Ismail Pilla Muhammad Haneefa vs Muhammad Ibrahim Pilla Thajuddeen and Others

These are appeals by Defendant 1 from the preliminary and final decrees of the Temporary Munsiff of Nedumaogad in O. S. NO. 446 Of 1118. A. S NO. 173 of 1124 is the appeal from the preliminary decree and A. S. No. 106 of 1124 is the appeal from the final decree.

One Neeran Pillai Mohammad Ibrahim Pillai died on 20-9-1114 leaving a widow Defendant 2, a major daughter Defendant 3 and four minor children who are the Plaintiffs in this case. Neeran Pillai Mohammad Ibrahim Pillai had executed a hypothecation bond in favour of the Sirbar towards an agricultural loan of Rs. 600. After the death of Mteran Pillai, the Sirfcar took out proceedings under the Revenue Recovery Act for the recovery for the balance amount due under the hypothecation. Reciting payment of the amount due to the Sirkar, a sale deed in respect of the plaint schedule properties, was executed on 7-10-1115 by the mother Defendant 2 in her own right and as guardian of the Plaintiffs who were all at the time minor?, in conjunction with her major daughter Defendant 3, in favour of Defendant 1 for Rs. 426. The Plaintiffs in this suit seek to set aside the sale-deed to the extent of their 35/48th share over the properties and to recover the same with past and future mesne profits from Defendant 1.

Defendant 1 contended that the sale is valid and not liable to be set aside. The trial Court gave a preliminary decree to the Plaintiffs setting aside the sale deed Ex. C to the extent of the Plaintiffs'' share and directing recovery of possession of their share on a division of the properties by metes and bounds on payment to Defendant 1 the amount he paid to the Sirkar towards discharge of the hypothecation bond in their favour. In pursuance of this preliminary decree a final decree was also passed.

The main questions that arise for decision in these appeals are whether the mother''s dealing with her minor children''s properties, under Ex C, is binding on the infants and whether the alienation is liable to be set aside as prayed for by them. Under the Muhammadan law the first and primary natural guardian of the minor is the father. When he is dead, the guardianship devolves upon his executor.'' If the father has died without appointing an executor, then the father''s father if he is alive becomes the guardian. If he too is dead, then the guardianship devolves upon the executor of the father''s father. Therefore, the two near relations that are the natural guardians of the minor children of a Muhammadan are the father and the father''s father. It is also clear that under Muhammadan law the mother is only entitled to the custody of the persons of her minor children up to a certain age according to the sex of the children. Therefore, under the strict rules of the Muhammadan law, the mother is not clothed with any authority to sell the immovable properties of her minor children, There was some conflict in the decisions of the High Courts in India with regard to the question of the mother''s power to deal with her minor children''s immovable properties. But the question has been set at rest by the decision of the Privy Council in Imambandi v. Haji Mutsaddi 45 Cal. 878 : AIR 1919 P.C. 11 After reviewing the law on the subject, their Lordships have come to the conclusion that:

Under the Muhammadan law a person who has charge of the person or property of a minor without being his legal guardian, and wbomay, therefore, be conveniently called a ''de facto guardian '' has no power to convey to another 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 enjectment on behalf of the infant as a trespasser.

The High Court of Travancore has till recently taken the same view. The question came directly for consideration in the case reported in 18 T. L. J. 1813. At p. 1317 of the report their Lordships say:

It is clear law that among Mahomedans an alienation of immovable property belonging to a minor by a person other than his legal guardian, either natural, testamentary pr appointed is void and not binding on the minor. The fact that the alienation in question has been made by the minor''s mother could not affect the position.

The question again came up for consideration in the case reported in 23 T. L. J. 985. Following the prior decisions based on the ruling in Imambwdi v. Haji Mutsaddi 45 Cal. 878 : AIR 1919 P.C. 11, their Lordships have held that:

the law is well settled now that under Muhammadan law, the mother is entitled only to the cm tody oil the person of her minor child up to a certain age, according to the sex of the child, that she is not the ch Id''s natural guardian and that she has no power, ae a de facto guardian to convey to another, any right or interest in immovable property which the transferee can enforce against the infant.

Judged by the above principles, there can be no doubt that the alienation in question in the present case is liable to be set aside as prayed for by the Plaintiffs.

However, a note different from the earlier decisions was struck in the Full Bench decision in Ahammathukunju Musahar v. Pathumma Kunju 1945 T.L.R. 491. Reliance is placed on this decision by the learned Advocate for the Appellants. In this case, their Lord ships Krishnaswamy Iyer, C.J. and Abraham, J. - his Lordship Sank arasubba Iyer J. dissenting�have drawn a distinction between an act of alienation as such and an act of administration. Their Lordships think that where a de facto guardian alienates the property of the deceased for the purpose of discharging his debts such alienations have to be viewed as acts of administration of the estate of the deceased as according to their Lordships the estate of the deceased vests in his heirs at law who are sui juris at the time for the purpose of administration. It is, therefore, contended for the Appellants that inasmuch as Ex. C was executed for discharging the debt due to the Sirkar for which proceedings under the Revenue Recovery Act were taken out by them, the act of the de facto guardian is only an act of administration and that therefore, the alienation is valid and binding on the minora.

