(1) The suit out of which this second appeal arises was instituted by the appellants to set aside a sale dated 2-10-1956 of a piece of immoveable property belonging to them, executed by them in favour of the respondents for a consideration of Rs. 500. The property admittedly belonged to the first plaintiff's husband. Plaintiffs 2 to 4 are his sons of whom plaintiffs 3 and 4 were then minors. There belonged to the Muslim community. Plaintiffs 3 and 4 were in the conveyance, represented by their mother as their guardian. The plaintiffs asked for cancellation of the sale on the ground that the mother as a de facto guardian of plaintiffs 3 and 4 had no right to make a conveyance of immoveable property on their behalf and that such a conveyance was void. The trial court accepted this contention and set aside the sale but directed the plaintiffs to pay a sum of Rs. 500 to the defendants as a condition to their getting back possession of the property. The defendants appealed against that judgment and the lower appellate court took the view that the conveyance was void only in so far as it purported to convey the shares of the two minors as well and that it was good as a conveyance of the shares of the remaining executants. On that view, the lower appellate court granted a preliminary decree for partition and separate possession of 21/40 shares representing the shares of plaintiffs 1 and 2. The lower appellate court also considered that the sum of Rs. 500 paid as price must be deemed to be the value of the shares of plaintiffs 1 and 2. The plaintiffs, in so far as the lower appellate court modified the decree of the trial court were aggrieved and have come upto this court in second appeal.
(2) It is well settled that a conveyance of immoveable property by a de facto guardian of a muslim minor is void and is not binding on the minor. Under the Mahomedan law, a mother of a minor is not his legal guardian and she will have no power to act on behalf of the minor and make a valid conveyance of his property. This has been held by the Privy Council as early as in Imambandi v. Mutsaddi, 45 Ind App 73: ILR 45 Cal 878 : (AIR 1918 PC 11). But the question is where a conveyance is effected by three or four persons of whom one or more is a minor represented by his de facto guardian, & the conveyance is void in so far as it affected the minor or minors, it could be held that the sale is void as against the other executants as well who were sui juris and competent to make a conveyance of their shares in the immovable property. Mr. Sharfuddin for the appellants argues that if the conveyance is void qua the minor represented by the de facto guardian, it is void as a whole. He says that the contract is one and entire and if a part of it has no effect, the other part cannot stand by itself and be operative. In support of this proposition, learned counsel relies on Pratap Sing v. Sant Kaur, ILR (1938) 19 Lah 313: (AIR 1938 PC 181) and Md. Amin v. Vakil Ahmad, . In the first of
these cases, the Privy Council held that where an agreement was entered into with two sisters one of whom was represented by a guardian who was neither appointed by the court nor could claim to be her guardian under her personal law, the agreement was void not only against the minor but was only unenforceable against her elder sister, who was a major. The Privy Council observed:
"The rule of law is firmly established that a minor is not competent to make a contract, and as Gujar Singh had no authority to enter into a contract on her behalf, the deed of settlement must be held to be a void transaction as against her".
(3) It was argued before the Privy Council that the transaction should be upheld as a family settlement, but the Board rejected the contention by pointing it out that by describing the contract as a family settlement the parties could not claim an exemption from the law governing a person to make a valid contract. In the second case also the same question arose relating to the validity of a settlement. While holding that the settlement was void as against the minor, the Supreme Court considered its effect upon the whole of the settlement and observed:--
"If the deed of settlement was thus void, it could not be void only qua the minor plaintiff 3 but would be void altogether, qua all the parties including those who were sui juris".
(4) The Supreme Court also added that this proposition could not be and was not as a matter of fact in that case contested before it. The lower appellate court distinguished these two decisions on the ground that they related to an agreement or a family settlement and that the rule applicable to it cannot be extended to the case of a conveyance by persons suit juris in respect of their shares. In its view, the only effect of the incapacity of the mother to represent her minor son and make a conveyance of his share is that the minor is not a party to the conveyance and that therefore the conveyance should be deemed to be one by the other executants alone who were competent to execute it in respect of their shares. In other words, the lower appellate court considered that the conveyance was good so far as the major executants were concerned and would pass their shares to the purchaser. It was on this view, the lower appellate court passed a preliminary decree for partition of 21/40 shares, since it found that all the parties were before it and there could be no objection to pass such a decree, though the suit itself was one to set aside the sale. It seems to me that in taking that view, the lower appellate court cannot be said to be in error. In my view, the circumstances and facts in the case before the Privy Council and the Supreme Court were different and they were concerned with a contract, which by its very nature could not be cut up and upheld in one part and held to be void in another part. The nature of conveyance is not identical with that of a contract or an agreement or a family settlement. Of the four persons who executed the sale, two were competent to execute the conveyance and the other two being minors represented by the de facto guardian it is as if they did not execute the conveyance. If effect the conveyance should be regarded as one executed only by the two persons who were majors and had independent shares in the property which they could convey. A finding that they sale is void in so far as it related to the minors does not necessarily, in my opinion, affect the conveyance in so far as it related to the other executants, who were sui juris and were entitled to make a conveyance of their relative shares.
(5) That view of mine, I consider, receives support from Matadin v. Ahmed Ali, ILR 34 All 213: 39 Ind App 49 (PC). Though the point did not directly arise in that case, as I understand the decision, it will be a logical result of what the Privy Council held therein. A Mahomedan testator left a will bequeathing his properties to his four grandsons without appointing any executors or guardians for them. After the death of the testator, three of the grandsons of their own behalf and purporting to act also as guardians of the fourth grandson sold some of the properties to the defendant who held a mortgage of certain villages executed by the testator himself. The fourth grandson, on attaining the age of majority, instituted the suit, out of which the appeal before the Privy Council arose, for redemption of the mortgage in favour of the defendant in so far as it related to his share, the claim being based on the ground that his major brothers had no right to act as his guardians and their conveyance on his behalf was void as against him. The Privy Council allowed the claim of the quondam minor to redeem his share. The implication of this decision seems to me to be that the quondam minor was allowed to avoid the sale only so far as it related to his share. If the entire sale has to be regarded as void, the quondam minor would have been entitled, as a co-owner, to redeem the entirety of the mortgage.
(6) In Kadir Meeral Beevi v. Mohamed Koya, 1956-1 Mad LJ 307: (AIR 1956 Mad 368) a Division Bench of this court was inclined to view that if a sale executed by a de facto guardian of a Muslim minor was for the purpose of discharging the debt of the minor's father, the conveyance would be binding on the minor. On this basis, it is argued for the respondent that it is not in every case, a conveyance of a de facto guardian of a Muslim minor will be void for that reason, and that in that case the entirety of the sale was upheld. But the precise question which I am called upon to decide in the instant case did not arise there. Further it does not appear that the attention of the learned Judges was invited to ILR 34 All 213: 39 Ind App 49 (PC).
(7) As pointed out by Venkataramana Rao J. In Khatoon Bibi v. Abdul Wahab, AIR 1939 Mad 306 every Muslim heir is entitled to sell or mortgage or otherwise encumber his share of the property without reference to the other heirs just like any tenant in common. The first two plaintiffs being competent to alienate their shares, the sale must be held to be good at least to that extent.
(8) In my opinion, the lower appellate court came to the correct conclusion. The second appeal is dismissed but with no costs. No leave.
(10) Appeal dismissed, leave refused.