(1.) This appeal is against an order of remand passed by the Subordinate Judge, Kozhikode. The plaintiff's case is that the suit property belongs to the 3rd defendant, who mortgaged it as per Ext. A2 dated March 8, 1937, to Muhammad, who assigned his interests to Abdul Kader, whose widow, Ayissabeevi Umma, acting for herself and for her two minor children (who are defendants 1 and 2 here), released the property on January 11, 1950, to the 3rd defendant as per Ext. B1, which she was not competent to do as regards the interests of the 2nd defendant and the plaintiff, as assignee of the 2nd defendant under Ext. Al dated July 29, 1958, is entitled to recover 7/24 share of the property from the defendants. The 4th defendant contended that the suit property belongs to her tarwad and had been in possession of Achuthan Nair for his maintenance when he mortgaged it with possession as per Ext. B10 on March 24, 1911, to Moidunni, whose interests she got assigned on May 31, 1913, as per Ext. B11 and that she has since then been in possession and enjoyment of the property effecting improvements thereon. The Munsiff held Ext. B1 incompetent to affect the 2nd defendant's property but found the 2nd defendant to have had no right in the suit property as the mortgage, Ext. A2, executed by the 3rd defendant in regard to property that was in the possession of the 4th defendant under Ext. B11 was itself invalid and inoperative and therefore her assignment to plaintiff conveyed no rights and dismissed the suit. On appeal the Subordinate Judge held that Ext. B1 was void and therefore incapable of ratification, that Muhammad and his assignees had, by possession of the property adversely to the 4th defendant since the date of Ext. A2, perfected their title under it and that therefore the plaintiff is entitled to enforce it to the extent of the 2nd defendant's share therein and remitted the suit for trial of the other issues. Hence this appeal by the 4th defendant.
(2.) I do not think the view of the Court below that a defacto guardian's dealing with a Mahomedan minor's property is incapable of ratification and validation by the minor after he has attained majority is right. I have observed so in Abdul Sukkoor v. Muhammed Dirar ( 1966 KLT 605 ). In Zainuddin Hossain v. Md. Abdur Rahim (AIR 1933 Calcutta 102) Monmotha Nath Mukerji and Bartley JJ. referred to Imambandi v. Mutsaddi (45 I. A. 73) and observed:
".... it is quite true that under the Mahomedan law a mother has no power as de facto guardian of her infant children to alienate or charge their immovable property. But it cannot be disputed that if the minor on coming of age ratifies the arrangement or accepts a benefit under it, be would be estopped from questioning its validity."
No doubt in Mohd. Amin v. Vakil Ahmed (1952 S. C. R.1133) the Supreme Court has used the expression "void", but it has been clarified in the same decision quoting Imambandi v. Mutsaddi (45 I. A. 73) that it is so because the "de facto guardian has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant." To say that a transferee cannot enforce against the minor is far from saying that the minor cannot accept or ratify the transfer. The challenge in the Supreme Court case was by the affected minor himself and as regards him their Lordships held his brother's alienation void. But they did not go further to say that it could not be ratified by the minor if he was so pleased. The question had been discussed by the Privy Council in Imambandi v. Mutsaddi (45 I. A. 73) wit h reference to texts in Mahomedan Law, thus:
"The subject of sales by unauthorized persons is treated in the Hedaya in a separate section entitled 'of Fazoolee Beea, or the sale of the property of another without his consent' (vol. 2, bk. 16, p. 508). It says: 'If a person were to sell the property of another without his order the contract is complete, but it remains with the proprietor either to confirm or dissolve the sale as he pleases. Shafei is of opinion that the contract, in this case, is not complete, because it has not issued from a lawful authority, for that is constituted only by property or permission, neither of which exist in this case.' It then proceeds to give the arguments of the Hanafi doctors in support of their view that the unauthorized contract is 'complete.' And then it adds: 'If the proprietor should die, then the consent of the heirs is of no efficacy in the confirmation of the fazoolee sale, in either case that is, whether the price have been stipulated in money or in goods; because the contract rested entirely on the personal assent of the deceased.
In other words, the so-called sale remains wholly ineffective until it receives the 'confirmation' of the owner, to whom alone belongs the power of 'confirming' it. If he dies before he has 'confirmed' it the transaction falls to the ground, as the right to adopt the fazuli's act does not pass to his heirs.
In the Fatawai Alamgiri the subject is treated under the designation of 'dependent sales' (vol. 3, p. 245; Baillie's Mahomedan Law of Sale, pp. 218-219): 'When a person sells the property of another, the sale is suspended, according to us (i. e., the Hanafis), for the sanction or ratification of the proprietor; and the existence of both the parties to the contract, and of the subject of sale, is a necessary condition to the validity of his sanction....If the owner should die before sanctioning the sale, sanction by his heir would not suffice to give it operation. Sanction by an owner himself renders a sale operative."
The word in the above passage translated as 'suspended' is derived from the same root as the word that has been translated in the heading as 'dependant,' and in this connection really means 'is dependant upon'; also the words 'or ratification' have been introduced by Mr. Baillie by way of explanation. The word ijazat in the original is rightly rendered into 'sanction.'
The Majma'-ul-Anhar states the rule relating to a sale by a fazuli in similar terms; it says id substance that such a sale is 'established' (takes effect) on the sanction of the malik (owner), subject to four conditions, which it specifies. And then it adds significantly that according to Shafei (the founder of the second great Sunni school of law) all dealings by an unauthorized person are absolutely void (batil) vol. 2, p. 88).
In their Lordships' opinion the Hanafi doctrine relating to a sale by an unauthorized 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."
That was a suit for possession of landed property by a purchaser from one of the widows of a wealthy Mahomendan of the shares of that widow and her two minor children brought against the other sharers who were in possession of the whole estate. No ratification by the minors on their attainment of majority was ever alleged in the case and it does not appear that the minors attained majority or entered appearance in the suit. It the circumstances their Lordships concluded "that under the Mahomedan Jaw 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 immovable property which the transferee can enforce against the infant; nor can such transferee, if let into possession of the property under such unauthorized transfer, resist an action in ejectment on behalf of the infant as a trespasser. It follows that, being himself without title, he. cannot seek to recover property in the possession of another equally without title" and dismissed the suit as regards the shares of the minors. Imambandi's case is therefore no authority to say that "a sale by a de facto guardian of the minor's property cannot be ratified by the minor on attaining majority" and the observation in Mulla's Mahomedan Law, 15th Edn., Para.364 sub-para. (6) does not seem to me right.
(3.) The challenge in Mohd. Amin v. Vakil Ahmed was by the minor himself and it was in that context that the Supreme Court declared the transfer void. What is "void" against the person affected is only "voidable" in strict terminology, for it is open to the person affected to ratify and validate it. It has been pleaded in this case that the 2nd defendant had ratified Ext. B1 by acceptance of its consideration as per Ext. B4. Counsel for the plaintiff here does not admit Ext. B4 and says that its genuineness has not been considered by the Courts below, as they thought Ext. B1 incapable of ratification.;