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Citation Codes
Equivalent Citations
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Case Number
Attorney(S)
  • Messrs. Ch. Raghava Rao, M. Chinnappan Nair and S. Rajaraman for the Appellant.
  • Messrs. J. Krishna Rao and K. Appu Menon for the Respondents.
Judges
  • Wadsworth, J.
Acts
  • S. 29 of the Guardian and Wards Act.
  • S. 41 of the Specific Relief Act
  • S. 68 of the Contract Act,
  • S. 41, Specific Relief Act,
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
  • Messrs. Ch. Raghava Rao, M. Chinnappan Nair and S. Rajaraman for the Appellant.
  • Messrs. J. Krishna Rao and K. Appu Menon for the Respondents.
Judges
  • Wadsworth, J.
Acts
  • S. 29 of the Guardian and Wards Act.
  • S. 41 of the Specific Relief Act
  • S. 68 of the Contract Act,
  • S. 41, Specific Relief Act,
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This appeal arises from a suit to recover money alleged to be due on a mortgage executed by the 2nd defendant, who was the mother of the 1st defendant (then a minor). Both defendants are Muhammadans and the 2nd defendant purported to execute the mortgage as the guardian of the 1st defendant. The mortgage contains a personal covenant by the 2nd defendant both on her own behalf and on behalf of the minor.

The property subject to the mortgage originally belonged to the 2nd defendant's husband. In 1917, shortly before his death, he transferred the property to the 2nd defendant as guardian of the minor, directing her to discharge the mortgage then subsisting and waiving in favour of the minor the receipt of the balance of the consideration. The assignment (Ex. D) was in substance a gift to the daughter, with the mother empowered to accept the gift on behalf of the minor.

The then mortgagee and the jenmi obtained decrees against the minor. To pay those decree debts, the mother (2nd defendant) mortgaged the suit property and another item to one Koru Panikkar, purporting to act on behalf of the minor 1st defendant. Koru Panikkar obtained a decree for the balance due and advertised the suit property for sale. To avert that sale the 2nd defendant executed the suit mortgage deed; out of Rs. 800 consideration, Rs. 746-14-7 was paid to Koru Panikkar in satisfaction of his decree.

Procedurally, the lower appellate Court found that the plaintiffs could not obtain a mortgage decree based on a mortgage executed by the mother of a Muhammadan minor as de facto guardian, relying on the Privy Council decision in Imambandi v. Mutsaddi. The learned Subordinate Judge, however, held that the plaintiff was entitled to a decree on the personal covenants of the 2nd defendant both in her personal capacity and as guardian of her minor daughter. The 1st defendant appealed to the Court whose opinion is summarized here.

Legal Issues Presented

  1. Whether a mortgage executed by the mother acting as de facto guardian of a Muhammadan minor can bind the minor in respect of immovable property.
  2. Whether a de facto guardian's borrowing to save a minor's property from sale (or to prevent a suit) can be treated as an "act arising from the wants of an infant" (or as "necessaries") so as to bind the minor.
  3. Whether the mother was a legal guardian by virtue of delegation from the father and thereby capable of binding the minor for the purposes in question.
  4. Whether S.68 of the Indian Contract Act (necessaries) or S.41 of the Specific Relief Act can be invoked to make the minor's estate liable or to require the minor to surrender benefits received under a contract found to be void.

Arguments of the Parties

Respondent / Plaintiffs' Arguments (as presented in the opinion)

  • The Subordinate Judge relied on the decision in K. Venkatarayudu v. A. Khasim Sahib to support the view that the mother of a Muhammadan minor could bind the minor by executing a promissory note (or similar instrument) to meet an emergency or to prevent suit.
  • It was contended on behalf of the respondent that the mother had originally been appointed guardian by the father and charged with a duty of freeing the property from encumbrance, and therefore ought to be treated as a legal guardian (authority relied on: Shaik Nawab Jan v. Safiur Rahman).
  • It was argued that S.68 of the Contract Act applied, i.e., that money advanced to save a minor's property from imminent sale could amount to "necessaries" and thus bind the minor's estate (authority relied on: Mahmud Ali v. Chinki Shah).
  • It was further contended that S.41 of the Specific Relief Act might require the 1st defendant to surrender the benefit if the contract is treated as void; Sinaya Pillai v. Munisami Ayyan was cited in this connection.

