Lokur, J.:—

This is an appeal against the decision of the First Class Subordinate Judge at Dhulia dismissing the plaintiff's suit to recover vacant possession of a land purchased by him from a Mahomedan widow and her minor daughter. The land originally belonged to one Abdul Rahiman who mortgaged it to the plaintiff and died leaving a widow Sugarabi and a minor daughter Nyamatbi. After his death the plaintiff obtained a decree on the mortgage against Sugarabi and Nyamatbi and in execution of the decree in Darkhast No. 178 of 1939 the papers were transferred to the Collector for sale of the mortgaged land. Sugarabi having refused to act as the guardian of her minor daughter Nyamatbi, the Nazir of the Court was appointed as her guardian ad litem in the Darkhast proceedings. Before the sale was held by the Collector, the parties came to a compromise and Sugarabi made an application to the Court that she had agreed to sell the mortgaged land to the plaintiff (decree-holder) for Rs. 25,000 in full satisfaction of the decree, that she was willing to act as her minor daughter's guardian ad litem, that she should be appointed as such in place of the Nazir of the Court, that the arrangement was for the benefit of the minor, that permission should be granted to her under O. XXXII, r. 7 of the Code of Civil Procedure to effect the compromise on behalf of the minor and that the proceedings should be recalled from the Collector. The application was granted on September 22, 1941. On September 26, 1941, Sugarabi executed a sale-deed on bhalf of herself and as the guardian of her minor daughter, conveying the land in suit to the plaintiff for Rs. 25,000. After the deed was registered, the plaintiff informed the Court that the decree was satisfied by the sale-deed and on October 14, 1941, the Darkhast was disposed of with a note that the decree under execution had been fully satisfied. The plaintiff then filed this suit against the Defendants who were claiming to be in possession as lessees. On the pleadings twelve issues were raised in the lower Court, but the suit was dismissed on the ground that Sugarabi was neither the legal nor the certificated guardian of her minor daughter and the sale-deed passed by her was, therefore, void.

It is now urged by Mr. Coyajee for the plaintiff that the sale being voidable at the instance of the minor, it is not open to the defendants to impeach its validity and that in any case the leave granted by the executing Court under O. XXXII, r. 7, Civil Procedure Code, was sufficient to clothe Sugarabi with power to sell the land as the guardian of her minor daughter.

It is now well settled by the decision of the Privy Council in Mata Din v. Ahmad Ali, 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 alienate the minor's immoveable property and that a Mahomedan mother is entitled only to the custody of the person of her minor child but is not the natural guardian and has no higher powers to deal with her minor child's property than any outsider who happens to have charge of the minor for the time being. The leave to compromise given to Sugarabi by the executing Court and her appointment by that Court as the guardian ad litem of her minor daughter did not make her the guardian of the minor's property. The leave under O. XXXII, r. 7, Civil Procedure Code, merely approved of the proposed compromise as beneficial to the minor and authorised the guardian ad litem to give effect to it. If that compromise included the transfer of the minor's immoveable property, then that transfer must be effected according to law. Sugarabi had to be appointed a guardian of the minor's property under the Guardians and Wards Act before she could have any authority to deal with the minor's immoveable property. The leave granted by the executing Court under O. XXXII, r. 7, may be sufficient to enable the District Court to sanction the sale under s. 29 of the Guardian and Wards Act and she got herself appointed as the guardian of the minor's property. Until such appointment, she, as the guardian ad litem in the execution proceedings, is in no better position than a de facto guardian for the purpose of selling the minor's immoveable property. Mr. Coyajee relies upon the ruling in Abdur v. Klandkar, where a lease for a term of seven years given by the certificated guardian of a minor in accordance with a compromise in a suit entered into with the sanction of the Court was held to be valid without the sanction of the District Judge under s. 29 of the Guardians and Wards Act. But in that case the lease was effected by a guardian who had been appointed by the District Court and had, therefore, power, to deal with the minor's immoveable property. The only question there was whether after the Court held the lease to be for the benefit of the minor and gave leave to the guardian ad litem to effect it under O. XXXII, r. 7, Civil Procedure Code, a further permission of the District Court which had appointed the mother as the guardian was required to be taken under s. 29, and it was held that as the lease had been made in accordance with the compromise and had been duly sanctioned, as being for the benefit of the minor, no further sanction under s. 29 of the Guardians and Wards Act was necessary. But in the present case Sugarabi was not a certificated guardian, and, therefore, had no power whatever to deal with her minor daughter's property. Had she been appointed as a guardian of the property of her minor daughter by the District Court under the Guardians and Wards Act, then it would not have been necessary for her to take a further permission to carry out the terms of the compromise under s. 29 of that Act. As she had no such power to deal with her daughter's property, the sale cannot be binding on the minor.

