Rugia Begum and Others vs Iqbal Ali Khan

The unsuccessful defendants are the appellants. The trial Court decreed the suit for redemption. On appeal, it was confirmed. Thus the second appeal.

The facts are not in dispute. The suit property was hypothecated on Nov. 27, 1941 equivalent to 23rd Dhai 1351 Fasli for consideration and the respondent-plaintiff purchased the hypotheca with equity of redemption on Mar. 29, 1957 from the heirs of the mortgagors under Ex.A-3 dt. Mar. 29, 1957 to which two minors were parties, represented by their mother as de facto guardian. The plaintiff, as purchaser of the property, sought to redeem the mortgage and laid the suit. The principal defence taken by the appellants is that the minors were not represented by the proper guardian. Under Mahomedan Law, mother being a de facto guardian, she is incompetent to enter into a transaction on behalf of minors. Therefore, the transaction is void, thereby the respondent-plaintiff acquired no title nor interest under Ex. A-3 to enforce the claim in the suit and the suit is not maintainable. At the resistance of this contention by the respondent, the Court below negatived it. The same contention has been reiterated by Sri Syed Sadatullah Hussaini, learned counsel for the appellants placing strong reliance on Mohd. Amin and Others Vs. Vakil Ahmed and Others, . The question, therefore, is whether Ex. A-3 sale deed with equity of redemption of mortgage under Ex. A-1 dated November, 27, 1941 is enforceable in law and the appellants are bound thereby?

The principles of Mahomedan Law by Mulla (18th Edition) under Chapter-C, "Guardians of the Property of a Minor", Section 359 postulates thus :--

"The following persons are entitled in the order mentioned below to be guardians of the property of a minor.

(1) The father;

(2) The Executor appointed by the father''s will;

(3) The father''s father;

(4) The executor appointed by the will of the father''s father."

Section 360 postulates the guardians appointed by Court, and Section 361 deals with de facto guardians and it reads thus :

"A person may neither be a legal guardian nor a guardian appointed by the Court, but may have voluntarily placed himself in charge of the person and property of a minor. Such a person is called de facto guardian. A de facto guardian is merely a custodian of the property of the minor."

Under Section 362, a legal guardian or a guardian appointed by the Court alone is competent to alienate the property and no other person is entitled to represent the minor. In Mohd. Amin''s case (supra), their Lordships of the Supreme Court held thus : --

"Under the Muhammadan 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 immovable property which the transferee can enforce against the infant."

Thus it is settled law that a minor represented by a legal guardian alone is competent to make lawful conveyance transferring right, title or interest in Immovable property of the minor and the transferee acquires right thereunder. If the transfer is effected by a de facto guardian, then the transfer is void as against the minor. In this view, the sale made by the mother in this case under Ex.A-3 in favour of the respondent, to the extent of the interest of the minors, is not binding on them. The question, therefore, is whether the suit for redemption is maintainable? In Khatoon Bibi v. Abdul Wahab AIR 1939 Mad 306 Venkataramana Rao, J. (as he then was) was called upon to consider the question whether one of the co-owners of an immovable property can enter into mortgage or sell the property. The learned Judge held thus :

"Every heir is entitled to sell or mortgage or otherwise encumber his share of the property without reference to the other heirs just like any tenant-in-common."

In Bazayet Hossein v. Doolichand, (1878) 5 Ind App 211 (PC) the Board has held that Mahomedan heir has the right to convey his own share of the inheritance and would be able to pass a good title to the alienee notwithstanding any debts which may be due from the deceased and a creditor of a deceased Mahomedan (Sic). The creditor cannot follow the estate passed into the hands of a bona fide purchaser for value to whom it has been alienated by his heir-at-law. It is, thus, settled law that though Mahomedan heirs are tenants in common; every one is entitled to alienate or mortgage or otherwise encumber his share in the property for valid consideration. The question is where a conveyance executed jointly by the majors as well as minor sharers under the Mahomedan Law, whether the entire transaction is void and unenforceable against all, arises in this case. In Mohd. Amin''s case Supra, there was only a family settlement under which minors were represented by the de facto guardian, Viz., brother. It was held by the Supreme Court that the transaction being void qua the minor is void altogether qua all the parties including those who were sui juris. The same question has arisen in Maimunnissa Bibi and Others Vs. M.S.N.N. Abudul Jabbar and Others, . In that case, the conveyance under the sale deed was put in question. It was executed by two Mahommadans, one major and another minor, represented by mother. Placing reliance in Mohd. Amin''s Case (supra) and Imambandi v. Mutsaddi, AIR 1918 PC 11, it was contended that the whole transaction is void and not binding on the other major sharer as well. Veeraswami, J. (as he then was) distinguishing the above two cases, held thus:--

