The Judgment of the Court was delivered by

Abdur Rahim, J.:— In both these appeals one common question arises, whether the sale of a minor's property by his mother acting as de facto guardian is valid under the Mahomedan law, and, if so, under what conditions. In one case, Appeal No. 1416, the deed of sale alleges that the shop which was sold had been vacant as the municipality prohibited the selling of fish and flesh in that shop, that it was in a dilapidated condition and the mother of the minor, who is defendant 8, was unable to execute repairs. The sale proceeds, it is alleged, were applied to the discharge of certain debts contracted for the marriage of a sister of the minor and for other purposes. It was to meet the expenses of this marriage that money was required and the other facts mentioned apparently furnished the reason for selecting this particular property for sale. In Suit No. 4 of 1909, which has given rise to Second Appeal No. 1639 of 1910, the allegation in the plaint is that the minors mother, who was managing the family affairs and maintained the children, utilized the money obtained by sale of certain mortgage rights belonging to the minor for the discharge of proper family debts and for other family necessity. The Court of first instance and the appellate Court, relying on the authority of Pathummabi v. Vittil Ummachabi(1), Durgozi Row v. Fakeer Sahib(2) and Abdul Khadar v. Chidambaram Chettiar(3), have held in both the suits that the sales, even if the allegations as to the purpose be true, would not be binding on the minor in Mahomedan law.

2. The decisions of the Courts on the question how far the mother or other near relative of a minor, who is not a guardian of the minor according to Mahomedan law with respect to his property but has the custody and upbringing of the minor, is authorized to alienate the minor's property are more or less conflicting. There are two decisions of the Privy Council bearing on the question which must be noted first: one of these is reported as Kali Dutt Jha v. Abdul Ali(4). That was the case of a guardian, and, with respect to his power, their Lordships of the Judicial Committee approved of the statement of the law as contained in Macnaghten's Principles of Mahomedan law, Ch. 8, Cl. 14, but they upheld the transaction in question in that case on the ground that there was dispute as to the title of the minor to the property and therefore the rule laid down in Macnaghten did not apply, and also on the ground that the sale was for the benefit of the minor. In Mata Din v. Sheikh Ahmad Ali(5), the sale was effected by the minor's mother who had custody of the minor's person and was in possession of his property, in order to pay certain debts binding on the minor and their Lordships held that a person, by de facto guardianship, may assume important responsibilities towards the minor though he cannot clothe himself with legal power to deal with the estate. They declared the sale not binding although it was made for the payment of an ancestral debt as it was not made of necessity, nor was beneficial to the minor inasmuch as the facts of the case showed that the sale of the property was unnecessary. It is not clear what their Lordships' decision would have been if the sale was made of necessity or was for the benefit of the minor. Another question was raised before the Judicial Committee in that case, whether a sale under the circumstances found there would be void or voidable. Their Lordships refrained from deciding, that question. It should also be noted that one of the members of the Committee, Mr. Syed Ameer Ali, observed with some emphasis during the argument that there was no warrant in the Mahomedan law for sale by the mother of her minor son's immovable property, even for necessity, but though much weight must, of course, be attached to this observation, it cannot be said that the decision of their Lordships was based on such broad and general grounds. In this Court it was held, in Pathummabi v. Vittil Ummachabi, that the principles of Hindu law relating to alienation by a Hindu widow are not applicable to alienations by the mother of a Mahomedan minor, although the sale for the purpose of paying ancestral debts by a co-heir in possession of all the effects of the deceased, if bona fide, would be binding on the other co-heirs. The principle, of this ruling has been followed in Durgozi Row v. Fakeer Sahib and Abdul Khadar v. Chidambararam Chettiar. In none of these cases was any definite opinion expressed on the general question, how far an alienation by a de facto guardian which is made for necessity or for the benefit of the minor is valid. Nor was this question decided in Second Appeal No. 1443 of 1907, an unreported judgment of Benson, J., and one of us. It was held in Thattoli Kothilan Aliyumma v. Kunhammad(6), that a guardian's powers in respect of the immovable property of the ward are very restricted in Mahomedan law and urgent necessity or clear benefit to the ward must be shown before an alienation by the guardian could be upheld. In laying down this proposition, the learned Judge followed the Privy Council ruling already mentioned Kali Dutt Jha v. Abdul Ali and certain decisions of the Bombay and Calcutta High Courts.

