Abdur Rahim, J.
1. In both these appeals one common question arises whether the sale of a minor's property by his mother acting as defacto guardian is valid under the Mahomedan Law and if so, under what conditions. In one case Appeal No. 1416, the sale deed alleges that the shop which was sold has 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 the 8th defendant 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 the 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 S.A. No. 1639 of 1910 the allegation in the plaint is that the minor's mother who was managing the family affairs and maintained the children, utilised 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 Pathumabi v. Vittil Ummacha I.L.R. (1902) M. 734 Durgaji Row v. Fakir Sahib I.L.R. (1906) M. 197 and Abdul Khader v. Chidambaram Chettiar I.L.R. (1908) M. 276 have held in both the suits that the sales even if the allegation 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 respsct 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 on the question which must be noted first; one of these is reported in Kali Duttjha v. Abdul Ali I.L.R. (1888) C. 627. That was the case of a guardian and with respsct 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' Chapter VIII Clause 14 but they, upheld the transaction in question in that case on the ground that there was a dispute as to the title of the minor to the property and therefore the rule laid down in Macna-ghten did not apply and also, on the ground that the sale was for the benefit of the minor. In Mata Din v. Sheikh Ahmed Ali 16 C.W.N. 338 the sale was effected by the minor's mother who was custodian of the minor's person and was in possession of the 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 the legal power to deal with the estate. They declared the sale to be 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 necessary. 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 viz., whether a sale under the circumstances found there would be void or voidable. Their Lordships reframed 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 minor son's immove able property even for necessity; but though much weight must of course be attached to the 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 Pathumabi v. Vittil I.L.R. (1902) M. 734 that the principles of the Hindu Law relating 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 the ruling has been followed in Durgoji Bow v. Fakir Sahib I.L.R. (1906) M. 197 and Abdul Kadir v. Chidambaram Chettiar I.L.R. (1908) M. 276. In none of these cases was any definite opinion expressed on the general question, how far an alienation by a def acto guardian which is made for necessity and for the benefit of the minor is valid. Nor was this question decided in Second Appeal No. 1443 of 1907 an unreported judgment of Mr. Justice Benson and one of us. It was held in A liyamma v. Kunhumad I.L.R. (1911) M. 527 that a guardian's powers in respect of immoveable property of the ward are very restricted in Mahomedan Law and that 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 Judges followed the Privy Council ruling already mentioned (16 Cal.) 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 confine within very narrow limits the powers 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 Musamat Bahshun v. Musamat Doolhine 12 W.R. 337 a sale by a guardian of a minor's property was held not to be permitted by the Mahomedan Law except for urgent necessity. In Bhutnath Dey v. Ahmed Hosain I.L.R. (1885) C. 417 a mortgage by a person purporting to act as guardian was held to be void as it was not shown that the money raised by the mortgages and utilised for paying arrears of rent could not have been raised otherwise than by mortgaging the minor's property. Similarly in Morjna Bibi v. Banltu Behari Biswas I.L.R. (1902) C. 437 Justices Bampini and Pratt 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 the Muhamadan Law. In Mafazzal Hosain v. Basid Sheikh I.L.R. (1906) C. 36 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 Mr. Justice Woodroffe was inclined to place the validity of such transaction also on the 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 29 Calcutta on the ground that it was not shown that the transaction was for the benefit of the minor. Chief Justice Maclean and Mr. Justice Caspersz in a case reported in Ram Charan Sanyal v. Anukul Chandra Acharjee I.L.R. (1906) C. 65 followed the ruling of Bampini and Woodroffe JJ. in the last mentioned case and held that a sale by the mother as a defacto guardian of his 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 29 Calcutta they pointed out that the effect of that ruling is considerably modified by the ruling in I L.R. 34 C. 36. In fact, however, they have laid down a broader proposition than what forms the basis of Bampini and Woodroffe JJ's judgment in I.L.R. 34 C. 36 placing the ruling on general grounds of justice, equity and good consicence. But with all deference to the learned Judges there can be no doubt that the question must be determined in accordance with the provision of Muhamadan Law. Moreover it is difficult to see how 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 principle of justice and good conscience to support the transaction itself though no doubt such consideration 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 Bampini 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.
