DOOD MEHAR BIBI Vs. ASRUB ALI AND AFTABUDDIN

JUDGEMENT

(1.) It is admitted on both sides that the property in this suit belonged to two brothers, Gobardi and Aftabuddin, and that on the death of the former which took place fourteen years ago, his heirs, the plaintiffs, lived with Aftabuddin. They were minors at the time excepting plaintiff No. 1, who is the widow of Gobardi. After his brother s death Aftabuddin fold the land in question which is 2 1/2 kanis out of 12 ham s of their ijmali jote to the principal defend-, ants by a kobala (Exhibit A) dated the 5th Falgoon 1311. The sale purports to, be on Aftabuddin s own behalf upon the allegation that the land belonged to him, The reason for the sale, is stated to have, been to pay off certain creditors and the. landlord s dues.

(2.) The plaintiffs sought a declaration of title and recovery of possession with regard to 8 annas of the land in dispute. A case was set up on behalf of the purchaser from Aftabuddin that although the sale purported to be a sale of Aftabuddin s own land, yet as the sale took place and the infants benefited by the sale, it ought to be held that the plaintiffs, although then minors, were bound by the sale. So far as the widow is concerned, defence was taken that although the sale did not purport to be on her behalf, yet she ought to be held to be bound on the ground that she had acquiesced in the sale and had taken no steps to set it aside. A further ground was taken that after the sale Aftabuddin relinquished the land and, therefore, inasmuch as the plaintiffs had not paid rent after such relirquisbment, it ought to be considered that their tenancy was at an end and they were rot entitled to maintain a suit in ejectment.

(3.) As regards the first point the learned Subordinate Judge in appeal held that the Privy Council ruling in Mata Din v. Ahmad Ali 13 Ind. Cas. 676 : 16 C.W.N. 338 : 34 A. 213 : 23 M.L.J. 6 : 11 M.L.T. 145 : (1912) M.W.N. 183 : 9 A.L.J. 215 : 15 C.L.J. 270 : 14 Bom. L.R. 192 : 15 O.C. 49 : 39 I.A. 49 (P.C.) left the question oper, whether a sale by a de facto guardian, if shown to be for the benefit of the infants, was void or voidable. He followed toe ruling in Ram Charan Sanyal v. Anukul Chandra Achaiya 11 C.W.N. l60 34 C. 65 : 4 C.L.J. 678 and Hasan Ali v. Mehdi Husain 1 A. 533 : 1 Ind. Dec. (N.S.) 368 that such a sale bound the minors under the Mnbammadan Law. The matter, however, has been put at rest by the case of Imambandi v. Mutsaddi 47 Ind Cas. 513 : 23 C.W.N. 50 : 35 M.L.J. 422 : 16 A.L.J. 800 : 24 M.J.T. 330 : 28 C.L.J. 409 : 5 P.L.W. 276 : 20 Bom. L.R. 1022 : 45 I.A. 73 : (P.C.) 45 C. 878 : (1919) M.W.N. 19 : 9 L.W. 518. Their, Lordships said that there was a corflict of opinion in the different High Courts with regard to the matter, one set of decisions purported to give such dealings a qualified force the other declared them wholly void and ineffective. In the former, class of oases the main test for determining the validity of the particular transaction had been the benefit resulting from, it to the minor, in the latter the admitted absence of authority or power on the part of the guardian to alienate or to encumber the minor s property. They say, the time has now come to lay down a definite rule, if possible. They then refer to the decision of the Calcutta High Court and say that in sustaining transactions entered into by de facto guardians this Court has proceeded mainly on considerations of necessity for and benefit to the infant. The other High Courts, generally speaking, have out the Gordian knot by holding that all such dealings with a minor s property were void. They then discuss the Madras High Court case, Hyderman Kutti v. Syed Ali 15 Ind. Cas. 576 : 37 M. 514 : 12 M.L.T. 147 : (1912) M.W.N. 889 : 23 M.L.J. 244, and hold that, under the Muhammadan Law, a per. Bon who has charge of the person and 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 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 I think that that finally disposes of the first point.