Jamuar, J.:— This appeal has been brought from an order dated 16-3-1950, passed by the Special Subordinate Judge of Ranchi on an application filed before him under Section 33 of the Arbitration Act, 1940, challenging tlje validity of an arbitration agreement entered into by the parties.
2. One Maula Bux had a son named Abdul Aziz and a daughter named Batulan. Abdul Aziz had two wives, Zainab and Maniran. Zainab has three sons Ahmad Ali, Abdul Karim and Idris, and two daughters, Sakina and Saioora. Maniran has two minor sons, Abdul Majid and Muhammad Zamil, three minor daughters, Abda Khatoon, Zahida Khatoon and Halima, and three major daughters, Khodeja, Moshera and Zohra. After the death of Maula Bux and his son, Abdul Aziz, there appears to have arisen a dispute in the family regarding the partition of the properties. On 20-4-1949, a deed of agreement was entered into by the family members, and Bibi Maniran, one of the wives of Abdul Aziz, had signed this deed for self and as guardian of her minor children. The deed of agreement recited that, since
“there is a dispute between the parties regarding the possession, enjoyment, partition, accounts, assets, liabilities and interest in movable and immovable properties left by the late Sheikh Maula Bux and his son late Maulavi Abdul Aziz”,
The parties desired to refer the dispute to the arbitration of certain persons named therein, and they appointed those persons as arbitrators to adjudicate upon their dipute.
3. Thereafter, on 26-10-1949, an application was filed before the Subordinate Judge of Ranchi under Section 33 of the Arbitration Act, by Batulan, Zainab and the sons and daughters of Zainab, and the opposite party to this application were Maniran and her sons and daughters. In this application, it was alleged that, as Maniran had signed the deed of agreement as guardian of her minor sons and daughters, when, in fact, she was not their guardian, and, as, under the Mahomedan Law, she, as the mother, could not be the guardian of the properties of her minor children, the agreement was wholly illegal and null and void, and would not legally empower the arbitrators to decide the dispute in question.
4. It was further alleged that, in order to avoid further harassment and expenses, it was necessary to have the validity of this agreement determined under Section 33 of the Arbitration Act, and it was prayed that the said agreement, dated 20-4-1949, may be declared to be illegal and null and void. The opposite party to this application contested the matter, and it was argued that, if it be held that the mother could not be the legal guardian of her minor children, she should be treated to have signed the deed of agreement as a de fact guardian and hence the agreement would be effective, at least, so far as the movable properties in dispute were concerned. It was also argued that, Maniran having been, later on, appointed by the Court as guardian for the minors, the defect in the agreement should be held to have been cured.
5. The learned Subordinate Judge found that, although a Mahomedan mother may be the ‘de facto’ guardian of her minor children after the death of the father, she has no authority, when she is not the executrix of the Page: 7children's father nor appointed as their guardian by him or by the Court, to enter, on behalf of the minors, into an agreement for reference of any dispute to arbitration which should affect their snares in the immovable properties of their father, and that the subsequent appointment of the mother by the Court as guardian of the minors could not validate such an agreement. The learned Subordinate Judge, accordingly, came to the conclusion that the reference to arbitration on behalf of the minors was invalid. He, however, held that, so far as the other parties to the deed of agreement were concerned, they were competent to refer the dispute to arbitration so long as the decision of the dispute amongst them did not affect the interest of the minors.
6. The learned Subordinate Judge did not himself examine the deed of agreement, and hence he said it was difficult to find whether the disputes between the parties were so interconnected that a decision of the arbitrators would affect the interest of the minors. In these circumstances, he was not prepared to hold that the entire reference to arbitration was invalid, and he ordered that the award of the arbitrators be filed, and “if the award affects the minors and cannot be severed from other provisions then only the award will be liable to be set aside”. He, therefore, found that, though the reference to arbitration on behalf of the minors was invalid, it was not invalid in so far as the other parties were concerned.
7. It is from this order that the present miscellaneous appeal was preferred by the party who had filed the application under Section 33 of the Arbitration Act, before the learned Subordinate Judge in the Court below on the ground that, in the circumstances of this case, the entire reference to arbitration should be held to be null and void as the interests of the minors in the immovable properties are not severable.
