1. The question in this appeal is whether the sale of the immovable property of a mahomedan minor by a so - called de facto guardian - in this case the elder brother of the minor - can be validated by the minor ratifying the sale after attaining majority. (it does not appear that a plea of ratification was, In terms, Taken by the contesting defendants in this case; nor was any express issue joined on that question. But, Both the trial court and the lower appellate court have, It would appear, Managed to find such a plea implied in the plea of estoppel, Acquiescence and abandonment taken by the defendants and have dealt with the question of ratification in considering the issues joined on these pleas). The first court taking the view that such a sale was void ab initio and therefore incapable of ratification gave the plaintiff herein a preliminary decree for partition and separate possession of his share of the property, A leasehold, That had been alienated by his brother, Claiming to act as his guardian while he was a minor. (the suit was brought within three years of the plaintiff attaining majority so that no question of limitation could possibly arise). But the lower appellate court following the decisions of a single judge of this court in abdul sukkoor v. Muhammed dirar & others 1966 klt. 605 and lakshmi amma v. Saidakutty alias kunhi bava 1967 klt. 203 held that the sale was only voidable and therefore capable of ratification. It also thought that, Obsessed by their mistaken view of the law, The parties as well as the trial court had not paid due heed to the question of ratification, And it set aside the decree of the trial court and remanded the suit for fresh trial not merely on the question whether or not there had been a ratification by the plaintiff after attaining majority, But also on the other questions that arose in the suit, Questions such as whether the defendants were entitled to any equities or reservations, Whether they were entitled to compensation for improvements, And whether they were holding, Not under the impugned alienation, But under a fresh lease granted to them by the landlord (questions, It will be noticed, Entirely unconnected with the question of ratification) on the obviously unsustainable ground that the findings recorded by the trial court on these questions were vitiated by the wrong assumption that the alienation was void ab initio. Even if the view it took regarding the character of of the alienation were right, The proper course would have been to call for a finding on the question of ratification; and we might mention that both sides are agreed that in no view of the matter was there the least justification for a remand on the remaining issues.
2. We do not think that the view taken in abdul sukkoor v. Muhammed dirar & others 1966 klt. 605 and lakshmi amma v. Saidakutty alias kunhi bava 1967 klt. 203 is right. In the leading case regarding the alienation of the immovable property of a mahomedan minor by his de facto guardian, Namely, Imambandi versus haji mutsaddi, Air. 1948 p. C. 11 their lordships of the privy council held that a so - called de facto guardian in that case the mother had no power whatsoever to deal with the minor's property, No more power than a rank outsider had, And, Although their lordships themselves do not appear to have characterised it in such terms, The decision leaves no room for doubt that they affirmed the set of decisions which declared such a dealing wholly void and ineffective for want "of authority or power on the part of the mother to alienate or encumber the minor's property. " following this decision of the privy council, The courts in india including the supreme court in mohd. Amin v. Vakil ahmed air. 1952 sc. 358 have described such dealings as void. If a transaction is void in the strict sense of the term it has to be regarded as non est, And, It goes without saying that there can be no question of ratifying something that is nonexistent. But the learned judge who decided abdul sukkoor v. Muhammed dirar & others 1966 klt. 605 and lakshmi amma v. Saidukutty alias kunhi bava 1967 klt. 203 thought that the use of the word, "void in this context by the supreme court and the other courts was not in the strict sense of that word but was in the sense which, In strict legal terminology, Would be described as voidable at the instance of the minor. And, To reach this conclusion, He relied upon the circumstance that both the privy council and the supreme court had said that the de facto guardian had no power to convey to another any right or interest in immovable property which the transferee could enforce against the infant, From which he inferred that what their lordships meant was that the transaction was bad only as against the minor, But was good as against others, Or in strict terminology, Was voidable at the instance of the minor and therefore capable of ratification by him.
