Vemana Ramachandrayya Naidu vs Abdul Kadar Chisthi

Frederick William Gentle, C.J.—This appeal arises out of a suit on a mortgage which was tried by the learned Subordinate Judge of

Nellore. The mortgage is dated 16th May, 1927 and was executed by the first defendant on behalf of himself, as duly accredited agent of his

brother, Mustapha, and as the guardian of the eighth defendant, the surviving son of the executant''s deceased brother,, Ahammad. The mortgagee

was one V. Veerappa Naidu, the mortgage deed being for Rs. 5,172. In respect of that amount, Rs. 3,900 was to discharge a preexisting

mortgage debt created by one Pacha Saheb, the father of the first defendant, and the grandfather of the eighth defendant. The first defendant was

not the legal guardian of the eighth defendant but was solely a guardian who has been referred to colloquially is a "" de facto guardian"".

The learned Subordinate Judge in his finding expressed the view that the interest of the eighth defendant in the mortgaged property was not

affected by the mortgage executed by the first defendant as de facto guardian, and so far as the eighth defendant was concerned, he was dismissed

from the suit. There were other defendants and other matter arising, but in the present appeal the sole question for decision is whether the eighth

defendant''s share in the property, the subject of the mortgage, is affected by the deed, and whether the execution of the deed by the first

defendant as de facto guardian of the eighth defendant validates the mortgage so far as the eighth defendant is concerned.

The position of a de facto guardian was examined and discussed at length by the Privy Council in Imambandi v. Mutsuddi (1917) 35 M.L.J.

422 : L.R. 45 IndAp 73 : ILR 45 Cal. 878 (P.C.). After reviewing at length and in detail translations from original texts, their Lordships of the

Privy Council summarised the position in their observations at page 903 of the Report, whereat the following appears

For the foregoing considerations their Lordships are of opinion that under the Mahomedan 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; 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. It follows that,

being himself without title, he cannot seek to recover property in the possession of another equally without title.

In referring to Imambandi v. Mutsuddi (1917) 35 M.L.J. 422 : L.R. 45 IndAp 73 : ILR 45 Cal. 878 (P.C.) the learned author, Sir Dinshaw

Mullah, in his work on the ""Principles of Mahomedan Law"", 12th edition, observes as follows:

A de facto guardian has no power to transfer any right in the Immovable property of the minor. Such a transfer is not merely voidable, but void.

A contrary view regarding the effect of the acts of de facto guardians with respect to a minor''s property was taken in Venkatarayudu v. Aiyna

Khasim Saheb (1935) M.W.N. 943. There a promissory note was executed by the mother as the de facto guardian of a Muslim minor, in renewal

of a previous promissory notes executed by the minor''s father in renewal of earlier promissory note. It was held, by a single Judge, that the

renewal by the widow was valid and binding upon the minor and upon his estate. Though that case was decided some years after Imambandi''s

case (1917) 35 M.L.J. 422 : L.R. 45 IndAp 73 : ILR 45 Cal. 878 (P.C.) before the Judicial Committee, no reference appears to have been made

to it and it was not cited.

In Kunhibi alias Beebi Umma Vs. Kalliani Amma and Others, , it was held that when a de facto guardian of a Mahomedan minor borrowed

money by means of a mortgage in order to dis-chartge a decree on a previous mortgage executed by the guardian, the latter mortgage was void

and of no effect as regards the minor. In his judgment, Wadsworth, J., referred to Imambandi''s case (1917) 35 M.L.J. 422 : L.R. 45 IndAp 73:

ILR 45 Cal. 878 (P.C.) and to Venkatarayudu v. Aivna Khasim Saheb (1935) M.W.N. 943. He differed from the decision in the latter authority

but followed the principles laid down in Imambandi''s case (1917) 35 M.L.J. 422 : L.R. 45 IndAp 73 : ILR 45 Cal. 878 (P.C.).

In the present instance, there is nothing which justifies distinguishing this case in order to refuse, or fail, to apply, the principles in Imambandi''s

case (1917) 35 M.L.J. 422 : L.R. 45 IndAp 73 : ILR 45 Cal. 878 (P.C.). That principle had been made perfectly clear ; a de facto guardian of a

minor has no authority whatever to deal with the property of a minor and any purported transactions effected by him are void and invalid, so far as

the minor is concerned. It seems to me that in the present instance, the object of the transaction effected by the de facto guardian was to borrow

money to pay a debt which may be binding upon the minor or to stave off litigation in respect of the earlier debt., But the-principles laid down by

their Lordships of the Judicial Committee are in no way ambiguous or uncertain. In my view, they are in point and must be applied here.

On behalf of the mortgagee-appellant, it was contended that, since the first defendant and the eighth defendant are both co-sharers with others

and since the first defendant was in possession of the whole of the property at the time the mortgage was created the creation being for necessity,

the document is binding upon all sharers including the eighth defendant. The only authority which was cited in support of this proposition is to be

found in V.M.R.V. Chettiar Firm v. Asha Bibi AIR 1929 Rang. 107 in which the proposition propounded before us came up for decision. In the

judgment, the only grounds given for holding that the transaction by one sharer in possession, purporting to act on behalf of all sharers, is in an

observation at page 107 of the judgment, whereat it is said:

There are rulings both of this Court and of the Indian High Courts which show that the heirs of a deceased Mahomedan actually in possession of

his property could create a valid mortgage of the property, which would bind all the heirs, if the money was borrowed for purposes necessary or

beneficial to the estate.

Learned counsel for the appellant having referred to the Rangoon decision expressed his inability to find any of the rulings to which reference is

made. I can find no authority to support the proposition.

Lastly, it was contended that the eighth defendant is prevented by some form of doctrine of estoppel from challenging the binding nature of the

mortgage, so far as he is concerned. It was pointed out that the mortgage was executed in 1927; the eighth defendant attained majority about a

year later, in the year 1928, and no challenge was made against the validity of the mortgage until the year 1942. It was contended, therefore, that it

was too late for the eighth defendant to adopt the position which he did when the present suit was instituted.

The property in question is situate in British India, and is shared by at least eight relations, including the first defendant. All the sharers resided

outside British India and lived in Hyderabad except the first defendant alone, who is in British India and throughout all the years has been in actual

occupation. No one seems to have worried much about it save the first defendant. In his evidence, the eighth defendant said he thought his uncle,

the first defendant, would look after the property, he said he had never been to the village where the property is situate, he was informed of the

property by his maternal grandmother, and he denied that he had knowledge of the mortgage in respect of which the suit had been instituted until

the claim was made by the mortgagee upon the mortgage. There was no evidence which in any way contradicted the testimony of the eighth

defendant, and it is clear that he had no detailed knowledge of the property and was entirely ignorant of the existence of the mortgage which was

created at a time when he had not attained majority by a person without authority to bind him. Also, immediately the existence of the mortgage

reached the knowledge of the eighth defendant, he challenged its validity and binding nature. In these circumstances I am unable to see there is any

principle of estoppel which can apply to the eighth defendant. Whilst he may have "" known "" in his evidence he said he ""thought "", the first

defendant would look after the property, it cannot be assumed that he knew the first defendant had created or would create a mortgage or

otherwise charge the property. In my opinion, no principle of law arises which prevents the eighth defendant asserting what he is entitled to assert,

namely, that the mortgage is not binding upon him.

In my opinion, the decision of the learned Subordinate Judge is correct, and the appeal should be dismissed with costs.

Horwill, J.

I agree.