Kharag Narain v. Mst. Bibi Hamida Khatoon

Sinha, J.:— This is an appeal by defendant 1 to the action. The suit was brought for declaration of title and recovery of possession together with mesne profits in respect of the suit lands. A short genealogy may now be given.

2. The plaintiffs are daughters and son of Hafiz. Their case is that the lands in suit belonged to Izharul Haque, who died leaving his widow, Asma Khatoon, and his son, Hafiz. After the death of Izharul Haque, the properties were inherited by Hafiz and his widowed mother, Asma Khatoon. Hafiz died leaving his widow, Mahmuda Khatoon, his mother, Asma Khatoon and two daughters and a son mentioned above. According to the plaintiffs' case, after the death of Hafiz, the properties were inherited by all the heirs according to Mohamedan Law. The mother and the grandmother of the plaintiffs, according to their case, made an oral gift of their shares in the properties to the plaintiffs, and, thereupon, the plaintiffs became the 16 annas owners of the properties left by Hafiz. The plaintiffs were minors at the time of the death of Hafiz, which took place on 13-7-1932, and they were living under the guardianship of their mother, Mahmuda Khatoon.

3. On 3-4-19-33 defendant 1 fraudulently got a sale deed executed in his favour in respect of the properties in suit by their mother and the grandmother for self and as Guardian of the minor plaintiffs. The plaintiffs allege that the sale was absolutely void and the grandmother, as guardian of the minor plaintiffs, had no right, in law, to convey party immovable properties on their behalf.

4. The plaintiffs' further allegation was that defendant 1 had sold almost all the lands to defendants 2 to 9 by several documents and, as defendant 1 himself had derived no title under the sale deed, defendants 2 to 9 equally got no title from the different sale deeds executed in their favour by defendant 1. On these grounds, the plaintiffs wanted a declaration that the sale deed by their mother and their grandmother for self and as guardian of these minor plaintiffs was without any legal effect and was void.

5. Several sets of written statements were filed by the defendants. Defendant 1 alleged that the suit was not maintainable, that the sale deed was binding upon the plaintiffs having been executed to pay off debts that had been incurred from time to time by Hafiz, who was engaged in the business of a contractor, that the plaintiffs lived under the guardianship of their grandmother and that the grandmother and the mother had legal powers to execute the kebala on their own behalf and as guardian on behalf of the minors.

6. The story of gift propounded by the plaintiffs was denied. Defendant 1 further alleged that he had sold away all the properties, except one bigha out of the lands in suit, to defendants 2 to 9 and that those defendants were in possession of the properties except the one bigha which was in his possession. The other defendants, besides supporting the allegations made by defendant 1, alleged that they were bona fide purchasers for value and their possession was entirely protected.

7. The trial Court found that the oral gift alleged by the plaintiffs in their favour by the grandmother and the mother was not proved and that there was no gift made by them in favour of the plaintiffs. So far as the shares of the mother and the grandmother of the plaintiffs in the estate left by Hafiz were concerned, the Court found that the safe by the mother and the grandmother of their respective shares was a good sale binding upon them, but the sale of the shares in the immovable properties amounting to 11 annas 4 pies of these plaintiffs by the grandmother on their behalf, as guardian, was wholly void and, therefore, defendant 1 or defendants 2 to 9 got no title to those properties.

8. It was further held that defendant 1 was not entitled to refund of any portion of the consideration money in respect of the shares belonging to the plaintiffs and conveyed to him. The Court also held that the question of mesne profits should be left open to be agitated in a separate proceeding.

9. Defendants 2 to 9 do not prefer any appeal to this Court, and the appeal has been presented only on behalf of defendant 1.

10. Mr. B.C De, on behalf of the appellant, submitted two points for consideration, namely, (1) that the grandmother, as de facto guardian, had power to alienate the immovable properties on behalf of the minors for payment of the legal debts of the estates, and (2) that in any event if the estate had been benefited by the alienation, the Court should make the refund of the consideration money a condition precedent to the return of the properties to the plaintiffs.

11. Mr. R.K Varma, who followed Mr. De, also raised another point that defendant 1, being not in possession of the whole of the lands, was not liable for mesne profits in respect of the lands of which he was not in possession.