It is, however, argued by the learned Advocate for the Respondent that if the heirs of the deceased who are sui juris are declared to be competent to administer the estate vested in them and the minor heira in specific shares it is in effect permitting the application of the rule of representation which is unknown to Muhammadan law, that the theory of the right of administration of the estate of the deceased as propounded in 1945 T. L. R. 491 entails serious inroads into the well established principles of Muhammadan law and that therefore the decision requires reconsideration. But we do not think that even viewed as an act of administration EX. C can be held to be valid. Hence the position canvassed by the learned Advocate for the Respondent does not call for consideration in this case.

Their Lordships observe in the 1945 T. L. R. oase cited above at page 511 :

Chat even in soaking to set aside an alienation by way of ad ministration the question to consider would be was the alienation bona fide and reasonable having reference to all the circumstances of the estate of the deceased.

In this case the alienation could not be said to be bona fide or reasonable. The property that was alienated under Ex. C sale deed is 11 acres and S5 cents in extent. It is seen that the money borrowed from the Sirkar under the agricultural loan was for the purpose of improving the identical propetty. The commissioner''s report Ex. K indicates that there are a large number of cocoanut and arecanut trees and popper vines planted in the property before the sale deed in favour of Defendant 1. There can. therefore, be little doubt that the money borrowed from the Sirkar has been utilised for improving the property. Having thus invested the money borrowed, in the property itself, its original value must naturally have gone considerably up. Yet what we see is that the property was sold under Ex. c for Rs. 425 an amount less than the origi. nal agricultural loan. As the learned Munsiff says the value of the property if it is worked out even at one rupee per cent, will be more than us. 1100. We feel no doubt that with the improvements that were effected in the property the price per cent, at the time of the sale would have been far in excess of Re. 1.

There is yet another circumstance disclosed in this case which would show that even Defendant 1 has felt that the transaction was not fair. It is admitted in para. 24 of Defendant i''a written statement that he has executed a sale deed without receiving any consideration for 3 acres of the plaint schedule properties in favour of the Plaintiffs and their mother.

No doubt he has his own explanations to offer that by the pressure of his father he was compelled to execute the document and that possession of the property was not handed over as he came to know that there are prior encumbranoes over the property. But taking his statement at its best, why should his father persuade him to reconvey without any consideration a portion of the property to the widow and the minor children and why should he allow himself to be persuaded to do it. The fact, it seems to us, is that the father and the son were alive to the unconscionable nature of the transaction and wanted to do some recompense. In the circumstances of this case, we are inclined to infer that what really happened was that Defendant 1 took advantage of the helplessness of the widow and her children and wanted to knock off a very large extent of the property of the deceased under the guise of helping them to discharge the debt due to Government. We are, therefore, unable to think that the transaction evidenced by Ex. c was actuated by good faith or that it was reasonable.

We think that viewed from any standpoint, Ex. c is not valid and binding on the Plaintiffs or their share of the plaint properties and that it is liable to be set aside. Of course, Defendant 1 will get a charge on the Plaintiffs* share of the properties to the extent of Rs. 386-cha 12 cash 6 being the Plaintiffs'' share of the debt discharged by Defendant 1. We agree with the finding of the learned Munsiff in his priliminary Judgment. We confirm the preliminary decree and dismiss A. S. No. 173 of 1124 with costs.

In A. S. NO. 106 of 1124 two points were urged before us by the learned Advocate for the Appellants, one relating to the value of improvements and the other in regard to the question of mesne profits.

We have gone carefully through Ex. 15, report of the commissioner. We think that the valuation is proper and does not call for any interference. We therefore confirm the findings of the learned Munsiff in respect of the value of improvements.

Regarding the question of mesne profits, it is contended that the Plaintiffs can claim any mesne profits for their share of the property only from the date on which they deposit in Court the amount of Rs. 386.chs 12 cash 6 made a charge of under the preliminary decree Wo think that there is much force in this contention, The claim for mesne profits for the period before the deposit of the amount due to Defendant 1 is not well founded. From the records it does not appear that the Plaintiffs have deposited any amounts in Court. We hold that the Plaintiffs are not entitled to any mesne profits past or future till the date of deposit of Rs. 386 chs 12 cash 6 decreed to be paid to Defendant 1. Plaintiffs will, however, get future mesne profits at the rate of Rs. 52 chs 20-cash 8 from the date of deposit of the abovesaid sum of Rs. 386-chs 12-cash 6 until delivery of possession to the Plaintiffs of their Bhare of the plaint properties or until the expiration of three years from the date of the decree which ever event first occurs. The final decree is coufirmed in all other respects. A. S. No. 106 of 1124 is partly allowed as indicated above. We make no order as to costs in A. S. NO. 106 of 1124.