The opinion contains a detailed account of these contentions advanced on behalf of the respondent. It does not set out a separate, detailed list of the appellant's specific argumentation in the same structured form, beyond the appellant's bringing the present appeal against the Subordinate Judge's holding.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Imambandi v. Mutsaddi Establishes limits on the powers of a de facto guardian of a Muhammadan minor; a de facto guardian can bind the minor only by acts falling within the Hedaya category of "acts arising from the wants of an infant". The Court treated Imambandi as decisive authority that a de facto guardian cannot bind a Muhammadan minor in relation to immovable property except in cases falling within that narrow category; the court relied on it to hold the mortgage and associated personal obligations did not bind the minor.
K. Venkatarayudu v. A. Khasim Sahib Held (per Beasley C.J.) that the mother of a Muhammadan minor could bind the minor by executing a promissory note in renewal of one executed by the deceased father, to meet an emergency. The Subordinate Judge relied on this decision to sustain personal covenants; the Court in the present opinion doubted the correctness of that decision and noted it did not appear to have cited authority nor to have taken Imambandi into account.
Mata Din v. Ahmad Ali Privy Council left open the question of a de facto guardian's power of sale for necessity. The decision was mentioned as background; the Court noted that Mata Din left the question open but that Imambandi subsequently decided the guardian's powers more conclusively.
Mahmud Ali v. Chinki Shah Held that money advanced by a creditor to save a minor's property from imminent sale for arrears of revenue can come within the scope of "necessaries" under S.68 of the Contract Act. The Court referred to this authority when considering whether the borrowing to save the minor's property could be treated as necessaries; the Court observed that whether such borrowing is a necessary is largely a question of fact and found the record did not justify treating the borrowing in the present case as necessary.
Shaik Nawab Jan v. Safiur Rahman Upheld that a Muhammadan father can delegate certain functions as guardian (cited for the proposition that a father may authorise another relative to accept a gift on behalf of a minor). The Court accepted that, even if the decision is correct, it only goes to the validity of the father's gift and an authorised acceptance, and does not amount to constituting the mother as a legal guardian for all purposes after the father's death; the Court rejected the contention that the mother was thereby a legal guardian able to bind the minor.
Sinaya Pillai v. Munisami Ayyan Considered in relation to whether a defendant can be required to restore benefits received under a contract not sanctioned as required by S.29 of the Guardians and Wards Act; the case proceeded on the basis that the contract was voidable and beneficial. The Court distinguished this authority: it observed that Sinaya Pillai concerned a contract held to be beneficial and voidable and that the restoration ordered there proceeded on equitable grounds; it was not analogous to the present case of a void transaction which the minor can ignore.
Hanumantha Rao v. Sitharamayya (obiter) Contains an obiter dictum by Krishnaswami Ayyangar J. tentatively raising whether S.41 of the Specific Relief Act would equally apply when the defendant seeks cancellation. The Court noted the obiter dictum but considered it unnecessary to decide the question in the present case.

Court's Reasoning and Analysis

The Court's analysis proceeded by reference to the authorities on the powers of a Muhammadan guardian, with particular reliance on the Privy Council judgment in Imambandi v. Mutsaddi. The Privy Council had considered the categories in the Hedaya and indicated that an unauthorised person who happens to have charge of a Muhammadan minor can only bind the minor by acts which fall within the second category: "Acts arising from the wants of an infant, such as buying or selling for him on occasions of need, or hiring a nurse for him or the like."

