1. This appeal arises out of a suit an which the plaintiff claimed possession of certain lands which belonged to one NararPatni. The lower Court decreed the suit, narai Patni. The lower Court decreed the suit. Narai Patni was a co-sharer of the lands with his prother Devi Patni. In 1914, Narai Patni sold his interest in the lands together with other lands to Chomroo Shah and after diverse mesne assignments the lans in dispute passed to Abdul Gaffur. In due course Abdul Gaffur died. And his heirs namely, two brothers and his widow who represented certain minor sons by a kobala dated the 18th September, 1912, purported to sell these lands to the plaintiff. The plaintiff now sues the defendant No. 1 and other persons to recover possession of the lands covered by the kobala dated the 18tu December, 1921, and his claim is to recover possession of this land after having dispossessed the defendant No. 1, the brother of Narai Patni, his predecessor intitle. Admittedly the defendant is in possession and he resists the plaintiff's claim to the interest of the minor parties to the kobala of 18th December, 1921, upon the ground that neither of their two uncles nor their mother was entitled in law to execute a transfer of the minor's interest in the property. In my opinion this contention is well-founded. The defendant-appellant also claims that the whole suit ought to be dismissed upon the ground that the plaintiff has failed to prove that either he or his predecessor in-title was in possession of the lands within 12 years before this suit was instituted. There is no substance, in my opinion, in the defence of limitation. The suit was instituted on the 28th January, 1922, and although the successors-in interest of Narai Patni admittedly were never in possession of the land the lower Courts have found that on or about the 11th January, 1914, when Narai Patni sold his interest in the land he was in possession either by himself or through his brother, the defendant No. 1, who was a co-sharer with him in the property in dispute. The evidence upon winch the Courts below reached this finding of facts is somewhat exiguous, but I am unable to say that there was not evidence to support the finding, and, in my opinion, the plea of limitation fails. The other ground of defence was sufficiently raised in the earlier proceedings having regard to the issues framed at the trial and the terms of the judgment which was delivered, and, in my opinion, the plaintiff's cause of action must fail to the extent to which he claims possession of the minor's share of the interest in the property which they inherited from Abdul Gaffur. The only person who could validly transfer the interest of the minors, was their legal guardian, that is their guardian de jure in accordance with the principles of law obtaining among the Suuni sect of the Muhammadan community, or the guardian appointed by the Court. Neither the uncles nor the mother of the minors in fact or in law occupied the position of a legal guardian. In Imambandi v. Mutsaddi 17 Ind. Cas. 513 : 45 C. 878 at p. 892 : 35 M.L.J. 422 : 16 A.L.J. 800 : 24 M.L.J. 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.) Mr. Ameer All in delivering the opinion of the Judicial Committee of the Privy Council said that 'it is perfectly clear that under the Muhammadan Law. the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian; the fattier alone, or, if he be dead, his executor (under the Sunni Law) is the legal guardian. The mother has no larger powers to deal with her minor child's pro-party 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 in his judgment His Lordship added as already observed, in the absence of the father under the Sunni Law, the guardianship vests in his executor. If the father dies without appointing an executor (wasi) and his father is alive, the guardianship of his minor children devolves on their grandfather. Should he also be dead, and have left an executor, it vests in him. In default of these de jure guardians, the duty of appointing aguardian for the protection and preservation of the infant's property, devolves on the Judge as the representative of the Sovereign. No one else has any right or power to intermeddle with the property of a minor, except for certain specified purposes, the nature of which is clearly defined.'
2. Applying this principle to the facts of the present ease it is apparent that the interest of the minors in the property in dispute did not pass by virtue of the kobala of the 18th December, 1921. The result will be that the appeal will be allowed, and the decree of the Court below varied. The suit will be dismissed to the extent of the minor's interest, in the property but the decree will s' and with respect to the interest of the two uncles and the mother, the share being 1/8th as regards the two uncles and 1/6th as regards the mother. We think that the appellant should have 1/3rd of his costs in all the Courts.
3. I agree.