3. In the Calcutta High Court the law seems to be in a somewhat uncertain state. The earlier decisions confined within very narrow limits the power of the de facto or de jure guardian in dealing with a Mahomedan minor's property, while in more recent decisions this view has undergone considerable modification. In Mt. Bukshun v. Mt. Doolhin(7), a sale by a guardian of a minor's property was held not to be permitted by Mahomedan law except for urgent necessity. In Bhutnath Dey v. Ahmed Hosain(8), a mortgage by a person purporting to act as a guardian was held to be void as it was not shown that the money raised by the mortgage and utilized for paying arrears of rent could not have been raised otherwise than by mortgaging the minor's property. Similarly, in Moyna Bibi v. Banku Bihar(9), Rampini and Brett, JJ., set aside a sale by a de facto guardian because such a person has no authority to deal with the minor's estate, doubting whether even if the sale was for the manifest advantage of the minor it could be upheld under Mahomedan law. In Mafazzal Hosain v. Rasid Sheikh(10) however Rampini and Woodroffe, JJ., decided that a sale for urgent necessity in order to pay the debts due by the deceased and for the maintenance of the minor was valid in Mahomedan law. Woodroffe, J., was inclined to place the validity of such a transaction also on grounds of justice, equity and good conscience inasmuch as it was not made out that it was prohibited by Mahomedan law. It should be noted that the learned Judges distinguished the decision in Moyna Bibi v. Banku Bihar, on the ground that in that case it was not shown that the transaction was for the benefit of the minor. Maclean, C.J, and Caspersz, J., in a case reported as Ram Charan Sanyal v. Anukul Chandra Acharya(11), followed the ruling of Rampini and Woodroffe, JJ., in the last-mentioned case and held that a sale by the mother as de facto guardian of her minor son is good and valid if it is found to have been made bona fide for the benefit of the minor. Referring to the case in Moyna Bibi v. Banku Bihar, they point out that the effect of that ruling is considerably modified by the ruling in Mafazzal Hosain v. Rasid Sheikh.

4. In fact however they have laid down a broader proposition than what forms the basis of Rampini and Woodroffe, JJ.'s judgment in Mafazzal Hosain v. Rasid Sheikh, placing the ruling on general grounds of justice, equity and good conscience. But, with all deference to the learned Judges, there can be no doubt that the question must be determined in accordance with the provisions of Mahomedan law. Moreover, it is difficult to see bow a man who chooses to buy a minor's property from a person who has no power to deal with it however bona fide his action may have been, can invoke any principles of justice and good conscience to support the transaction itself, though, no doubt, such considerations may be a good ground for the Court refusing to render any help to the minor when he seeks to recover the property except on the condition of his restituting whatever benefit he has derived from the transaction. The other principle indicated in the decision of Rampini and Woodroffe, JJ., and in other rulings, viz. that in Mahomedan law urgent necessity and benefit of the minor is a justifying cause of such a transaction, though the person who acted on behalf of the minor had no legal authority of a guardian, seems to be a more intelligible ground and requires careful consideration.

5. In the Allahabad High Court, in Hasan Ali v. Mehdi Husain(12), a sale by the mother was upheld on the ground that it was made for necessary purposes, namely the payment of ancestral debts and the charge of maintaining the minor. In Hamir Singh v. Mt. Zakia(13), a Full Bench of that Court held that a decree duly obtained against one heir, who is in possession of the entire estate of the deceased, is binding on the minor. In Sitaram v. Amir Begam(14), there are certain general observations of Mahmood, J., to the effect that the powers of alienation, such as those enjoyed by a Hindu widow, are not known to Mahomedan law, a Mahomedan widow being merely a co-heir with her children and has not the authority of a guardian with respect to their property: and Edge, C.J, in Nizamuddin Shah v. Anandi Prasad(15), set aside a mortgage executed by a Mahomedan minor's uncle, which was apparently not created for necessity on the ground that he had no power of alienation over the property. Two decisions of the Bombay High Court were brought to our notice, reported as Baba v. Shivappa(16) and Hurbai v. Hirajee Byramjee Shanja(17). In the first case, a sale by the mother professing to act as guardian of her minor son, was set aside although it was made to discharge certain debts of the minor's deceased ancestor; and in the other case, a mortgage by the mother was declared not to be binding as it was made neither for absolute necessity nor for the benefit of the minor. Both the rulings enunciated the general principle that a mother, not a legal guardian, cannot bind the estate of the minor by any act of hers.