The Court reasoned that, although the question of borrowing by a de facto guardian was not directly before the Privy Council in Imambandi, the broader consideration of guardians' powers in that case supports the view that a de facto guardian cannot validly bind the minor by a personal debt unless it can be brought within the "wants of the infant" category.

Applying that principle to the facts, the Court considered whether the 2nd defendant's borrowing of Rs. 746-14-7 from the plaintiffs to save the minor's property from Court sale amounted to an "act arising from the wants of the infant." The Court discussed Mahmud Ali v. Chinki Shah, where money advanced to save a minor's property from imminent sale for revenue arrears was held to be within the concept of "necessaries" under S.68 of the Contract Act. However, the Court emphasised that whether such borrowing constitutes "necessaries" is largely a question of fact and concluded on the materials before it that the borrowing in this case was not shown to be to meet a sudden emergency nor shown to be necessary.

The Court further reasoned that under Muhammadan law the management of a minor's immovable property is contemplated to be in the hands of the legal guardian, not by an unauthorised person who merely happens to have the child's charge. While a mother or relative may have the legal right to supply the child's personal wants and could pledge the child's personal credit for that purpose, permitting an unauthorised person to bind the minor for obligations affecting immoveable property would impose duties on that person which the law does not recognise.

The Court considered the respondent's separate contentions: that the mother had been appointed guardian by the father (relying on Shaik Nawab Jan v. Safiur Rahman), that S.68 of the Contract Act applied, and that S.41 of the Specific Relief Act required surrender of benefits. The Court held that even if the father had delegated authority to accept the gift, that authority would lapse on the father's death and would not amount to constituting the mother as the legal guardian for all purposes after his death. On S.68, the Court found the record did not justify a finding of necessity. Regarding S.41 (and the related equitable arguments relying on Sinaya Pillai), the Court distinguished the authorities cited and held that this was not a case of a minor plaintiff seeking cancellation; rather the plaintiffs sought to enforce or extract benefit from a void contract. The Court concluded that a minor whose property has been made subject to a void mortgage by an unauthorised person is entitled to ignore the mortgage and the mortgagee cannot in law claim benefit against the minor. The Court considered it improper to compel the minor defendant to ask for cancellation and to restore benefits, as that would allow the mortgagee to use the void contract to enforce part performance against the minor.

Holding and Implications

Holding: The Court allowed the appeal, awarded costs to the appellant here and in the lower appellate Court, and restored the decree of the trial Court.

Implications for the parties: As a direct consequence of this decision the plaintiffs are not entitled to enforce the mortgage against the 1st defendant (the minor) on the basis of the mortgage executed by the 2nd defendant as de facto guardian, and the 1st defendant may ignore the void mortgage in respect of her estate. Costs were awarded to the appellant in this Court and in the lower appellate Court.

Broader implications: The opinion rests on existing authorities (notably Imambandi v. Mutsaddi) and applies those principles to the facts before the Court. The opinion itself does not elaborate broader jurisprudential consequences beyond its application of those precedents to the present facts.

End of summary (based exclusively on the provided opinion).

Show full summary ...

    Kunhibi Alias Beebi Umma v. Kalliani Amma And Others S

    This appeal arises out of a suit to recover money alleged to be due on a mortgage executed by 2nd defendant, the mother of the 1st defendant who was then a minor. Defendants 1 and 2 are Muhammadans and 2nd defendant purported to execute the mortgage as the guardian of the 1st defendant. The mortgage contains a personal covenant by the 2nd defendant both on behalf of herself and on behalf of the minor. The property bound by the mortgage belonged originally to 2nd defendant's husband, who in 1917 shortly before his death transferred it to the 2nd defendant as guardian of the minor, directing her to discharge the mortgage then subsisting and waiving in favour of the minor the receipt of the balance of consideration. In substance this assignment (Ex. D) is a gift to the daughter, the mother being empowered to accept the gift on behalf of the minor daughter.

