MONMOHINI DAS GUPTA Vs. BASANTA KUMAR DAS GUPTA

JUDGEMENT

(1.) This appeal must be dismissed. The present plaintiff, the appellant before us, claimed the disputed jote under a conveyance in her favour executed by the widow of a Muhammadan named Jahar Ali on her own behalf and as guardian of her minor son Ohad Ali. The holding had been sold by the landlord in execution of a degree for arrears of rent. The original plaintiffs, the mother and the son, brought the present suit to set aside the decree for rent and the sale held under that decree. The plaintiff having obtained the conveyance from the Widow-to which I have referred, was substituted on the record as plaintiff on the 11th December, 1916. The learned Subordinate Judge in the lower Appellate Court has held that she had no title to the share of the widow in the holding, because that share had been sold in execution of the decree for rent and there was no reason for setting aside the sale. As regards the share of the minor the learned Subordinate Judge has, as I understand his judgment, also held that the sale in execution was binding on the minor. He further went on to say, however, that in any case the widow was incompetent under the Muhammadan Law to give the present plaintiff a title to the minor's share of the holding.

(2.) There appears to be no doubt that the learned Judge's view in the latter point is correct. Reference may be made to the case of Imambandi V/s. Mustaddi 47 Ind. Cas. 513 : 45 C. 878 : 28 C.L.J. 409 : 35 M.L.J. 422 : 16 A.L.J. 800 : 24 M.L.T. 330 : 23 C.W.N. 50 : 5 P.L.W. 276 : 20 Bom.L.R. 1022 : (1919) M.W.N. 91 : 9 L.W. 548 : 45 I.A. 73 (P.C.), decided by their Lordships of the Privy Council. In the course of their judgment their Lordships say! "for the foregoing considerations, their Lordships are of opinion that under the Muhammadan Law a person who has charge of the person or property of a minor without being his legal guardian and who may, therefore, be conveniently called a de facto guardian has no power to convey to another any right or interest in immoveable property which the transferee can enforce against the infant; nor can such transferee, if let into possession of the property under such unauthorized transfer, resist an action in ejectment on behalf of the infant as a trespasser. It follows that, being himself without title, he cannot seek to recover property in the possession of another equally without title." These last words govern the present case. Whether the defendant No. 1 has or has not a good title to the land, the plaintiff, being herself without title or possession, cannot support this suit. The language of their Lordships is clear and unambiguous. In my view the judgment of the lower Appellate Court is right and must be upheld.

(3.) A preliminary objection was taken to the bearing of the appeal on the ground that the present defendant had died and that as his heirs had not been substituted in his place within the time limited by law the appeal had abated. In the view we take of the merits it is unnecessary to deal with this point.