6. In this state of the rulings, it becomes necessary to examine the text-books on Mahomedan law to ascertain how a person who is not a legal guardian, but is in fact acting as guardian, is regarded in Mahomedan law.

7. We may take it that the powers of such a person cannot be greater than those of a guardian recognized by the law. The question is, whether they have any power at all to bind the minor's estate, or rather, in what circumstances, if any, dealings of a de facto guardian with the minor's estate will be upheld.

8. It seems to us to be quite clear from the authoritative pronouncement of Mahomedan jurists, as well as upon principles of Mahomedan jurisprudence, that while, the general rule is that the dealings with such a person do not ipso facto bind the minor, the law recognizes certain exceptions to this rule. The exceptions are mainly based on the general principle of Mahomedan jurisprudence that necessity is a valid ground for relaxing a strict rule of law and the application of the principle, in cases where a minor has no legally appointed guardian, seems to be well recognized. The author of Hedaya (see Hamilton's Translation, Grady's edition), in laying down that a person who has the protection of an orphan may lawfully take possession of a gift made to the orphan in order to make the gift valid, observes: “Acts in regard to infant orphans are of three descriptions: (1) Acts of guardianship, such as contracting an infant in marriage, or selling or buying goods for him (here we may point out that the proper translation of the word in the original, namely, * * * which is translated as “goods” should be animals for breeding purposes), a power which belongs solely to the walee or natural guardian whom the law has constituted the infant's substitute in those points. (2) Acts arising from the wants of an infant such as buying or selling for him on occasions of need.

9. Strictly speaking, the translation of the passage in the original Hedaya ought to be purchase of what the minor cannot do without and sale of it, or hiring a nurse for him for the like, which power belongs to the maintainor of the infant, whether he be the brother, uncle or (in the case of a foundling) the mooltakit or the mother, provided, she be maintainor of the infant; and as these are empowered with respect to such acts, the walee or natural guardian is also empowered, with respect to them in a still superior degree, nor is it requisite with respect to the guardian that the infant be in his immediate protection. (3) Acts which are purely advantageous to the minor, such as accepting presents or gifts and keeping them for him, a power which may be exercised either by a mooltakit, brother or uncle and also by the infant himself, provided he be possessed of discretion, the intention being only to open a door to the infant receiving benefactions of an advantageous nature to the infant; therefore he is empowered in regard to these acts, provided he be discreet, or any person under whose protection he may happen to be.”

10. It should be observed that the sale and purchase, mentioned as belonging to the first category of enumerated transactions, which are stated to be within the power of a lawful guardian, but not of a person who is not such a guardian, but has in fact the custody of the minor, are in the nature of transactions entered into for purposes of profit. This text, however, be it also noted here, does not deal with the question, under what conditions such sales and purchases by the guardian will be binding on the minor. Stated in plain language, the law, according to the Hedaya, is this: a person who is in actual charge of the property and person of the minors is empowered to do acts which are of imperative necessity having regard to the wants of the infant and acts which by their nature are necessarily advantageous to the infants; such acts re not confined to dealings with any articular form of property of the minor on far as it can be gathered from the language of the Hedaya and the other text-books which will be presently noticed and the very principle upon which the validity of such acts is based precludes he idea of any such limitation.

11. The rule enunciated by the Hedaya is accepted as good law by other jurists of he Hanafi School. Imam Zellai, in his veil-known Commentary on Kanz, viz. Jabinul Haquors, Vol. 6, at p. 34, in the chapter on Sales, also states the law in similar terms. He says that the power which the law allows to be exercised over to minor is of three kinds; (1) what must is advantageous to the minor, and such lower exists in all who have charge of the minor, whether guardians or not; for example, the acceptance of a gift or alms, and such acts can be done by the infant himself if he is of the age of discretion (2) what is absolutely injurious, such as livorcing the minor's wife or emancipating a slave: such authority is not recognized in anyone; (3) what is midway between the two, that is, what may be advantageous or hurtful to the minor, such as sale or hiring of property for the purpose of profit; such power is possessed only by the father, the grandfather and their executors, whether they have the actual custody of the minor or not, because their power to deal in this manner with the minor's property is by reason of their guardianship.

