Basha alias Abdul Rahim and another vs Muthan and others

Ramaswami, J.—This is an appeal against the decree and judgment of the learned Subordinate Judge of Salem in O. S. No. 153 of 1951. The plaintiffs are the children of one Abdul Azeez Sahib by his first wife called Rahamat Khatu Ammal. Defendants 5 and 6 are the elder sisters of the plaintiffs. Dining the lifetime of this Rahamat Khatu Ammal, the suit site was purchased in her name from two previous owners in 1930 and 1931. It is the case for these plaintiffs that the purchases were made with the funds of their mother and two houses were also constructed on the site purchased with her fund. Rahamat Khatu, her husband and their children are said to have been living in one house and the other house is said to have been let out. This Rahamat Khatu died sometime between 1937 and 1939 and we do not know the exact date of her death. On the death of Rahamat Khatu, Abdul Azeez married a second wife. In 1942 this Abdul Azeez sold the suit properties acting for himself and as guardian of the plaintiffs to defendants 1 to 4 for Rs. 5000. The step-mother of the plaintiffs joined in the execution of the sale deed. In 1951 this suit has been filed by the plaintiffs impleading their elder sisters as defendants 5 and 6 since they refused to join in the institution of the suit, on the ground that they asked defendants 1 to 4 to give a share in the properties sold by Abdul Azeez and purchased by them, for the reliefs of partition, possession and mesne profits. Defendants 5 and 6 as might be expected did not enter appearance because Abdul Azeez had obtained the consent of these two grown up daughters to the alienation made in favour of defendants 1 to 4 under Ex. B. 5 and which they have also attested.

Defendants 1 to 4 contended that the suit site was purchased by Abdul Azeez benami in the name of Rahamat Khatu with his own funds and the constructions thereon were put up by Abdul Azeez with his own funds. They further contended that the sale was effected for purposes binding on the plaintiffs.

The learned Subordinate Judge came to the conclusion that the purchase of the suit site and the construction thereon were made with the funds of Abdul Azeez examined as P. W. 1 and that the sale deeds were taken in the name of Rahamat Khatu and secondly, that if it were held that the suit properties were the properties of Rahamat Khatu the alienation in favour of defendants 1 to 4 could not be justified except on the ground that the property was sold for double its value and therefore would be binding upon the plaintiffs. In the result, the learned Subordinate Judge dismissed the suit with costs and made the court-fee payable on the plaint recoverable from the plaintiffs. The defeated plaintiffs have appeared in the pauper form.

In appeal I am of the opinion that the purchase of the site and the constructions put up thereon and which have now been greatly improved also by defendants 1 to 4 were with the joint funds of Rahamat Khatu Ammal and Abdul Azeez and that the alienation in favour of defendants 1 to 4 would not be binding on the shares of the plaintiffs, even though the sale was for double the value of the property. Here are my reasons.

(Discussion of facts omitted as unnecessary for this report)

. . .

Under the Muslim law the father is the first and primary natural guardian. The Hanafi texts distinguish the powers of the father from that of any other guardian and sub-divide the father''s according to their judgment. (A. A. Fyzee Outlines of Mohammadan law, 2nd Edn. p. 174). The father has the right of management of the minor''s property in the first instance and he can also appoint executors by will and delegate to them the task of preservation and protection of the minor''s property; Rani Euzur v. De Gouda AIR 1941 Oudh. 529. The father or the executor is the natural guardian of the child and not its mother. Nawab Jan v. Safir Rahiman 58 I.C. 882, Imambandi v. Mutsadhi 45 I.A. 73 at pp. 83-93, Siddiq v. Hizamuddin 54 All. 128, Hodish v. Baghmullah 38 I.C. 787, Nasir Khan v. Ganesh 1926 All. 687, Debiram v. Maheswari Ali 97 1.C. 561.

In regard to these de jure or legal guardian, viz., the father and others with whom we are not concerned here, as regards immoveable property they have no power to sell except in the following case:

(i) Where double the price of the property can be obtained by him,

(ii) Where the minor has no other means of livelihood and the sale is absolutely necessary for his maintenance, and the minor has no other property. Asafadullah v. Ram Ratan .1940 All 74.

(iii) Where there are debts of the deceased, and the minor has no means of paying them.

(iv) Where there are legacies to be paid, and there arc no other means of paying them.

(v) Where the expenses exceed the value of the property.

(vi) Where the property in falling into decay.

(vii) When the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution, Imam Bandi v. Mutsaddi 45 I.A. 73 at pp. 83-93, Hurbi v. Byamji 20 Bom. 116, Kasi Dutt v. Abdul Ali 16 I.A. 95, Thotton v. Kunhammad 20 M.L.J. 946,

In Baillie, (Baillie, Nail BE. Digest of Muhammadan Law. Part first, Hanafi law, 2nd revised Edn. London, 1875), 676, wherein the original Arabic texts had been examined, it would appear that according to authorities the executor (or guardian) has power to sell moveable property of a minor, but that according to "the moderns" he can only sell the immoveable property.

if the minor hag occasion for the price of it, or the purchaser is eager to obtain it by giving double its value, or the sale is otherwise for the minor''s advantage, as, for instance, when the Kharaj (land tax) and expenses exceed its income; or the property, being shops or a mansion, is falling into decay.