8. A preliminary objection was raised that no appeal lies from an order passed under Section 33 of the Arbitration Act. Orders which are appeal-able are enumerated in Section 39 of the Arbitration Act. An order passed under Section 33 of the Arbitration Act, does not find mention in the list of appealable orders. In — ‘Radha Kishen v. Bombay Co. Ltd.’, AIR 1943 Lah 295 (A), a question arose whether an application to challenge the validity of an arbitration agreement or to have the effect of that agreement determined falls under Section 39(4) of the Arbitration Act as an appealable order. In that case, an application in revision had been filed against such an order, and it was contended that, as an appeal lay under S. 39(4) of the Act, the application in revision should not be entertained. It was, however, held that an order passed under Section 33 of the Arbitration Act does not fall under S. 39(4), and is not an appealable order; hence, an application in revision against such an order was entertainable. I would hold that in the present case no appeal lies against the order complained against; but the appeal can be converted into an application in revision, and we have heard the matter in our revisional jurisdiction.
9. The question for determination is whether Maniran could have signed the deed of agreement as guardian of her minor children so as to bind them. A Mohomedan mother, on the death of her husband, is not a legal guardian of the properties of a minor. Under the Mahomedan Law, the following persons are entitled in the order mentioned below to be guaruians of the property of a minor: (1) the father; (2) the executor appointed by the father's will; (3) the father's father; (4) the executor appointed by the will of the father's father. In default of the legal guardians, the duty of appointing a guardian for the protection and preservation of the minor's property falls on the Judge as representing the Sovereign. A person, however, may neither be a legal guardian nor a guardian appointed by the Court but may have voluntarily placed himself in charge of the person and property of a minor. Such a person is called a de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor, and has no power to transfer a right or interest in the immovable property of the minor. Such a transfer, if made, is not merely voidable but void, since, under the Mahomedan Law, a person who has charge of the person or property of a minor without being his legal guardian, that is, 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 minor, and the question whether the transaction has resulted in a benefit to the minor is immaterial in such cases — see — ‘Mohd. Amin v. Vakil Ahmad’, AIR 1952 SC 358 (B).
10. It has been well settled in ‘Imambandi v. Mutsaddi’, AIR 1918 PC 11 (C), that under the Mahomedan Law a mother has to power as de facto guardian of her in that children to alienate or charge their immovable property. It was, however, argued by Mr. Gopal Prasad that Musamrnat Maniran, not being appointed a legal guardian of her children, could not have entered into the agreement on behalf of the minors, but, he contended, that she was a de facto guardian, and, though she could not deal with the immovable properties of the minors, she could deal with their movable properties. Learned Counsel argued that it should be held that the deed of agreement, dated 20-4-1949, is binding upon the minors so far as the movable properties were concerned, though it may not be binding in respect of the immovable properties.
11. A perusal of the deed of agreement, to which reference has already been made, shows that the matter referred to the arbitrators was the dispute between the parties regarding, amongst others, possession, enjoyment, partition, liabilities and interest in both movable and immovable properties. The mother, as de facto guardian, is not competent to enter on behalf of her minor children into an agreement to refer the dispute to arbitration, the agreement being one which will necessarily, if acted upon involve dealings with the immovable properties of the minors. As the deed of agreement stands, the movable properties cannot be severed from the immovable properties. The agreement to refer the dispute to arbitration was in respect of all the properties, and it is not possible to find it valid in respect of a part and invalid in respect of the rest. If the deed of agreement is void, it cannot be void only qua the minors but would be void altogether Page: 8qua all the parties including those who were majors.
12. In this view of the matter, clearly the decision of the arbitrators will affect the interest of the minors in the immovable properties as well. In the circumstances, therefore, the entire reference to arbitration must be held to be invalid.
13. The learned Subordinate Judge clearly failed to exercise jurisdiction vested in him by law and a revision under Section 115 of the CPC, is competent. I would, accordingly, set aside the order of the learned Subordinate Judge, dated 16-3-1950, and hold that, in the circumstances of this case, the deed of agreement, dated 20-4-1949, is a nullity and void.
14. I would, therefore, allow the application with costs; hearing fee two gold mohurs.
15. Ramaswami, J.:— I agree.
B/V.R.B
16. Application allowed.