12. It is now too late in the day to contend, as Mr. De contends, that a de facto guardian of a person governed by the Mahomedan Law is entitled to transfer immovable properties on behalf of a minor. Under the Mohamedan Law, the mother or the grandmother is not the legal guardian of the properties of a minor; the legal guardians under the Mahomedan Law are respectively (1) the father, (2) the executor appointed by the father's will, (3) the father's father and (4) the executor appointed by the will of the father's father.

13. In default of the legal guardians, as mentioned above, a guardian for the protection and preservation of the minor's properties has to be appointed by the District Judge under the provisions of the Guardians and Wards Act. A person who is not the legal guardian but who looks after the minor and his properties is popularly known as a de facto guardian, but such a guardian has no power, in law, to transfer a right or interest in immovable property of the minor.

14. Such a transfer is not merely voidable but as void ab initio under the Mahomedan Law. It would serve no useful purpose to consider the various authorities on this point, but it is enough to mention that this view, which I have taken, is supported by the authorities of the Privy Council in — ‘Mata Din v. Ahmad Ali’, 34 All 213 (A), as also — ‘Imambandi v. Mutsaddi’, AIR 1918 PC 11 (B), which was followed only recently by the Supreme Court in — ‘Mohd. Amin v. Vakil Ahmad’, AIR 1952 SC 358 (C).

15. Being confronted with these decisions, Mr. De had at last to concede that the alienation in question by the grandmother of the shares in the immovable properties belonging to the plaintiffs was void. He, however, argued the second point with some amount of vehemence taking his stand upon the provisions of Section 41 of the Specific Relief Act. Section 41 of the Specific Relief Act runs as follows:

“On adjudging the cancellation of an instrument, the Court may require the party to whom such relief is granted to make any compensation to the other which justice may require.”

16. It is debatable whether in the present case the plaintiffs, namely, the minors, needed any cancellation of the sale deed in question. The deed of sale had not been executed by them; it had been executed by their grandmother, and, under the Mahomedan Law, such an alienation was without effect being void ab initio. But it may be conceded for the sake of argument that the Court has discretion in suitable cases to order payment of compensation, if the justice of the case required, while declaring the instrument to be void.

17. Mr. De has placed reliance upon certain cases of other High Courts. In — ‘Rang Ilahi v. Mahbub Ilahi’, AIR 1926 Lah 170 (D), the Court, while holding that the mortgage by the mother of the plaintiffs was void ab initio, held that the mortgagee was entitled to a refund of the amount by which the minors’ estate and the minors themselves were benefited. That case could be easily distinguished from the present one.

18. The mother of the minor plaintiffs had raised a certain sum of money by a mortgage of the property inherited by the minors from their father. The property consisted of a portion of a certain house, the other portion being in the ownership of the defendant. The plaintiffs brought the suit to recover possession of the property on the ground that the alienation made by their mother was void and inoperative. The mortgagee-defendant pleaded that the mortgage was for the benefit of the minors and that the mortgagee during the continuance of the mortgage, had made improvements to the house.

19. The finding of fact was that, out of the mortgage money, a sum of Rs. 2,500/- was paid to the creditors of the plaintiffs' father who had, shortly before his death, executed a bond hypothecating certain house property and that the mother required Rs. 500/- to bring up the plaintiffs and Rs. 400/- was the amount of cost of improvement of the house. The first Court had decreed the suit on the condition that a sum of Rs. 3,400/- should be paid to the mortgagee, and this finding was upheld by the High Court.

20. This decision was based on the principle that the minors and their estate had been benefited, to the extent of Rs. 3,400/- and, therefore, justice required that the minors should pay this amount to the mortgagee before taking possession of the property. Even if the question of benefit were to be a relevant consideration in this case, which, in my opinion, appears to be extremely doubtful, as I shall discuss later, there can be no question of benefit either to the estate of the minors or to the person of the minors.

21. The evidence given by the defendant-appellant is that there were certain handnotes executed by Izharul Haque, the grandfather of the plaintiffs, and some of them had been renewed by Hafiz, the father of the plaintiffs. I have examined the hamd-notes (Exs. A to All) and I find that only one of these handnotes, namely, Ex. A4, shows that it was executed by Hafiz for a sum of Rs. 115/- only; the other handnotes by Hafiz were mere renewals of handnotes either executed or renewed by the father of Hafiz.

