1. This appeal arises out of a suit by a Mahomedan woman for a declaration that a sale deed executed by her mother, defendant 1, is void as against the plaintiff and for possession of the properties from the alienees with mesne profits.
2. Before going into the merits of the case I am constrained to remark that the way in which the appeal was dealt with in the lower appellate Court leaves something to be desired. The case was heard on 28th September 1929 and judgment was reserved. No judgment was however pronounced for nearly two months. On 25th November 1929 it was posted for being spoken to and after further consideration the judgment was eventually pronounced on 9th December 1929. It is unnecessary to point out that a Judge can have very little recollection of the arguments in an appeal two months after these have been heard and that it is eminently undesirable when judgment has been reserved that there should be such a long delay before the judgment is written.
3. The property in this case was purchased by defendant 1 on behalf of her minor daughters under Exs. B and C in 1908. Apparently their property represented the share of the plaintiff and her sister Safra Bi in the assets of their deceased father. Safra Bi was married in 1909 to Ahamed Ali and she died a few days after her marriage. Under the Mahomedan law the heirs to Safra Bi 'Would be her husband who would be entitled to three-eighths, her sister, the plaintiff who would be entitled to three-eighths, and her mother, defendant 1, who would get the balance, namely, two-eighths. It would appear that the mother desired to pay off the share of her son-in-law Ahamed Ali. She therefore allowed him to retain jewels, etc., of his wife which were estimated to be worth about Rs. 1,500 and as the total value of Safra Bi's property was about Rs. 8,000 she arranged a sale of certain of the properties acquired under Exs. B and C to defendant 7 for a sum of Rupees 1,500 which money was used to discharge the balance of the claim of Ahamed Ali. It will thus be seen that defendant 1, in order to discharge Ahamed Ali's claim, sold properties in which a half interest was the absolute property of the plaintiff while the other half represented a portion of the estate of Safra Bi in which a three-eighths share belonged to the son-in-law Ahamed Ali, three-eighths to the plaintiff and two-eighths to the vendor, the mother herself.
4. It is well established that in so far as defendant 1 purported to sell the plaintiff's share in these properties she acted in excess of her powers and the sale would be ab initio void. A contention on behalf of the plaintiff who is the appellant based on the fact that the properties purchased by defendant 7 represented as to half of them the properties in which the plaintiff had a title in her own right and as to three-eighths of the other half properties in which the plaintiff had title as heir to Safra Bi has now been abandoned in view of the fact that the plaintiff has in a separate proceeding got possession of a full interest in the balance of the properties covered by Exs. B and C, so that she has no equitable claim to more than her right as heir to Safra Bi in the present properties. The only remaining contention put forward on behalf of the appellant is that she should have been given mesne profits not merely for three years before suit as the lower Courts have decided but for the whole period since the invalid sale was effected. There is a memorandum of cross-objections in which two contentions are urged, one being that the equities in favour of the alienee ought to have been determined as on the date of the alienation and that on that basis defendant 7 should have been held entitled to stand in the shoes of defendant 1 and of Ahamed Ali and have the entire suit properties allotted as representing their share. The other contention is put forward in the alternative that since Ahamed Ali in consideration of the value of the jewels and the amount obtained from defendant 7 by the alienation which is now attacked was prevailed upon to surrender his claim to a share in the whole of the properties left by Safra Bi of which those sold to defendant 7 represent only a fraction, the plaintiff in equity having benefited by this sale should pay her proportionate share in the amount of the money of defendant 7 which went to Ahamed Ali before she can claim possession of the properties purchased by defendant 7. It is quite clear to me that it is impossible to work out the equities by allotment of the properties purchased by defendant 7 as is done in a partition suit, for the whole of the properties comprised in Safra Bi's estate are not before the Court nor is Ahamed Ali a party to this litigation. There is however a good deal of force in the contention that the plaintiff has obtained a solid benefit by the transaction carried out bona fide by her mother for consideration and that she should not be allowed both to approbate and to reprobate, to get the benefit of this transaction and at the same time treat it as void.
5. It must be remembered that, at the time when this transaction was carried through, the law regarding the power of a Mahomedan mother and de facto guardian to make alienations on behalf of her minor children was by no means as well settled as it is now. Moreover this sale to the extent of the shares of defendant 1 and Ahamed Ali was a perfectly valid sale and it seems to have been carried out with the bona fide intention of settling the claim of the son-in-law who would cease to have much connexion with the family on the death of his wife. There is therefore a good deal to be said in favour of the view that the transaction was a prudent one entered into honestly by both parties for the benefit of the family as a whole. It is urged for the appellant that since the transaction is ab initio void the Court has no jurisdiction to impose conditions upon the plaintiff when the plaintiff comes to Court seeking possession and a declaration that the transaction is voids There is however authority in a decision of this Court in a very similar case for the view that Section 41, Specific Relief Act; does empower the Court in such a case to require a Mahomedan minor who seeks to treat as void a transfer by a de facto guardian, to surrender the benefit which has been obtained for the minor by that transfer as a condition precedent to its avoidance. I refer to the case of Abdul Majid v. Ramiza Bibi 1931 33 MLW 312.
6. At the same time it seems to me that if defendant 7 is entitled to be recompensed for the portion of the sale consideration which went to the benefit of the plaintiff, the plaintiff is entitled to proportionate mesne profits from the date of the sale, for defendant 7 has during the whole of that period been in possession of property to which, according to law, he had no title and I do not see any legal grounds upon which he can claim interest from the plaintiff on the money which went to the benefit of the plaintiff out of the sale consideration. In the result therefore I allow both the appeal and the memorandum of cross-objections and grant a decree to the plaintiff for proportionate mesne profits from the date of the sale, but order that the plaintiff do pay to defendant 7 a sum of Rs. 562-8-0 as a condition precedent to the surrender of possession of the suit properties. The parties will pay and receive proportionate costs in the appeal and memorandum of cross-objections. Leave to appeal granted.