If, however, such a sale is voidable at the option of the minor, and the minor has not avoided it then the defendants would not be entitled to challenge its validity. But in our opinion the sale is void and not merely voidable. This question was raised in Mata Din v. Ahmad Ali but was left open. Lord Robson who delivered the judgment in that case observed:

“There has been much argument in this case in the Courts below, and before their Lordships, as to whether, according to Mahomedan law, a sale by a de facto guardian, if made of necessity, or for the payment of an ancestral debt affecting the minor's property, and if beneficial to the minor, is altogether void or merely voidable. It is not necessary to decide that question in this case.”

The question again arose before the Privy Council in Imambandi v. Mutsaddi, and after reviewing several cases, their Lordships, proceeded to consider the three propositions laid down in Ayderman Kutti v. Syed Ali. The one with which we are concerned is the third proposition, viz., that “dealings by a de facto guardian are neither void nor voidable, but are ‘suspended’ until the minor on attaining majority exercises his option of either ratifying the transaction or disavowing it”. Dealing with this proposition, their Lordships, after quoting extracts from Hedaya, Fatawai Alamgiri and Majma'-ul-Anhar, observed as follows:—

“In their Lordships' opinion the Hanafi doctrine relating to a sale by an unauthorised person remaining dependent on the sanction of the owner refers to a case where such owner is sui juris, possessed of the capacity to give the necessary sanction and to make the transaction operative. They do not find any reference in these doctrines relating to fazuli sales, so far as they appear in the Hedaya or the Fatawai Alamgiri, to dealings with the property of minors by persons who happen to have charge of the infants and their property—in other words, the ‘de facto guardians’.

“The Hanafi doctrine about fazuli sales appears clearly to be based on the analogy of an agent who acts in a particular matter without authority, but whose act is subsequently adopted or ratified by the principal which has the effect of validating it from its inception. The idea of agency in relation to an infant is as foreign, their Lordships conceive, to Mahomedan law as to every other system.”

Their Lordships then cited a passage from the “Book on Pledges” (Kitab-ur-Rahn) of the Fatawai Alamgiri, which says:

“The mother: if she pledges (mortgages) the property of her infant child, is not lawful, unless she be the executrix (of the father) or be authorised therefor by the guardian of the minor; or the judge should grant her permission to pledge the infant's property. Then it is lawful.”

Their Lordships observed that the power to sell could not be wider than the power to mortgage.

After a consideration of various texts and rulings their Lordships concluded:

“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 immoveable 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.”

From this Mr. Coyajee argues that it is only the infant who can resist the transferee's action for ejectment. But their Lordships did not stop short at that, but further observed:

“It follows that, being himself without title, he cannot seek to recover property in the possession of another equally without title.”

This leaves no doubt that even a stranger who is himself a trespasser can resist an action in ejectment by a purchaser from an unauthorised person like the mother of a Mahomedan infant. Their Lordships thus held such a transfer to be absolutely void and not merely voidable. After this decision of the Privy Council the Madras High Court also has held such sales to be void (Kannusami Chetti v. Rabiath Ammal, and Moideen v. Kunhalikutti. A Full Bench of the Allahabad High Court has also taken the same view and held in Anto v. Reoti Kuar I.L.R 1937 All. 195, that a transaction amounting to an alienation of immoveable, property belonging to a Mahomedan minor by his de facto guardian is void and as such there can be no question of ratification of the transaction by the minor upon his attaining majority.