4. In the Allahabad High Court in Hassan Ali v. Mehdi Hasain I.L.R. (1877) A. 533 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. Musam mat Zakia I.L.R. (1875) A. 57 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 I.L.R. (1886) A. 324 there are certain general observations of Mr. Justice Mamjod to the effect that the powers of alienation such as those enjoyed by Hindu widow are not known to the Muhammadan Law, a Muhammadan widow being merely a co-heir with her childern and has not the authority of a guardian with respect to their property and Chief Justice Edge, in Nizamuddin Shah v. Anandi Prasad I.L.R. (1896) A. 373 set aside a mortgage executed by a Muhammadan minor's uncle, which was apparently not created for necessity on the ground that he had no power of alienation over the property.
5. The decisions of the Bombay High Court were brought to our notice; Baba v. Shivappa I.L.R. (1895) B. 199 and Hurbai v. Hirajee Byramjees I.L.R. (1895) B. 116 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 rulings enunciated the general principle that a mother, not being a legal guardian cannot bind the estate of the minor by any act of hers.
6. In this state of rulings it becomes necessary to examine the text books on Muhammadan Law to ascertain how a transaction which is entered into by a person who is not the legal guardian but is in fact acting as guardian is regarded in Muhammadan Law.
7. We may take it that the powers of such a person cannot be recognised 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, the dealings of a de fucto guardian with the minor's estate will be upheld. It seems to us to be quite clear from authoritative pronouncement of Muhammadan Jurists as well as upon the principles of Muhammadan Jurisprudence that while the general rule is that the dialings 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 principles of Muhammadan 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,Grady's Edition) in laying down that a person who has the protection of an orphan may lawfully take possession of 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, Ambuvalay Lakena 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. II. Act arising from the wants of an infant, such as buying or selling for him on occasions of need; 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 or the like'; which powers belong to the maintainer of the infant, whether he be the brother, uncle or (in the case of a foundling) the mootakit or take up or the mother provided she be maintainer 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. III. 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 mootakit, 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. An infant therefore is empowered in regard to these acts (provided he be discreet) or any person under whose protection he may happen to be. It should be observed that the sale and purchase mentioned as belonging to the 1st 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 tor 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 minor 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, are not confined to dealings with any particular form of property of the minor so far as it can be gathered from the language of the Hedaya and other text-books which will be presently noticed and the very principle upon which the validity of such acts is based precludes the idea of any such limitation. The rule enumerated by the Hedaya is accepted as good law by the other jurists of the Hanafi School. Imam Zeilal in his well known commentary on Kauz, viz, Tabinul Haquars, Vol. 6 at page 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 a minor is of three kinds:--' (1) What must be advantageous to the minor and such power 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 bo done by the infant himself if he is of age of discretion; (2) what is absolutely injurious such as divorcing the minor's wife or emanicipating a slave--such authority is not recognised in any one; (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 purposes 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. 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 Alka fi. The hiring of a nurse belongs to the first category; and 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.
