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Judgment
A minor sued for possession of land which the defendantvendees from his mother has taken possession of by virtue of a sale deeds executed by
the mother. The minor is a Mohammedan. The two Subordinate Courts held that a Mohammedan mother is not a de jure guardian of her son's in
accordance with the ruling of Their Lordships of the Privy Council in the case Imambandi v. Mutsaddi (45 Calcutta page 878) and decreed the
suit. The judgment was delivered by a Mohammedan Jurist and concluded in the following words
Their Lordships are of opinion 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 another any right or interest in the
immovable property which the transferee, if let into possession of the property under such unauthorized transfer, resist an action in ejectment on
behalf of the infant as a trespasser.
The learned Counsel for the appellant vendees quoted subsequent ruling of the British High Courts which in a certain manner added on to the
judgment of Their Lordships the provisions of section 41 of the Specific Relief Regulation. That Section is: ""On adjudging the cancellation of an
instrument, the court may require the party to which such relief is granted to any compensation the other which justice may require.
There is a ruling reported of the Bombay High Court A.I.R. 1925 Bombay page 499 and this was followed by the Lahore High Court in A.I.R.
1926 Lahore page 179. One of the Judges of the Lahore High Court was a Mohammedan Judge and the learned Judges made reference to an
earlier Privy Council Ruling of 30 Calcutta 539.
The present case, however, is distinguishable. The property in suit is land not a house. The land is agricultural land of which a creditor could not
have been able to obtain sale by execution of any money decree. The land would have been safe to the minor in any circumstances so we do not
think that in equity it is necessary for us to pass any order under the provisions of Section 41. The learned counsel referred to a ruling of a Bench
of this Court of which one of us was party. So far as we can understand the facts from the judgment it appears that the sale was of a house. The
facts in that case also were very clear. In the present case it appears that when the defendants obtained possession of the land and mutations of the
names through the Revenue Court they represented that the minor Biru was dead. The present case is therefore, distinguishable from the case of
second pauper civil suit No. 2 of 1989 decided by this court on 18th Phagan 1989.
We dismiss this appeal. No order is made as to costs as the respondent has not engaged any counsel.