Mr. Coyajee has drawn our attention to the following remark made by Madgavkar J. (sitting alone) in Shidlingava v. Rajava.

“A Mahomedan mother has no power to alienate the immoveable property of the son: Imambandi v. Mutsaddi. At the same time, the previous case law and even the observations of the Privy Council in that case show that it is not a transaction forbidden by law and void in that sense but rather one outside the powers of the mother though it may be justified by cases of extreme necessity, as appears from the observations of Mr. Ameer Ali in the same case.”

This observation was really unnecessary for the decision of that case as it was decided against the minor on the ground of adverse possession for more than twelve years. With respect, we think that the observation is not justified by what has been said by Mr. Ameer Ali in delivering the judgment of the Privy Council in Imambandi v. Mutsaddi Madgavkar J. has not referred to the particular observations of Mr. Ameer Ali from which he has arrived at his conclusion. On the other hand, in Mr. Ameer Ali's valuable book on Mahomedan law, Vol. II, fifth edn. 1929, at p. 543, the learned author has referred to the judgment of the Privy Council delivered by himself and observed:

“A mother is not a natural guardian.

The extent of her powers has been discussed by the Judicial Committee in the case of Imambandi v. Mutsaddi, and the principle governing her acts clearly explained. Unless she is appointed by the father as the guardian of his minor children's estate, or is so appointed by the Judge, she has no power to intermeddle with their immoveable property (akar). All her dealings with akar are ipso facto void.”

It must, therefore, be held that the sale of the share of Nyamatbi in the land in suit by Sugarabi is void and the plaintiff has not acquired any title to that share by the sale-deed taken by him from Sugarabi.

This finding, however, does not dispose of the plaintiff's claim altogether. The lower Court, with manifest hurry, dismissed the suit wholly without deciding the other issues. The minor Nyamatbi was not the sole owner of the land in suit and on the second issue the lower Court has recorded a finding that Sugarabi has a two annas share in the land. It has, however, given no reason for that finding. If Sugarabi and Nyamatbi are the only heirs of Abdul Rahiman, then in addition to two annas share as a sharer, Sugarabi would be entitled to something more by “return”. The lower Court has given no reason why the plaintiff is not entitled to Sugarabi's share in the land, though the minor's share may not be affected by the sale-deed. Sugarabi's share has therefore, to be determined correctly and appropriate relief granted to the plaintiff in respect of that share, if he succeeds on the remaining issues. For this purpose the case has to be sent back to the lower Court.

It is unfortunate that having taken a sale-deed for Rs. 25,000 in good faith after obtaining the leave of the executing Court under O. XXXII, r. 7, Civil Procedure Code, and after allowing his decree to be certified as fully satisfied and the Darkhast to be disposed of, the plaintiff has to lose a major portion of the land by reason of his not getting correct legal advice regarding a Mahomedan mother's power to dispose of her minor daughter's property. But we feel no doubt regarding the legal position and cannot allow sympathy to defeat the law.

The appeal is partially allowed. The decree of the lower Court is set aside. The finding of the lower Court on the second part of the second issue that Sugarabi has only a two annas share in the land in suit and the finding on issues Nos. 7 and 11 are set aside. The other findings recorded by the lower Court are maintained and the suit is remanded to the lower Court for determining whether and what relief the plaintiff is entitled to in respect of Sugarabi's share and for passing a fresh decree in the light of this judgment, after deciding all the other necessary issues. Both the parties are at liberty to adduce further evidence. The appellant shall pay three-fourths of the costs of the respondents in this Court and bear his own.

Appeal partially allowed.

Y.V.D