22. The second case to which reference is made, is that of — ‘Abdul Majid Saib v. Ramiza Bibi’, AIR 1931 Mad 468 (E). In this case, the mother of the Mahomedan plaintiffs had made an alienation of the property belonging to the plaintiffs and the suit was brought for setting aside the alienation. The alienee-defendant had contended that the consideration money was utilised for payment of the plaintiffs' deceased father's debts “binding on the estate”, and that certain improvements had been made to the property from out of the purchase money.

23. It is not clear from the facts what were the debts of the father which were binding on the estate. Both the Courts below had found in this case that the minors' estate was benefited by the use of the purchase money obtained from the vendee and so it was equitable, when the transaction was set aside as regards their share, that they should pay the proportionate amount of the purchase money, and for this reliance was placed on the case of — ‘Mohari Bibee v. Dharmodas Ghose’, 30 Cal 539 (PC) (F).

24. This case again, proceeded upon the benefit to the estate of the minors accruing from out of the consideration money paid by the alienee for the transfer. The last case referred to on behalf of the appellant is that of — ‘Gondulal Ratanlal v. Abdul Sattar’, AIR 1948 Nag 353 (G). In this case also, it was held that the consideration money was needed for payment of a decree obtained against the legal representatives of the deceased.

25. The deceased was a Mahomedan, who had executed a deed of transfer of a field in favour of his wife with the purpose of defeating the claim of his creditors. The deed was found to be a mere nominal transaction and that the title did not pass to the wife. Subsequently the man died and his creditors obtained a decree against his legal representatives and attached the field. In order to pay off those debts, the widow of the deceased, purporting to act on her own behalf and as de facto guardian of her minor children, had executed a deed of sale in respect of the field.

26. The minors brought the suit for possession of their share in the field ora the ground that their mother had no power to sell their share in the field, and it was held that the alienee was entitled to a refund of a certain amount of the consideration money by which the estate had been benefited by payment of the decree. It is obvious that in this case also the order of compensation was based on the principle of benefit to the estate of the minors.

27. In the present case, even if the Court had to proceed on the principle that the alienee is entitled to a refund of so much of the consideration money as was utilised for the benefit of the estate of the minors or the minors themselves, there is no material on record to come to a conclusion as to in what way the minors' estate or the minors themselves had been benefited by the alienation; all that we are told is that certain handnotes had remained outstanding and for payment of those debts covered by the handnotes, the alienation in question was made.

28. These debts had not ripened into a decree and, therefore, it cannot be said as to whether the amount of the debt or the liability to pay the same had been determined by a competent Court of law. Even if we were to follow the decisions aforementioned, it was not possible, in my opinion, to give any decree to the defendant-appellant for a refund of whole or part of the consideration’ money.

29. In the case of — AIR 1918 PC 11 (B), the law relating to the power of a de facto guardian, as opposed to a legal guardian, was exhaustively dealt with, if I can say so with great respect by their Lordships of the Privy Council. It will be profitable to quote the following passage from their Lordships' judgment:

“The question how far, or under what circumstances according to Mahomedan law, a mother's dealings with her minor child's property are binding on the infant has been frequently before the Courts in India. The decisions, however, are by no means uniform, and betray two varying tendencies; one set of decisions purports to give such dealings a qualified force; the other declares them wholly void and ineffective. In the former class of cases, the main test for determining the validity of the particular transaction has been the benefit resulting from it to the minor; in the latter, the admitted absence of authority or power on the part of the mother to alienate the minor's property.” After reviewing a number of authorities, case law and texts, their Lordships came to the following conclusion:

“…………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.”

30. The words have been underlined (here in ‘ ’) by me. If the alienee of the infant's property is a trespasser, having been let into possession by a deed of alienation executed by a de facto guardian, who had no right to convey to the alienee, it is difficult to understand how the alienee, a trespasser, can ask for refund of whole or a portion of the money which he paid as consideration for the alienation. He is a man without title and he can be turned out by the rightful owner, the infant, on the ground that he had purchased the property from a person who had no title to convey.

