1. This appeal arises out of a suit to recover money alleged to be due on a mortgage executed by second defendant, the mother of the first defendant who was then a minor. Defendants 1 and 2 are Muhammadans and second defendant purported to execute the mortgage as the guardian of the first defendant. The mortgage contains a personal covenant by the second defendant, both on behalf of herself and on behalf of the minor. The property bound by the mortgage belonged originally to second defendant's husband, who in 1917 shortly before his death transferred it to the second 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.
2. The then mortgagee and the jenmi both got decrees against the minor and to pay off these decree debts the mother (second defendant) mortgaged the suit property and another item to one Koru Panikkar purporting to act on behalf of the minor first 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 second 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.
3. 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 (1918) 35 M.L.J. 422 : L.R. 45 IndAp 73 : I.L.R. 45 Cal. 878 . The learned Subordinate Judge held, however, that the plaintiff was entitled to a decree on the personal covenants, not only of the second defendant herself, but also of the second defendant as guardian of her minor daughter first defendant. The first defendant appeals.
4. The learned Subordinate Judge relies on the decision of Beasley, C.J., in K. Venkatarayudu v. A. Khasim Saheb (1935) M.W.N. 943 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. Ahmed Ali (1912) 23 M.L.J. 6 : L.R. 39 IndAp 49 : I.L.R. 34 All. 213 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 easel, which subsequently decided that no such power could be validly exercised over the immovable property of a Muhammadan minor.
5. Now the judgment of the Privy Council in Imambandi's casei 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, namely:
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.
6. 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, betaken 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'.
7. Can it be said that the act of the second 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 I.L.R.(1929) 52 All. 381, 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 Section 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 immovable property by any one 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 immovable 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 second 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 second 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.
8. 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 Nazvab Jan v. Safiur Rahman (1917) 25 C.L.J. 286, is cited as authority for the proposition that a Muhammad an 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 second 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.
9. Next it is argued that Section 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.
10. It is further contended that Section 41 of the Specific Relief Act applies and that the first 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 Sinia Pillai v. Munisami Aiyar (1899) 9 M.L.J. 64 : I.L.R. 22 Mad. 289 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 Section 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 Section 41 of the Specific Relief Act but on general grounds of equity. My attention has been drawn to an obiter dictum of Krishnaswami Aiyangar, J., in Hanumantha Rao v. Sitharamayya : AIR1939Mad106 , wherein the learned Judge tentatively raises the question whether Section 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 con tract 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 first defendant either under Section 41, Specific Relief Act, or on general equitable grounds.
11. 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.
12. Leave granted.