1. This appeal arises out of an application made under Rule 17 of the Second Schedule to the Code of Civil Procedure.
2. It appears that the descendants of a person of the name of Jhalu Mandal are in dispute as to the extent of their joint properties and as to the manner in which they should be distributed amongst them On the 21st October 1916 these persons entered or purported to enter into an agreement to refer the dispute to the decision of certain arbitrators. The application under Rule 17 was made by or on behalf of five of the persons whose signatures appear on the agreement to refer. It was made on the 4th April 1917. After hearing the parties the Subordinate Judge directed that the agreement should be filed and that the matters in dispute should be referred to the arbitrators named in the deed of agreement. Against this order Mohsinuddin Ahmad, one of the parties to the agreement, has appealed.
3. He contends before us that in entering into this agreement he acted under coercion, and he further contends that as a matter of fact the agreement referred to was abandoned by the parties thereto and never became operative. These are matters into which we do not think it necessary to enter, because we are of opinions that oil a further contention this appeal must succeed. of the persons who purported to enter into the agreement two are minors, Din Mohamad and Kasirannessa, in whose behalf when executing this agreement their mother Sakhina Bibi acted. It is contended by the appellant that inasmuch as Sakhina Bibi, the mother, was not appointed guardian of the properties of the minors by the District Judge under the Guardians and Wards Act, she is not competent to deal with the properties of the minors and not competent to enter on their behalf into the agreement to refer td arbitration, the said agreement being one which will necessarily, if acted upon, involve dealings with the properties of the minors.
4. To this contention, in view of the decision of their Lordships of the Privy Council reported as Imambandi v. Mutsaddi 47 Ind. Cas. 513 : 45 C. 878 : 35 M.L.J. 422 : 16 A.L.J. 800 : 24 M.L.T. 330 : 28 C.L.J. 409 : 23 C.W.N. 50 : 5 P.L.W. 276 : 20 Bom. L.R. 1022 : (1919) M.W.N. 91 : 9 L.W. 518 : 45 I.A. 73 (P.C.), we think there can be no sufficient answer. It is true that in that case their Lordships of the Privy Council were dealing more particularly with cases of sale or mortgage, but they had in view also the general question how far and under what circum-stances according to Muhammadan Law dealings by a mother or other unauthorized guardian of a minor are operative. They observe, inter alia, 'The mother has no larger powers to deal with her minor child's property than any outsider or non-relative who happens to have charge for the time being of the infant. The term 'de facto guardian' that has been applied to these persons is misleading; it connotes the idea that people in charge of a child are by virtue of that fact invested with certain powers over the infant's property. This idea is quite erroneous,' Later on they further say, 'Without such derivative authority, (that is, authority derived either from powers given by a Will or by appointment by the Judge as guardian) if the mother assumes charge of their property of whatever description and purports to deal with it, she does so at her own risk, and her acts are like those of any other person who arrogates an authority which he does not legally possess, she may incur responsibilities, but can impose no obligations on the infant.' In view of this decision and these observations we cannot but hold that in the present case the mother is not competent to bind the infants by this so-called agreement to refer to arbitration.
5. In answer to this it is suggested that the reference to arbitration is for the manifest advantage of the infants and, therefore, comes within the 3rd clause of the Exceptions provided for the protection of a minor child who has no de jure guardian. But to that suggestion we are unable to accede. Acts coming within the 3rd Exception are acts purely advantageous to the infant, or as it has been put in the judgment to which we have referred, acceptance on behalf of the minor of unburdened bounty. it is clear that agreements to refer to arbitration disputes between infants and other persons regarding their moveable and immoveable properties do not come within this Exception.
6. It has further been contended that the appellant Mohsinuddin Ahmad, having entered into this agreement, is not competent to withdraw therefrom. This also is a proposition which we are unable to accept. Even if he had entered into it voluntarily, it would seem that he did so under a misconception as to the legal authority of the mother to bind her infant children by her dealings with their property, But now that he has been advised that, as is apparent from the judgment to which we have referred, the mother has no such legal authority and that the agreement is not binding upon the infants, it is clear that he should not be compelled to undergo the expenditure of time and money involved in a proceeding which may very possibly, and indeed in all probability will in the end, prove futile and infructuous.
7. A further contention was advanced to the effect that on application made to the District Judge under the Guardians and Wards Act two persons, one, Sakhina Bibi's brother, Haider Buksh, was appointed guardian of the properties of the two minors to the extent of about one-third of their value and that another person Khabiruddin Ahmed, who is one of the respondents in this appeal, was appointed guardian of the minors' remaining properties. These appointments, however, were both conditional on furnishing of security. Haider Bukhsh, it is true, furnished the required security, Khabiruddin Ahmed never furnished that security, never acted as guardian of the properties of the minor and in fact his appointment as guardian never became operative. It follows that Haider's assent subsequently given to the agreement to refer and Haider's participation in or assent to the application under Rule 17 cannot validate the agreement which forms the basis of that application.
8. We, therefore, decree this appeal and set aside the order of the District Judge with costs. We assess the hearing fee in this Court at five gold mohurs. The costs are to be paid by the contesting major respondents.
9. I agree and wish only to add a few words with reference to an argument which was advanced before us. It was that the case of Imambandi v. Mutsaddi 47 Ind Cas. 513 : 45 C. 878 : 35 M.L.J. 422 : 16 A.L.J. 800 : 24 M.L.T. 330 : 28 C.L.J. 409 : 23 C.W.N. 50 : 5 P.L.W. 276 : 20 Bom. L.R. 1022 : (1919) M.W.N. 91 : 9 L.W. 518 : 45 I.A. 73 (P.C.) did not conclude the matter before us as there are special rules in the Hedaya with regard to partition. We were referred to one, which provides that in case of a partition between an adult and a minor the Kazi must appoint some one to act for the minor and it was argued that here the Court had found the mother a fit person to represent the minors. The short answer to that is that the District Judge, who takes the place of the Kazi in Muhammadan Law, did not appoint the mother and the fact that the Court subsequently found her fit to act for the minors would not validate an arrangement, which in its inception was invalid.