Shaikh Qamruddin vs Shaikh Fakhruddin

Das, J.—This appeal comes before us from the judgment of the Officiating District Judge of Darbhanga and arises out of a suit instituted by Shaikh Fakhruddin, who is one of the respondents before us, against the appellants for declaration of his title to and for recovery of certain properties which are specified in the plaint.

It appears that one Jadibuksh died leaving two sons, three daughters and a widow. Upon his death the widow and her infant daughter became entitled to a two-anna share each. The widow on her own behalf and as guardian of her minor daughter conveyed a four-anna interest in the property to the plaintiff, and it is on the basis of this conveyance that the plaintiff brought the action out of which this appeal has arisen.

Various questions were raised in the Courts below and were disposed of in favour of the purchaser; but before us the substantial question that has been argued on behalf of defendants Nos. 1 and 2, who are the sons of Jadibuksh and are in possession of the property, is that the widow was not competent to convey the share which belonged to her infant daughter. Upon this question the lower Appellate Court came to the conclusion that a sale by the mother is neither void nor voidable, but in a state of suspense till the end of the minority of the minor. No doubt, at the time when the learned Judge decided this case it was possible to take this view, but in our opinion the argument is inadmissible in view of the latest Privy Council decision. The Privy Council in 23 CWN 50 (Privy Council) has reviewed all the authorities and has come to the conclusion that a Muhammadan mother is not the guardian of her minor daughter either de jure or de facto and has no authority, either express or qualified, to convey the property belonging to her minor daughter in favour of any person. In our opinion, that decision is destructive of the case put forward on behalf of the purchaser. The lower Appellate Court has come to the conclusion that there was no necessity for the sale of the minor''s property. Therefore, the transaction is absolutely void and passed no title whatever to the purchaser. There being no title in the purchaser so far as the infant''s share is concerned, he was not able in an action in ejectment to maintain a suit as against defendants No. 1 and 2. In our view, therefore, the decision of the lower Appellate Court on this point is erroneous. The decree of the lower Appellate Court, in so far as it awards to the plaintiff possession of the share of the infant daughter, should be discharged. We would, therefore, allow this appeal.

The result is that the plaintiff''s suit, in so far as it relates to the 2-anna share which belonged to the infant daughter, will stand dismissed. The appellant is entitled to the costs of this appeal.

Adami, J.

I agree.