VEMANA RAMACHANDRAYYA NAIDU Vs. ABDUL KADAR CHISTHI

JUDGEMENT

(1.) This appeal arises out of a suit on a mortgage which was tried by the learned Subordinate Judge of Nellore. The mortgage is dated 16 May, 1927 and was executed by the first defendant on behalf of himself, as duly accredited agent of his brother, Mustapha, and as the guardian of the eighth defendant, the surviving son of the executant's deceased brother,, Ahammad. The mortgagee was one V. Veerappa Naidu, the mortgage deed being for Rs. 5,172. In respect of that amount, Rs. 3,900 was to discharge a preexisting mortgage debt created by one Pacha Saheb, the father of the first defendant, and the grandfather of the eighth defendant. The first defendant was not the legal guardian of the eighth defendant but was solely a guardian who has been referred to colloquially is a " de facto guardian".

(2.) The learned Subordinate Judge in his finding expressed the view that the interest of the eighth defendant in the mortgaged property was not affected by the mortgage executed by the first defendant as de facto guardian, and so far as the eighth defendant was concerned, he was dismissed from the suit. There were other defendants and other matter arising, but in the present appeal the sole question for decision is whether the eighth defendant's share in the property, the subject of the mortgage, is affected by the deed, and whether the execution of the deed by the first defendant as de facto guardian of the eighth defendant validates the mortgage so far as the eighth defendant is concerned.

(3.) The position of a de facto guardian was examined and discussed at length by the Privy Council in Imambandi V/s. Mutsuddi (1917) 35 M.L.J. 422 : L.R. 45 I.A. 73 : I.L.R. 45 Cal. 878 (P.C.). After reviewing at length and in detail translations from original texts, their Lordships of the Privy Council summarised the position in their observations at page 903 of the Report, whereat the following appears For the foregoing considerations their Lordships are of opinion 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 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 unauthorised 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. In referring to Imambandi V/s. Mutsuddi (1917) 35 M.L.J. 422 : L.R. 45 I.A. 73 : I.L.R. 45 Cal. 878 (P.C.), the learned author, Sir Dinshaw Mullah, in his work on the "Principles of Mahomedan Law", 12 edition, observes as follows: A de facto guardian has no power to transfer any right in the immoveable property of the minor. Such a transfer is not merely voidable, but void. A contrary view regarding the effect of the acts of de facto guardians with respect to a minor's property was taken in Venkatarayudu V/s. Aiyna Khasim Saheb (1935) M.W.N. 943. There a promissory note was executed by the mother as the de facto guardian of a Muslim minor, in renewal of a previous promissory notes executed by the minor's father in renewal of earlier promissory note. It was held, by a single Judge, that the renewal by the widow was valid and binding upon the minor and upon his estate. Though that case was decided some years after Imambandi's case (1917) 35 M.L.J. 422 : L.R. 45 I.A. 73 : I.L.R. 45 Cal. 878 (P.C.) before the Judicial Committee, no reference appears to have been made to it and it was not cited.