31. In some of these cases referred to above by Mr. De, reliance was placed upon the case of — 30 Cal 539 (PC) (F), where an observation was made by their Lordships as follows:

“These sections (referring to Sections 38 and 41 of the Specific Relief Act) no doubt to give a discretion to the Court, but the Court of First Instance and subsequently the appellate Court, in the exercise of such discretion, came to the conclusion that under the circumstances of this case justice did not require them to order the return by the respondent of money advanced to him with full knowledge of his infancy, and their Lordships see no reason for interfering with the discretion so exercised.”

32. This observation of their Lordships was understood as holding that in suitable cases the alienee is entitled to a refund of his money. In my opinion, however, the question was not required to be answered by their Lordships in view of the findings of the Courts below and that observation should not be understood as deciding that question. The Supreme Court in the case of — AIR 1952 SC 358 (C), referring to the Privy Council case in — AIR 1918 PC 11 (B), said as follows:

“The test of benefit resulting from the transaction to the minor was negatived by the Privy Council and it was laid down 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.”

33. If the benefit to the estate of the minors is of no consequence in considering the question of the validity of the alienation itself, it is extremely doubtful if the same consideration of benefit could be relied upon by the alienee for the purpose of enabling the Court to pass a decree in his favour for refund of the whole or a portion of the consideration money.

34. The transaction by a de facto guardian of a Mahomedan minor is absolutely void, and if that be so, the alienee should not be held entitled to a refund of the consideration money on the ground that the minor or his estate has been benefited. In my opinion, there is no equity in favour of a person who takes a transfer of a property belonging to somebody from a person who has no right to make the transfer, and the discretion vested in the Courts, under Section 41 of the Specific Relief Act, should not be exercised in favour of such a transferee.

35. In the case of — ‘Kunhibi v. Kalliani Amma’, AIR 1939 Mad 881 (H), the mortgagee from the mother, on her own behalf and as de facto guardian of her minor son, had brought a suit to recover’ money on the mortgage, and it was held:

“A minor whose property has been made subject to a void mortgage by an unauthorised person is entitled to ignore that mortgage and the mortgagee is entitled to claim no benefit thereunder in law as against the minor. To hold that the minor as defendant to a suit on a void mortgage is bound to pray for its cancellation and to restore the benefit received would be to give to the mortgagee a right to enforce his void contract by compelling the minor to pray for cancellation; that is to say, the person who has entered into a void contract with some person not authorized to bind the minor would be given a weapon whereby he could force the minor to honour the contract in part.

36. This seems to me to be contrary to the maxim, “He who seeks equity must come with clean hands.’ I hold that there is no obligation upon defendant 1 either under Section 41 of the Specific Relief Act, or on general equitable grounds.”

37. As I have said already, on the facts of the present case, even if the principle of benefit to the estate and to the person of the minors is held to be a good principle and of which I am greatly doubtful, the defendant-appellant is not entitled to a refund of his consideration money. I understand that there are about 11 bighas of land, which were the subject-matter of the sale, out of which defendant 1, the appellant, has sold away all to defendants 2 to 9 except about one bigha which is still in his possession.

38. Defendants 2 to 9 are not aggrieved by the decree passed by the Court below. Defendant 1, therefore, must have realised a good deal of consideration money from defendants 2 to 9. The sale is dated 3-4-1933, and the suit was brought in 1945, just before the expiry of the twelfth year. The trespassers, therefore, have remained in possession all these years and enjoyed the usufruct of the suit lands. For these reasons, in my opinion, the second contention of Mr. De must also be repelled.

39. So far as the question of mesne profits is concerned, I do not see any reason to alter the order of the Court below, according to which the question of mesne profits was left open to be decided in a separate proceeding. Mr. R.K Varma suggested that his client, namely, the appellant, should not be saddled with mesne profits in respect of the properties not in his possession. It is needless to observe that only a trespasser in possession is liable for mesne profits, and the defendants must be Hable for the mesne profits only in respect of the land in their respective possession. In my judgment, there is no merit in this appeal, and it must be dismissed with costs.

Ahmad, J.:— I agree with my learned brother.

K.S.B

40. Appeal dismissed.