12. Therefore it is not a necessary condition of the exercise of such power by them that the minor should be in their actual custody. This is how it is stated in Alkafi: The hiring of a house belongs to the first category; and (4) giving the minor in marriage, this is a power possessed by all asha, or paternal kindred as it is usually translated, and also by zavilarham or distant kindred in the absence of paternal kindred. None others possess this power. In Majmaul Anhar, which is a commentary of Multakal Abhar, it is pointed out that according to Ashshafai and Malik, a de facto guardian can buy or sell for the minor only with the permission of the Judge; but the author does not doubt that the Hanafi law, which is the law governing the parities in this suit, is, as stated in the text of Altagwa, in the same terms as in the Hedaya and Kanz. It is not necessary to refer to the Arabic text-books on this point, as there seems to be no difference of opinion so far as the Hanafi jurists are concerned and all the text-books repeat the statement of the law as cited above. The principle of the rule is also forcibly illustrated in the provisions of Mahomedan law regarding the powers of an executor in connexion with the question whether, where more than one executor have been appointed by the testator, one of them can act singly. The general rule is that one of the two joint executors cannot act alone. But an exception is recognized in such matters as are of urgent necessity and purely for the benefit of the estate. Thus, in the Hedaya (see Hamilton's Translation, Grady's edition, Vol. 4, Ch. 7, p. 699), the matters in which one of two executors can act singly are thus enumerated: payments of funeral charges or for purchasing victuals or cloths for an infant, the hiring of a nurse, the selling of goods of a perishable nature, preserving the property of the deceased. In all such matters, one of the joint executors is permitted to act alone on two grounds, urgent necessity or clear benefit and advantage to the estate.

13. We may also point out here that, according to the general principles of Mahomedan law, the sale of a minor's property by an unauthorized guardian, even if it was not made for a valid cause, i.e of necessity, or in circumstances which would make the transaction purely advantageous to the minor, would, strictly speaking, be neither void nor voidable in the ordinary sense of the terms. An alienation of the minor's property without any justifying cause is regarded as maugat or dependent, that is to say, its validity will depend upon the minor accepting the transaction on attaining majority. It cannot be said to be inoperative until it is avoided nor can it be said to be invalid unless and until it is ratified. It is a transaction in a state of suspense; its validity or invalidity is only determined by the minor adopting or not adopting it after he has attained majority, though the effect of his decision will relate back to the date of inception of the transaction. If he decides to adopt the transaction, it becomes valid from the inception; otherwise it will be treated as void and of no effect from the very commencement. Some Hanafi’ jurists are inclined to classify such transactions under the head of Salibs or legally coneet transactions on the ground that the subject-matter dealt with being fit for the purpose and the parties to the transaction being majors, the contract is validly constituted and that is all that is required to make a transaction Salib or legally correct, though it will not be operative until the minor on whose behalf the transaction was entered into notifies his assent on attaining majority. But the question as to the exact nomenclature applied to such a transaction in Mahomedan jurisprudence is of no substantial importance. All that we are concerned with is its legal effect: (see Baharurraiq, Vol. 6, p. 78). The law, as regards the effect of dealings with a minor's property by a de facto guardian otherwise than in a case of absolute necessity or clear advantage to the minor, is but a corrollary of the general rule to sales by a person professing to deal with another's property, but without having legal authority to do so, i.e, by a ferooli as he is technically called; such sales generally are treated as malikuf or dependent. The subject is discussed in Hedaya, Vol. 6, Ch. 10, section of feroolea bea, or the sale of the property of another without his consent: Grady's Edition of Hamilton, p. 296, Baillie on the Muhammodan Law of Sale, pp. 218, 220, 221 and 241 Kazi Khan. Vol. 2, p. 172 (original) Talimulhaqu, Vol. 4, p. 44 (original), Radd-ul-muhtar original, Vol. 6, p. 110; Bahrurraiq (original) Vol. 5, pp. 75 and 76; Almajallah (original), p. 53; Eatwai Alamgiri original 2, Calcutta Edition, p. 235.

