BHIKAJI RAMCHANDRA SHIMPI Vs. AJAGARALLY SARAFALLY BOHORI

JUDGEMENT

(1.) This is an appeal against the decision of the First Class Subordinate Judge at Dhulia dismissing the plaintiff's suit to recover vacant possession of a land purchased by him from a Mahomedan widow and her minor daughter. The land originally belonged to one Abdul Rahiman who mortgaged it to the plaintiff and died leaving a widow Sugarabi and a minor daughter Nyamatbi. After his death the plaintiff obtained a decree on the mortgage against Sugarabi and Nyamatbi, and in execution of the decree in darkhast No. 178 of 1989 the papers were transferred to the Collector for sale of the mortgaged land. Sugarabi having refused to act as the guardian of her minor daughter Nyamatbi, the Nazir of the Court was appointed as her guardian ad litem in the darkhast proceedings. Before the sale was held by the Collector, the parties came to a compromise and Sugarabi made an application to the Court that she had agreed to sell the mortgaged land to the plaintiff (decree-holder) for Rs. 25,000 in full satisfaction of the decree, that she was willing to act as her minor daughter's guardian ad litem, that she should be appointed as such in place of the Nazir of the Court, that the arrangement was for the benefit of the minor, that permission should be granted to her under Order XXXII, Rule 7, of the Civil P. C., to effect the compromise on behalf of the minor and that the proceedings should be recalled from the Collector. The application was granted on September 22, 1941. On September 26, 1941, Sugarabi executed a sale-deed on behalf of herself and as the, guardian her minor daughter, conveying the land in suit to the plaintiff for Rs. 25,000. After the deed was registered, the plaintiff informed the Court that the decree was satisfied by the sale-deed, and on October 14, 1941, the darkhast was disposed of with a note that the decree under execution had been fully satisfied. The plaintiff then filed this suit against the defendants who were claiming to be in possession as lessees. On the pleadings twelve issues were raised in the lower Court, but the suit was dismissed on the ground that Sugarabi was neither the legal nor the certificated guardian of her minor daughter and the sale-deed passed by her was, therefore, void.

(2.) It is now urged by Mr. Coyajee for the plaintiff that the sale being voidable at the instance of the minor, it is not open to the defendants to impeach its validity and that in any case the leave granted by the executing Court under Order XXXII, Rule 7, Civil Procedure Code, was sufficient to clothe Sugarabi with power to sell the land as the guardian of her minor daughter.

(3.) It is now well settled by the decision of the Privy Council in Mata Din V/s. Ahmad Ali (1911) L.R. 39 I.A. 49 that under the Mahomedan 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 alienate the minor's immoveable property and that a Mahomedan mother is entitled to the custody of the person of her minor child but is not the natural guardian and has no higher powers to deal with her minor child's property than any outsider who happens to have charge of the minor for the time being. The leave to compromise given to Sugarabi by the executing Court and her appointment by that Court as the guardian ad litem of her minor daughter did not make her the guardian of the minor's property. The leave under Oder XXXII, Rule 7, Civil Procedure Code, merely approved of the proposed compromise as beneficial to the minor and authorised the guardian ad litem to give effect to it. If that compromise included the transfer of the minor's immoveable property, then that transfer must be affected according to law. Sugarabi had to be appointed a guardian of the minor's property under the Guardians and Wards Act before she could have any authority to deal with the minor's immoveable property. The leave granted by the executing Court under Order XXXII, Rule 7, may be sufficient to enable the District Court to sanction the sale under Section 29 of the Guardians and Wards Act after she got herself appointed as the guardian of the minor's property. Until such appointment, she, as the guardian ad litem in the execution proceedings, is in no better position than a de facto guardian for the purpose of selling the minor's immoveable property. Mr. Coyajee relies upon the ruling in Abdur v. Khandkar (1913) 35 C.L.J. 206, where a lease for a term of seven years given by the certificated guardian of a minor in accordance with a compromise in a suit entered into with the sanction of the Court was held to be valid without the sanction of the District Judge under Section 29 of the Guardians and Wards Act. But in that case the lease: was effected by a guardian who had been appointed by the District Court and had, therefore, power to deal with the minor's immoveable property. The only question there was whether after the Court held the lease to be for the benefit of the minor and gave leave to the guardian ad litem to effect it under Order XXXII, Rule 7, Civil Procedure Code, a further permission of the District Court which had appointed the mother as the guardian was required to be taken under Section 29, and it was held that as the lease had been made in accordance with the compromise and had been duly sanctioned as being for the benefit of the minor, no further sanction under Section 29 of the Guardians and Wards Act was necessary. But in the present case Sugarabi was not a certificated guardian, and, therefore, had no power whatever to deal with her minor daughter's property. Had she been appointed as a guardian of the property of her minor daughter by the District Court under the Guardians and Wards Act, then it would not have been necessary for her to take a further permission to carry out the terms of the compromise under Section 29 of that Act. As she had no such power to deal with her daughter's property, the sate cannot be binding on the minor.