    The then mortgagee and the jenmi both got decrees against the minor and to pay off these decree debts the mother (2nd defendant) mortgaged the suit property and another item to one Koru Panikkar purporting to act on behalf of the minor 1st defendant. Koru Panikkar eventually got a decree for the balance due on his mortgage and advertised the suit property for sale. It was to avert this sale that the 2nd defendant executed the suit mortgage deed and out of Rs. 800 which was the consideration, a sum of Rs. 746-14-7 was paid to Koru Panikkar in satisfaction of his decree.

    The lower appellate Court has found that the plaintiffs cannot get a mortgage decree on the strength of a mortgage executed by the mother of a Muhammadan minor, as de facto guardian. This finding is undoubtedly correct in view of the decision of the Privy Council in the leading case of Imambandi v. Mutsaddi(1). The learned Subordinate Judge held, however, that the plaintiff was entitled to a decree on the personal covenants, not only of the 2nd defendant herself, but also of the 2nd defendant as guardian of her minor daughter 1st defendant. The 1st defendant appeals.

    The learned Subordinate Judge relies on the decision of Beasley C.J in K. Venkatarayudu v. A. Khasim Sahib(2), where the learned Chief Justice held that the mother of a Muhammadan minor could bind the minor by executing a promissory note in renewal of one executed by the deceased father of the minor, for the reason that this was the proper way of meeting the emergency arising when a suit was threatened on the original bond. The correctness of this decision is doubted by Sir Dinshaw Mulla in his “Muhammadan Law,” 11th Edition page 268. The learned Chief Justice does not quote any authority in support of his decision and though he refers to the fact that the Privy Council in Mata Din v. Ahmad Ali(3), left open the question of a de facto guardian's power of sale for necessity, his attention does not appear to have been drawn to Imambandi's Case, which subsequently decided that no such power could be validly exercised over the immoveable property of a Muhammadan minor.

    Now the judgment of the Privy Council in Imambandi's Case contains a very elaborate consideration of the authorities on the powers of a Muhammadan guardian or person acting as such. Their Lordships point out that an unauthorised person who happens to have charge of a Muhammadan minor can bind the minor only by acts falling within the second of the three categories enumerated in the Hedaya viz., “Acts arising from the wants of an infant, such as buying or selling for him on occasions of need, or hiring a nurse for him or the like.” Though the question of the de facto guardian's powers of borrowing was not actually before their Lordships for decision the whole question of the powers of guardians was considered and it must, I think, be taken as settled that the de facto guardian cannot bind the minor with a personal debt unless it can be brought under the category of ‘acts arising from the wants of the infant’.

    Can it be said that the act of the 2nd defendant in borrowing Rs. 746-14-7 from the plaintiffs to save her minor daughter's property from the Court sale was an “act arising from the wants of the infant”. My attention has been drawn to the case of Mahmud Ali v. Chinki Shah, where it was held that money advanced by a creditor to save a minor's property from imminent sale for arrears of revenue comes within the scope of “necessaries” in S. 68 of the Contract Act, the term not being restricted to the elementary requirements of the minor such as food and clothing. It seems to me that whether a borrowing to save property from sale or to prevent a suit from being filed is a borrowing for “necessaries” must always be largely a question of fact. But in the case of a Muhammadan minor, it must be remembered that the law does not contemplate the management of the minor's immoveable property by anyone other than the legal guardian. The mother or other relative looking after the child has a legal right to supply that child's personal wants and presumably for that purpose could pledge the child's personal credit. But when it is a question of a debt affecting immoveable property, to permit the unauthorised person to bind the minor with obligations arising from a duty to save that property from danger is in fact to impose on that unauthorised person a duty which the law does not recognise. It may be that in a sudden emergency, when there is no time to employ a more regular procedure, the mother might be justified in incurring a temporary debt binding the minor to avert a grave and unanticipated danger to his property. But I doubt whether any such obligation could be deemed one “arising from the wants of the infant” when there is time to adopt the proper procedure of calling in the aid of the legal guardian, if any, or of obtaining an order of the Court for the appointment of a legal guardian. In my opinion and on the facts of the present case, it is not established that the act of the 2nd defendant in borrowing Rs. 746-14-7 from the plaintiffs to discharge the mortgage decree was an act done to meet a sudden emergency or that there was no time to adopt a legal procedure for binding the minor. In the absence of such circumstances, I am of opinion that a borrowing on the personal credit of the minor cannot be deemed to be an “act arising from the wants of the infant” and that such a borrowing cannot bind the minor's estate. I may add that the decree which threatened the minor's property was itself based on a mortgage executed by the 2nd defendant as guardian of her minor daughter—a mortgage presumably subject to the same infirmities as that which forms the basis of the present suit. This is an additional reason for doubting whether the borrowing was really essential to the welfare of the minor.