14. The result of the above discussion is, that according to Mahomedan jurists, in case of urgent and imperative necessity, such as those mentioned, the de facto guardian can alienate the property of the minor, no distinction being made between moveable and immoveable property. Also such a person can do acts on behalf of the minor which from their nature must necessarily be beneficial to the minor. In either class of cases, there seems to be no substantial difference between the power of such a person who has assumed the duties of a guardian without lawful authority and of a legal guardian. But there are other powers which a lawful guardian can exercise which are not within the competence of other persons. It may be observed here that an act by which the wants of the minor are met, must, to that extent, be also advantageous to the minor, and that is apparently why some of the text-writers regard acts done of necessity in the same light, as acts which are purely for the benefit of the minor: (see Fathul Mubeen, Vol. 3, Chapter on Abomination, Section Sale, p. 410).

15. It should be pointed out that, in Macnaghten's Preceedents of Muhammadan Law, it is stated in case 6, at p. 171, that a mother, who assumed the guardianship of her minor son, cannot exercise any right over the property of the minors this, as a statement of the general rule, is undoubtedly correct, but leading, authorities, as we have shown, recognize certain exceptions to this rule. The case cited by Macnaghten in which a mother sells a small portion of her minor son's property for resuming the estate and recovers judgment in a suit would seem to be a case of absolute-necessity and pure advantage to the minor. Such a sale is, however, stated to be totally illegal and inadmissible. This would seem to be in conflict with, the case in Ch. 7, p. 305, where it is laid down that, where the uncle of a minor jointly interested in the property sells-both his own share and the share of the minor, such a sale may be valid under-certain circumstances, such as when the minor's share is sold for double its value, or when there is no means of supporting him without recourse to sale of his property, or where the land is in danger of being lost, or with a view to save the minor's property from usurpation or where some similar emergency has arisen. At all events, according to the authoritative Hanafi jurists, there can be little doubt that the law is as we have stated it and the general trend of decisions of the Courts seems to be substantially to the same effect.

16. In the present case, the sale were clearly not of the character which would be upheld on the ground, either of their being made of necessity, or being by their nature necessarily, beneficial to the? minor. The sale, which is in question. In S.A No. 1416, was really made to find money for the expenses of the minor's sister's marriage and neither this nor the grounds on which the sale, which is in dispute in S.A No. 1639, was made, are justified, nor the discharge of family debts and other family purposes can be said to be justifying causes according to the rule of Mahomedan law.

17. In Appeal No. 1416 an objection was taken to the decree which directs the division of the shop into as many as 54 shares on the ground that it does not make any provision for the sale of the shop in case such a division cannot be conveniently effected. But the objection was not taken in the lower Court and we are not prepared to hold that such an order, if found to be necessary, cannot subsquently be made by the Court which passed the decree: see Bai Hirakori v. Trikamdas(18). In Appeal No. 1639 it was argued by the pleader for the applicant that the suit was barred on two grounds: firstly, even if the findings of the Court be accepted that Jamil Mohamad Bular, defendant 10, attained majority in January 1906, the suit which was instituted on 3rd January 1909 was time barred. We find that the verification of the plaint is dated 23rd December 1908, but the plaintiff did not apparently file the plaint until 4th January 1909. If the Court re-opened after the Christmas vacation on 4th January 1909, the suit would be within time and if the objection now taken had been taken in the lower Courts, this apparently would have been the answer. The question not having been raised therefore the lower Courts, and being one involving an investigation of facts, cannot be entertained for the first time in second appeal. The second ground on which it is contended that the suit is barred is that, although defendant 10 could avail himself of three years' time after attainment of majority, the plaintiff, as his assignee, cannot be allowed such extension of time. This question again was not raised in the lower Courts and, in the circumstances which are stated in paras. 15 and 16 of the judgment of the District Munsif in Suit No. 248, we do not think we should billow the objection to be raised for the first time here. The result is both the appeals are dismissed with costs.

Ayling, J.:— I agree.

S.N/R.K

18. Appeals dismissed.