"The nature of a conveyance is not identical with that of a contract or an agreement or a family settlement. Of the four persons who executed the sale, two were competent to execute the conveyance and the other two being minors represented by the de facto guardian it is as if they did not execute the conveyance. In effect the conveyance should be regarded as one executed only by the two persons who were majors and had independent shares in the property which they could convey. A finding that the sale is void insofar as it related to the minors does not necessarily, in my opinion, affect the conveyance insofar as it related to the other executants, who were sui juris and were entitled to make a conveyance of their relative shares."

I respectfully agree. Similar question has also arisen in Jhulan Prasad Vs. Ram Raj Prasad and Others, . In that case, mortgage was executed by majors as well as minors. It was contended that it was not enforceable and the minors were not bound by the conveyance. While meeting that point and upholding the conveyance as a whole, it was held that -

"A sale was void only in so far as it related to minors and it was good so far as the major executants were concerned and their shares pass under the sale deed (Ext.2) to the plaintiffs. It is to be noted that the minor Shamshuddin died before institution of the suit. Hence even if Mst. Chatia had no right to sell his interest, the right and interest of Shamsuddin would obviously devolve upon Chatia and Sukhan who had conveyed their title to the plaintiffs. u/s 43 of the Transfer of Property Act, 1882, where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and proposes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. I am of the view that the principle underlying the provisions of this section will apply to the instant case. There is, therefore, no legal flaw in the title of the plaintiffs even with respect to the interest of Shamsuddin..... The appellant is a mortgage. In my opinion, the plaintiffs have right to redeem the entire mortgage property,"

In Madadin v. Ahmed Ali (1912) 39 Ind App 49 (PC) a Mahomedan executed a mortgage of his Immovable property. He then died leaving a will by which he bequeathed his properties to his four grandsons one of whom was a minor, in equal shares subject to equal obligations in respect of his debts. After his death three elder grandsons sold the mortgaged property including the minor''s share to the mortgagee to satisfy the mortgage debt and other debts of the deceased. The fourth grandson on attaining the age of majority instituted a suit for redemption of the mortgage in so far as it related to his share, the claim being based on the ground that his major brothers had no right to act as his guardians and their conveyance on his behalf was void as against him, The Privy Council allowed the claim of the quondam minor to redeem his share. It was held by the Privy Council that the sale though made to satisfy the debt of the deceased, was not binding on the minor and that he was entitled to redeem his l/4th share of the mortgage property. The implication of this decision is that the quondam minor was allowed to avoid the sale only so far as it related to his share. Take a case where the minor, on attaining majority, stands by the alienation made by de facto guardian, obviously the sale was being beneficial to his estate. In such a case why should it be allowed to be impeached at the behest of third party who may incidentally get benefited if the sale is avoided, so long as the contract subsists.

Thus, I am of the considered view that if a minor seeks to assail the legality and binding nature of the alienation made by a de facto guardian, it is always open to him to avoid the contract as being void But when it is not challenged, it is not open to the third parties to impugn the sale. In this case, the minors have not challenged the alienations. On the other hand, they stood by and it is only the mortgagee that is impugning the sale. As already held, each one of the Mahomedan co-owners is entitled to alienate, mortgage or otherwise encumber his share of the property though joint and such alienation, mortgage or encumbrance is valid as against his share in the property and it is open to the minor to assail its validity if it is conveyed by a de facto guardian. But when it is not challenged, it is not open to the third parties to assail its validity.

The ratio in Mohd. Amin and Others Vs. Vakil Ahmed and Others, is not applicable to the present case. That was a case where the minors themselves have challenged the settlement. Therefore it was declared that it was not binding qua even the major sharers. It is a case of settlement and not conveyance. Therefore the ratio therein does not apply to the facts in this case.

Considered from the above perspective, I hold that the decree of redemption granted by the Courts below is not vitiated by any error of law warranting interference. The Second appeal is accordingly dismissed, but in the circumstances without costs.