8. In Majunianiamber which is a commentary of Mooltaka-I-Abhar it is pointed out that, according to Ashshafai and Matik and de facto guardian can buy or sell for the minor only with the permission of the judge but the author does not doubs that the Hanafi Law which is the law governing the parties in this suit, is, as stated in the text of Maltaqua in the same terms as in the Hedaya and Kavz. 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 Mahammadan Law regarding the powers of an executor in connection 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 recognised in such matters as are of urgent necessity and purely for, the benefit of the estate. Thus in the Hedaya (see Hamilton's Translation Grayd's Edition, Vol. IV, Chapter VII. Page 699,) the matters in which one of the two joint executors can act singly are thus enumerated--payments of funeral charges or for purchasing victuals or clothes for the infant children of the testator, restoring a deposit, preserving the estate, discharging the debts, acceptance of a gift 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. We may also point out here that according to the general principles of Mahammadan Law sale of a minor's property by an authorized 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 minor's property without any justifying cause is regarded as Mauguf 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 operative 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; the effect of his decision will relate back to the date of the 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 Sahebe or legally correct 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 or legally correct, though it will hot be operative until the minor on whose behalf the transaction was entered into notifies his assent on attain ing his majority. Bat the question as to the exact nomenclature applied to such a transaction in Muhammadan Jurisprudence is of no substantial importance. All that we are concerned with is its legal effect. (See Bahrurraig, Vol. VI, Page 78.) The law as regards the effect of dealings with the 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 corrolory 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 furuli as he is technically called; such sales generally are treated as malikuf or dependent. The subject is discussed in Hedaya, Vol. II, Chapter X section ' of Peroolea Bea or the sale of the property of another without his consent,' Grady's Edition of Hamilton, page 296, Bailie on the Mahammadan Law of Sales, pages 218, 220, 221 and 249.; Quddi Khan, Vol. II, page 172 (Original) Tale 'Mulhaquiq, Vol. IV, page 44 (Original) Raddul Mooktar (Original Vol. IV, page 110, Bahrurraig)(Original) Vol. IV, pages 75 and 76; Almajalal (Original) page 53; Fatwa Algamiri, Vol. II, Calcutta Edition, page 255. The result of the aboVe discussion is that according to Mahamadan Juirsts, 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 behelf 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 in the competence of other persons. It may be observed here, that an act by which the wants of the minor, are met must to the extent be also advantageous to the minor and that is apparently why some of the writers regard acts done of necessity in the same light as acts which are purely for the benefit of the minor, (See Father Moyeen, Vol. III, Chapter on Abominations, Section Sale, page 410).
9. It should be pointed out that in Macnaghten's Precedents of Mahomadan Law it is stated in Case 6 at page 171 that a mother who has assumed the guardianship of her minor son cannot exercise any right over the property of the minor. This as a statement of the general rule is undoubtedly correct but the leading authorities as we have shown, recognise certain exceptions to this rule. The case cited by Macnaghten in which a mother sells portion of her minor son's property for resuming the estate and recovers judgment in the 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 Chapter VII, page 305 where it is laid down that where the uncle of the 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 where 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 when 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 the decisions of the Courts seems to be substantially to the same effect.
10. In the present cases neither of the sales were clearly 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 ground on which the sale which is in dispute in S.A. No. 1639 is justified, nor the discharge of the family debts and other family purposes, can be said to be justifying causes according to the rule of Mahamadan Law.
11. In Appeal No. 1416 an objection was taken to the decree which directs the division of the shop in 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 Courts and we are not prepared to hold that such an order, if found to be necessary, cannot subsequently be made by the Court which passed the decree (see Bai Hirakore v. Trikamdas Hirachand I.L.R. (1907) B. 103. In Appeal No. 1639 it was argued by the pleader for the appellant that the suit was barred on two grounds. Firstly even if the findings of the courts be accepted that Jamal Muhamad Pulvar the 10th defendant attained majority in January 1906, the suit which was instituted on the 3rd January 1909 was time barred. Plaint is dated 23rd Decembgr 1908 but the plaintiff did not apparently file the plaint until 4th January 1909. If the Court re-opened after the Christmas vacation on the 4th January 1908 the suit would be within time and if the objection now taken had been taken in the Lower Court this apparently would have been the answer. The question not having been raised before the Lower Court and being one involving an investigation of facts cannot be entertained for the first time in Second Appeal.
12. The second ground on which it is contended that the suit is barred is that although the 10th defendant could avail himsslf of three years time after the attainment of majority, the plaintiff as his assignee cannot be allowed such extention of time. This question again was not raised in the Lower Courts and in the circumstances which are stated in paragraphs 15 and 16 of the judgment of the District Munsiff in Suit No. 248, we do not think we should allow the objection to be raised for the first time here.
13. The result is both the appeals are dismissed with costs.