3. "void", It is true, Means an empty space and is in strict legal parlance, Used to denote a transaction that is altogether devoid of the legal results contemplated. So far as those results are concerned it is legally a nullity; it is as if it never were. But to say, As is often done, That such a transaction is void as against the whole world is misleading in as much as that implies that the whole world have the right to question it. For, The whole world would neither be interested in, Nor even entitled to question, Such a transaction. Only a person having at least a title or interest in the subject - matter of the transaction, May be, For instance, Only the possessory title of a trespasser, Would have the right to question it. Nor would it would be correct to say that a void act is for all purposes and in all circumstances a nullity. Though void in its primary intent it may nevertheless have effect in some other way. If a sells b's property claiming it as his own, The transaction is doubtless absolutely void, Or a nullity, So far as b is concerned. It is wholly destitute of legal efficacy as against b. He need not avoid it; nor can he endow it with efficacy by affirming it. Nevertheless, The sale is good as against a and will bind whatever interest he might subsequently acquire in the property. It can properly be said in such a case that the sale is void as against b or that it gave the buyer no right which he could enforce against b. That would not be to say that the sale is only voidable, Voidable at b's instance.
4. A voidable transaction is a transaction which a person affected thereby can, At his option, Either affirm or avoid. If he chooses to affirm or ratify it (having, Of course, The competency to do so, And in awareness of the facts, With open eyes, As it is often expressively put) he is thereafter precluded from avoiding or repudiating it. Once he successfully avoids it, It is, At any rate so far as he and persons claiming under him are concerned, As if the transaction had never existed. It is deemed to have been void ab initio. The avoidance of it relates back to the making of it although, Until avoidance, It is regarded as operative, Not absolutely but only conditionally, Being subject to defeasance by avoidance. According to the learned judge who decided abdul sukkoor v. Muhammed dirar & others 1966 klt. 605 and lakshmi amma v. Saidakutty alias kunhi bava 1967 klt. 203 an alienation of the immovable property of a mahomedan minor by his de facto guardian is void only in this sense, Namely, That it is voidable at the option of the minor it stands on no different footing from an alienation by a legal guardian or by the manager of a hindu joint family, Something which the privy council expressly negatived in imambandi v. Haji mutsaddi air. 1948 pc. 11 in overruling the decision in ayderman kutti v. Syed ali ilr. 37 madras 514.
5. It is true that in judgments and other juristic writings, As also in statutes the words, "void" is sometimes used to mean voidable, With the result that expressions such as null and void, Absolutely void, Void ab initio have had to be used on occasion to make it clear that what is meant is void in the strict sense of that term. But we do not think that the numerous decisions of the courts in india, Which following, Imambandi v. Haji mutsaddi air. 1948 pc. 11, Have characterised the alienation of the immovable property of a muslim minor by a de facto guardian as void have used that word otherwise than in its strict sense.
6. A voidable transaction can arise in many ways. It can arise when a person actually having no authority to act for another purports to do so, For example, By claiming to be the agent of the latter. It can arise when the kind of person described in s. 38 of the transfer of property act for example, The guardian of an infant, Or the manager of a joint family, Having authority to deal with the property of another only under certain circumstances deals with the property when those circumstances do not obtain. It can a rise when a person acting for himself acts in circumstances attracting s. 19 or 19a of the indian contract act. In all these cases, The transaction is capable of being ratified by the person affected of course he must be sui juris and aware of the circumstances. In the first case, As the privy council put it in bhavani shankar v. Gordhandas air 1943 pc. 66 ratification is in law equivalent to previous authority the ratification precludes a denial of previous authority (it is interesting to note that the hedaya (hamilton, 2nd edition, D. 296) gives much the same reason for the validation of a fazoole sale, Or the sale of the property of another without his consent, By ratification by the latter. It is, It says, As if the fazoolee seller had been an agent for sale because the subsequent assent is equivalent to a previous appointment of agency). In the second and third cases ratification is deemed to be conclusive proof, In the one case, That the circumstances necessary for authority did obtain, And, In the other, That the circumstances invalidating the transaction were not present. But with regard to the first case it is to be remarked that if the validation is because subsequent ratifications in law equivalent to previous authority, Namely, Authority when the transaction was actually effected, It presupposes that the person affected was at the time competent to confer authority. This indeed is expressly stated in imambandi v. Haji mutasaddi air 1948 pc. 11 where, After observing that according to shafei all dealings by an unauthorised person are absolutely void, Their lordships go on to observe:
"in their lordships' opinion, The hanafi doctrine relating to a sale by an unauthorised person remaining dependant 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 principle 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".