These texts have now been classified under seven circumstances in Macneghten (Macnaghten WH.). Principles and Precedents of Mohummudan Law, Calcutta, 1825, A work of great authority, page 64, and set out above and which may justify a sale.

But as pointed out in Wilson''s Anglo Mahammadan Law, 5th Edn., page 192

The British Courts have so far been content to lay down broadly, that, in order to authorise a sale by the guardian of a Muhammadan minor, there must be an absolute necessity for the sale, or else it must be for the benefit of the minor. (Rurbai, (1895) 20 Bom. 116) at page 121. That was, as it happened, a case of mortgage, and the Court pointed out that the Muhammadan Law makes no provision for mortgages, such transactions being, owing to the payment of interest, unlawful, but held that, as mortgages do now exist among Muhammadans, they must be dealt with on the same principle as sales.

The whole law of guardians and their powers as regards dispositions of property under Muhammadan Law was reviewed by the Privy Council in Imambandi v. Mutsaddi (3). In particular their Lordships laid emphasis on the sharp distinction which Muhammadan Law recognises, in dealing with the powers of guardians between moveable and immoveable property. They disapproved of the Madras ruling in Ayderman Kutti v. Syed Ali 37 Mad. 514.

All the standard text-books on Muhammadan law-see Babu Ram Verma Mahomedan Law, 2nd Edn. p. 219-emphasis that a legal guardian cannot mortgage or sell immoveable property of a minor unless it is a case of absolute necessity and in other cases of lease if it be for the benefit of the minor. Mohan Lal v. Md. Adil 1926 Oudh.88, Yeajuddin v Rupnanjari 1936 Cal. 326; Abbas Hussain v. Kiran 1942 Nag. 12; Asfuddulha v. Ramratnam 1940 All. 74; Zeebunnissa v. Danaghar 1936 Mad. 564; Chamkandi, In re 45 I. A. 73; Eja Hussain, In re 59 I. A. 92; Hurbai, In re 20 Bom. 116; Bhutnal v. Ahamad 11 Cal. 417; Alyumma, In re 34 Mad. 527; Jaffer Ali, In re 1928 P. C. 135; and Mirsarwarjains Case 39 I. A. 1=39 Cal. 232, whose ratio decidendi has been held to be applicable to a case of alienation also.

The net result of this analysis is that firstly, the alienation by a legal guardian must be for absolute necessity binding on the minor ward; and secondly, the alienation must fall under one or more of the seven conditions set out above. To give an illustration, the mere fact that the sate of the property of a minor can fetch twice its original value would not justify the sale because the sale itself can only be made when there is absolute necessity to alienate the minor''s property. To hold otherwise would completely nullify the liberal protection even to the interest of minor and there can be no limit to alienation by an unscrupulous legal guardian so long as he takes care to see that the original value and the rule value are in the ratio of 1 : 2 and which when prices have risen and the rupee value has gone down would sanctify practically all alienations ? Therefore to use the language of the logicians necessity should be cause and the seven circumstances will be the condition of the alienation. This is the deduction made in Tyabji''s Mahomedan Law on a consideration of the P. C. decisions at pages 300-302 (3rd Edn.).

Bearing these principles in mind, it we examine the facts of this case, we find that the sale of the minor plaintiffs'' share in the suit properties was not for absolute necessity though the sale might have fetched double its original value.

On that conclusion we have now to find out the share of the plaintiffs and the reliefs to which they are entitled. So far as the plaintiffs'' mother''s share was concerned, in the absence of other circumstances, it would be one-half in the entire property, In that one-half the plaintiffs'' share is 15/28. In other words, the minor plaintiffs can get 15/56 share in the entire property. But as it is not capable of such division and these plaintiffs who are paupers cannot also purchase the other shares including the extension improvements claimed at Rs. 14000, the proper course would be to give them the money value of their shares. The share of the plaintiff''s mother in the sale price would be Rs. 2500 and out of that Rs. 2500 the plaintiffs would get a 15/28 share. To this will have to be added the interest from the date of sale. Instead of making meticulous calculation and having regard to the equities in favour of both the parties (including share of the mortgage amount payable of the plaintiff) a sum of Rs. 1400 can legitimately be fixed as due to the plaintiffs in respect of their share, in full quit. I therefore set aside the decree and judgment of the learned Subordinate Judge and find the issues to the above extent in favour of the plaintiffs and grant a decree for a sum of Rs. 1400 as representing their 15/56 share in the entire suit property, payable by defendants 1 to 4. This decree amount will be charged on the plaint schedule property. The court-fee due to the Government on the plaint and the memorandum of appeal on this sum of Rs. 1400 will be recoverable from defendants. In regard to the balance of the court-fee, it will be recoverable from the plaintiffs. In regard to costs of the action, the parties will bear their own costs in both the Courts.