Haji Abdulla Haji Umar vs Daud Mahomed and Another

Baxi, J.—Tins appeal has been preferred against the decree of the Civil Judge, Sr. Dn., Junagadh, holding that a certain mortgage executed by Respondent 1 on his behalf and as guardian of Respondent 2 was wholly ineffective as regards the interest of Respondent 2 and granting a decree for the realization of the Appellant''s dues by the sale of Respondent is interest only in the mortgaged property.

The Respondents who are Mohammedans were the owners of moiety in two Immovable properties in Junagadh bearing Nos. 579/73 and 473/ 75 jointly with their cousins who sold their interests in these properties to the Respondents for Rs. 78(sic)- by a registered sale deed dated 17-7-1946. Respondent No. 2 was a minor on this date and therefore Respondent 1 acted as his guardian in this transaction. In order to raise the amount to be paid to the vendors Respondent 1 acting for himself and as guardian of the minor Respondent 2 borrowed Rs. 8000/ - from the Appellant and by a registered mortgage dated 18-7-1946 mortgaged with possession the two properties mentioned above. A shop bearing No. 44878 was also mortgaged, to the Appellant by the same mortgage by way of a simple mortgage. The consideration for the mortgage was made up of Rs. 7000/ - paid to the vendors and Rs. 1000/ - paid to Respondent 1. Interest was agreed to be paid at the rate of 6 annas per cent per month on the principal. The Appellant deducted RS. 360/- from the consideration of Rs. 8000/ - representing advance payment of interest for one year. The mortgagors undertook to redeem the mortgage within three years but if they redeemed the mortgage within one year then the Appellant was to retain the entire amount of interest for 12 months paid in advance. If the mortgage was redeemed after one year the mortgagee was entitled to receive the actual interest accrued for the period of the mortgage exceeding one year. As the mortgagors did not redeem the mortgage at the end of the three years, the Appellant filed the present suit in the Court of the Civil Judge, Sr. Dn., Junagadh praying for recovery of Rs. 8082/ - representing Rs. 8000/ - principal and Rs. 82/ - interest by the sale of the mortgaged property. Respondent 2 had attained majority on the date of the suit. The Respondents did not contest the suit which was heard ex parte by the learned Civil Judge. He held that on the date of the mortgage Respondent 2 was a minor and as Respondent 1 was not his legal guardian under the Mahommedan law, the mortgage of the minor''s interest by him in favour or the Appellant was void and of no effect and therefore dismissed the suit as against Respondent 2''s interest in the mortgaged property and passed a decree against the interest of Respondent 1 only unless the decretal amount was paid on or before 14-3-1851. As Rs. 360/- representing the first year''s interest had been deducted by the Appellant in advance from the principal sum, the learned Civil Judge did not award interest on this sum. The Appellant has appealed against this decree.

In order to appreciate the point involved in the appeal, it is necessary to reiterate that before the purchase of the half-share in the properties Nos. 570/73 and 473/75 from his cousins, the minor Respondent 2 owned 1/4 share in them and Respondent 1 was entitled to the other 1/4 share and they were entitled to a moiety in the property between them, The other moiety belonged to their cousins. After acquisition of their cousin''s interest Respondent 2''s interest was enlarged by 1/4 share. This enlargement of interest was brought about by the mortgage which the Appellant seeks to enforce. But for the mortgage the Respondent''s interest would not have been enlarged.

Now the learned Civil Judge rejected the applicant''s claim to the decree against the minor''s interest on the ground that under the Mohammedan law a de facto guardian has no power to transfer any right or interest in the Immovable property of the minor. Such a transaction is not merely voidable but void. This proposition is enunciated in Section 364 Mulla''s Mohammedan Law, 13th Edn. p. 303. He also relied upon the statement of law by the learned author that a sale or mortgage or any other transfer by the mother is wholly void and the same remarks apply to a brother, uncle and other relations. The leading case on this point is -- Imambandi v. Haji-Mutsaddi 45 Ind. App. 73: 45 Cal. 878 (P.C.). The rule laid down in this case has been summarised by Mulla at page 303 of his Mohammedan Law as follow:

As stated by their Lordships in -- ''Imambandi v. Mutsaddi'', which is the leading case on the subject the mother has no larger powers to deal with her minor child''s property than any outsider * * * * who happens to be in charge of. the property.