it is clear from what their lordships have said that the person affected must be sui juris at the time of the transaction for a validation by a ratification, And although their lordships were not there directly concerned with the question of ratification we think that this decision is clear authority for the view we are taking that there can be no ratification of the sale of the immovable property of a mahomedan minor by a so - called de facto guardian. A de facto guardian is not recognized by the mahomedan law. He is a rank outsider and an alienation by him can fall if at all, Only in the first of the three classes of cases we have mentioned. His position is at best that of a person who assumes the mantle of an agent, And, As their lordships of the privy council have observed, The idea of agency in relation to an infant is as foreign to mahomedan law as to every other system of law. On the other hand a dealing by a guardian the law recognizes, Whether de facto or de jure, Falls within the second of the three classes we have mentioned. Like a trustee he acts on the strength of his own authority, Authority vested in him by law and not on the strength of any authority derived from the minor or the cestui que trust as the case may be. If the minor after attaining majority affirms the transaction with open eyes, Then it will be conclusively presumed that his guardian acted within the scope of his authority.
7. The hindu law, Unlike the mahomedan law, Recognized a de facto guardian it no longer does so - see s. 11 of the hindu guardianship and minority act and, In the matter of alienation of the minor's property accorded him powers similar to those possessed by a de jure guardian. But, As we have repeatedly said, The mahomedan law does not recognize a de facto guardian and views such a person as a rank outsider with no authority to deal with the minor's property under any circumstances whatsoever. It is as if a a sells b's property not as a person authorised to do so but claiming the property as his own. As we have already indicted, We do not suppose that there can be any doubt but that such a transaction would be wholly void in that it is of no legal effect whatsoever, Even though the persons interested in and entitled to question it would be only b or his successors, Or persons otherwise having some interest in the property. There can be no question of such a transaction being ratified by b; no more can there be any question of a dealing by a, De facto guardian with the immovable property of a mahomedan minor being ratified by the minor; and although that is not a relevant consideration it is not for the courts to implement art. 44 of the constitution it would appear that the hindu law now has been brought into line with the mahomedan law in so far as this matter is concerned so that to take a different view would be to make them different once again.
8. With regard to the reliance placed in abdul sukkoor v. Muhammed dirar & others 1966 klt. 605 and lakshmi amma v. Saidakkutty alias kunhi bava 1967 klt 203 on the observation of the privy council repeated by the supreme court that
"a de facto guardian has no power to convey to another any right or interest is immovable property which the transferee can enforce against the infant"
, For coming to the conclusion that the transaction is a bad transaction only as against the infant and is therefore only a voidable transaction, We might observe that in the decision of the privy council this observation is followed immediately by the further observation that such a transferee being himself without title cannot seek to recover possession of the property in the possession of another equally without title. That shows that it is not merely the infant that is entitled to question the transaction. Any other person claiming an interest in the property, Though independently of the infant, Can also do so.
9. Apart from imambandi v. Haji mutsaddi air 1948 pc. 11, Which to our mind is sufficient authority for the view we are taking, The weight of authority is overwhelmingly in favour of that view see gulam jafar v. Ramdhan air 1927 nagpur 290, Mt. Anto v. Mt. Reoti kuar air 1936 allahabad 837 (fb), Karmachand v. Valli muhammed air 1937 sind 157, Gulam hasain v. Mir jakirali air 1939 nagpur 27, Bhikaji ramachandra v. Ajagarally sarapally air 1946 bombay 57 and ardhanari mudaliar v. Abdul rahiman (1956) imlj. 243 to mention only a few of the cases cited at the bar; see also mulla principles of mahomedan law, Sixteenth edition, S. 364, Para 6 at page 336. The only decisions to the contrary brought to our notice are, Apart from the two decisions of this court to which reference has already been made, Zainuddin hossain v. Md. Abdur rahim air 1933 calcutta 102 and jawahir singh v. Kochai municipality air 1937 peshwar 74. It is undisputed, And indeed indisputable, That even after coming of age an infant cannot ratify his own dealing with his property whilst an infant. How then can he be in a position to ratify a dealing by a rank pretender possessed of no manner of authority whatsoever!
10. In the result we allow this appeal with costs, Set aside the order of remand made by the court below, And direct that court to restore the appeal to its file and dispose of it in accordance with law and in the light of the observations in this judgment.