffe, JJ., in the last mentioned case and field 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 Moyna Bibi v. Banku Bihari Biswas (1902) I.L.R. 29 Calc. 473 they point out that the effect of that ruling is considerably modified by the ruling in Mafazzal Hosain v. Basid Sheikh (1907) I.L.R. 34 Calc. 36 and have laid down a broader proposition than what forms the basis of Rampini and Woodroffe JJ. S judgment in Mafazzal Hosain v. Basid Sheikh (1907) I.L.R. 34 Calc. 36 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 buy a minor s property from a person who has no power to deal with it, however bond 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 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.