-- Imambandi''s case has been explained and distinguished in -- Abdul Hakim Vs. Jan Mohammad and Others, where a minor sought to nullify an exchange of Immovable property made on his behalf by his de facto guardian. One of the grounds of distinction was that in -- ''Imambandi''s case'', the property the sale of which was challenged was descended from the father, Bind Basni Prasad J. in distinguishing'' the Privy Council case observed as follows (249):

It was also hold in that case that under the Mohammedan 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 Anr. any right or interest in Immovable 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. These observations, however, must be interpreted in the light of the, facts of the case. It will be seen that in all the three cases referred to above the property in dispute was one which the minor had inherited from his father. In the present case, however, the property is not of this character. It was acquired by the de facto guardian, Abdul Jail, for the minor. Their Lordships of the Judicial Committee quoted the following from the Hidaya in giving reasons for restrictions on the power of the guardians to alienate Immovable property of the minors:

The ground of this (the difference in the power of dealing with the two kinds of property) is that the sale of moveable property is a species of conservation, as articles of that description are liable to decay, and the price is much more easily preserved than the article itself. With respect, on the contrary, to Immovable Property, it is in a state of conservation in its own nature hence it is unlawful to sell it unless, however, it be evident that it will otherwise perish, or be lost, in which case the sale of it is allowed.

It is thus evident that the real reason for imposing restrictions on the guardians'' power of alienation of Immovable property is to conserve it.

In this case there has been an enlargement of the minor''s Respondent 2''s interest in the properties which he could not have got but for the mortgage and the enlargement has been effected by Respondent 1. Therefore so far as the mortgage extends over the minor''s share acquired by the purchase, this case would be covered by the principle of the -- ''Allahabad case'', -- Abdul Hakim Vs. Jan Mohammad and Others, and such share would be liable for the mortgage in favour of the Appellant. The interest which the minor originally possessed is in no way diminished thereby and the principle of conservation of the minor''s interest upon which -- ''Imambandi''s, case'', ( 45 Ind. App. 73 P.C.) was decided is not affected. I therefore hold that the Respondent 2''s interest in the mortgaged properties Nos. 579/73 and 437/75 which was acquired for him from his cousins under the registered sale deed dated 17-7-1946 is liable to satisfy the mortgage in favour of the Appellant. The rest of the minor Respondent 2''s interest in these properties and in the shop No. 448/76 is not affected by the mortgage nor is Respondent 2 otherwise liable for the amount due to the Appellant under the mortgage.

The next contention on behalf of the Appellant was that the learned Civil Judge should have allowed interest on Rs. 360/ - which was deducted by the Plaintiff from the principal as advance payment of interest. The learned Civil Judge seems to think that although the mortgage was expressed to be for a consideration of Rs. 3000/ - the amount actually advanced was Rs. 7640/ - because Rs. 360/ - were deducted by the Appellant from the principal sum and therefore he disallowed interest on this sum. This conclusion does not appeal to us. The principal secured by the mortgage was Rs. 8000/ - and Rs. 360/ - which were deducted by the Appellant merely represented interest on this sum for one year. It is therefore not correct to say that the Appellant advanced only Rs. 7640/ -. He is entitled to interest on the whole sum of Rs. 8000/ - as claimed by him.

The appeal is partially allowed. The Civil Judge''s decree is varied and there will be a decree for Rs. 8082/ - in favour of the Appellant with interest on Rs. 8000/ - at the rate of C annas per cent from the date of the suit till 14-3-1951 and further interest at the same rate from 15-3-1951 till realisation. The Appellant shall realise the decretal amount by the sale of interest of Respondent 2 in the properties purchased under the sale deed dated 17-7-1946. Subject to this variation, the decree of the learned Civil Judge is confirmed. The Appellant Shall bear his own costs of the appeal.

Shah, C.J.

I agree.