    Various contentions have been advanced on behalf of the respondent by way of showing that the minor's property can be held liable for this debt even apart from the power of the mother as de facto guardian to incur the debt. Firstly, it is argued that the mother was originally appointed as guardian by the father and charged with a duty of freeing this property from its encumbrance and that she is therefore a legal guardian. The case of Shaik Nawab Jan v. Safiur Rahman is cited as authority for the proposition that a Muhammadan father can delegate his functions as guardian. Assuming that this decision is correct, it goes no further than to hold that a gift by a Muhammadan father to his minor child is not invalidated because the father authorises another relative to accept the gift on behalf of the minor. So much being granted, it would follow that the gift to the first defendant was validly accepted by the 2nd defendant by reason of the authority conferred upon her for that purpose by the father. But this does not amount to the constitution of the mother as legal guardian for all purposes or after the father's death. If her authority is a delegated authority it will lapse on the death of the delegator whose legal powers pass on death to another.

    Next it is argued that S. 68 of the Contract Act applies. This contention was not raised in either of the Courts below, as it should have been, depending as it does largely on matters of fact. But I think that it follows from the considerations set forth above that the materials available on the record do not justify a finding that this borrowing was necessary, though it was probably intended to be for the benefit of the minor.

    It is further contended that S. 41 of the Specific Relief Act applies and that the 1st defendant must surrender the benefit, if the contract is to be treated as void. With reference to this contention, it must be observed that this is not a case of a minor seeking as plaintiff to cancel a void contract. In the present case the plaintiffs are seeking to enforce a void contract or at least to use this void contract as a lever to extract from the minor defendant a refund of the benefit which she has received. The case of Sinaya Pillai v. Munisami Ayyan has been quoted as authority for the proposition that a defendant can be made to restore the benefit which he has received when resisting a suit on a contract not made with the sanction of the Court as required by S. 29 of the Guardian and Wards Act. But that was a case of a contract found to be beneficial and the decision expressly proceeds on the basis that the contract was not void but only voidable and the order to restore the benefit proceeded not on S. 41 of the Specific Relief Act but on general grounds of equity. My attention has been drawn to an obiter dictum of Krishnaswami Ayyangar J. in Hanumantha Rao v. Sitharamayya, wherein the learned Judge tentatively raises the question whether S. 41, Specific Relief Act, would not equally apply when it is the defendant who seeks to cancel the instrument. It seems to me unnecessary to go into the question for the purpose of the present case where the defendant does not have to ask for the cancellation of the mortgage, but can merely plead that it is a void transaction which he is entitled to ignore. 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 authorised to bind the minor would be given a weapon whereby he could force the minor to honour the contract in part. 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 the 1st defendant either under S. 41, Specific Relief Act or on general equitable grounds.

    In the result, therefore, I allow the appeal with costs here and in the lower appellate Court and restore the decree of the trial Court.

    Leave granted.

    Appeal allowed.

    N.R.R

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    Comments

    Kunhibi Alias Beebi Umma v. Kalliani Amma And Others S
    (Mar 31, 1939)