TMI Blog1957 (12) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... he integration of the two States. These properties belonged to the plaintiff's father, Arakkal Ahamed Moidunny, referred to hereinafter as Moidunny, who died in Kumbom 1106 leaving properties both in the Malabar District in the former Madras Presidency and in the Cochin State. The plaint properties were all the properties Which he had in the Cochin State at the time of his death. Moidunny himself belonged to Punayurkulam Amsom, a village close to Kattakambal in which the plaint properties are situated, but which was at that time in Ponnani Taluk in the Malabar District. He had two wives, one of whom had been divorced by him before his death. Plaintiff and defendants 1 and 2 are his sons by the other wife, Pathumma, and defendants and 5 are his daughters by her. By the divorced wife he had only one son, defendant 3. At the time of Moidunny's death plaintiff and defendant 3 were minors and all the other children were majors. On 8--3--1935 (5th Meenom 1110) defendants 1, 2, 4 and 5 and their mother, Pathumma, who is now dead, executed a sale deed, Ext. II, in favour of defendant 6 for the plaint properties. This sale deed purports to have been executed not only on behalf of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat Ext. II was executed at a time when the creditors were pressing for payment and for the purpose of discharging those debts and certain arrears of tax, that it was therefore, in any event, valid and binding upon the plaintiff also, that even in the event of Ext. II being found to be not binding on the plaintiff because his legal guardian had not joined in its execution, plaintiff could claim his share only on his paying to defendant 6 his proportionate share of the liabilities of the deceased Moidunny discharged by her under the terms of that document, and that he was also not entitled to ask for mesne profits until this amount was repaid to her. 2. Except as regards her right to get a reimbursement of the amount paid by her for discharging Moidunny's liabilities and the plaintiff's claim for mesne profits, the lower court repelled the contentions of defendant 6, and, upholding the plaintiff's case that his mother was not his legal guardian and was not competent to execute Ext. II on his behalf also, passed a preliminary decree for partition in the following terms: Ext. II is not binding on the plaintiff's share regarding his 14/80 share. The plaint schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ather's father will be the guardian. This rule of Mahomedan Law has been recognised by the Privy Counsel in Imambondi v Haji Mutsaddi (A.I.R. 1918 P.C. 11) which case has been followed by the Travancore Cochin High Court in Mohammed Haneefa v Thajudeen (1950 K.L.T. 128) At page 16 of the report in A.I.R. 1918 P.C. 11 it is said: 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 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 a guardian for the protection and preservation of the infant's property devolves on the Judge as 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. With the respect to the mother's rights in particular, Their Lordships have said at page 15 of the report in that case : It is perfectly clear that under the Mahomedan Law the mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case does not prove the custom alleged. The appellant's Learned Counsel contended that the lower court has gone wrong in both these conclusions. 5. Section 2 of the Shariat Act reads: Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, sihar, lian, khula and Mubara'at, maintenance, dower, guardianship, gifts, trust and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat). But the Shariat Act was passed only in 1937 whereas Ext. II was executed in 1935; and the question for decision in this case is what the law regarding guardianship when Ext. II was executed in 1935 and whether under that law the mother was entitled to be the plaintiff's guardian and was competent to alienate properties belonging to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But, the enactment of the Shariat Act and this repeal of the Madras Civil Courts Act can have no retrospective effect so as to bar the consideration of the question whether in matters relating to guardianship any class of Muslims, belonging either to a particular locality or a particular family, was governed by the rules of pure Mohamedan law or by custom in derogation of those rules before the enactment of the Shariat Act, or render invalid any act done on behalf of a minor before the enactment of the said Act by a person who was his legal guardian as the law then stood and which was within his powers. A change or amendment of the law or repeal can have no retrospective effect unless the intention of the legislature that it should have such effect is expressed in plain and unambiguous language or is evident by necessary implication. The lower court was, therefore, wrong in holding that, on account of the Shariat Act and the Madras Civil Courts Act, defendant 6 was barred from contending that before the enactment of the Shariat Act the plaintiff's family was governed by customary law and not by the rules of Mahomedan law in matters relating to guardianship. 6. Although the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng otherwise- (Translation) From this statement it is impossible to know whether the case of defendant 6 is that plaintiff is governed in matters relating to guardianship by a local custom binding on all the Mahomedans living in the locality or by a family custom binding on the members of his family alone. It is admitted that in the Ponnani Taluk of the old Malabar District were the members of the plaintiff's family are living as well as in the former Cochin State in which the plaint property is situated, besides Mahomedans, there are Nairs, Ezhavas, Nambudiris, Tamil Brahmins, Christians, and other communities. There is no knowing from the allegation in paragraph 2 of the written statement the practice of which of these communities has been adopted and followed by the plaintiff's family or the Mahomedans of the locality. It is not in this vague manner that a custom, which has to be definite, uniform and invariable for being judicially recognised, should be pleaded. The omission of defendant 6 to specify in the written statement the custom she is pleading and relying upon is due to the fact that while the plaintiff's mother had participated in the execution of Ext. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s guardian while his mother was alive. It is clear from these documents that neither the plaintiff's family nor the Mohamedan community at the place where the plaintiff's family was living had recognised a uniform practice of having the mother as the minor's guardian in the absence of his father. 8. Dws. 1 to 6 are the witnesses who have given oral evidence about the alleged custom. Dw. 1 is a Division Inspector of Schools and a relative of the plaintiff. Exts. I series are documents executed by members of his family, and he says that in the locality in which his family and the plaintiff's family have settled down there are Christians, and Hindus and the custom among the Mohamedans of the locality regarding guardianship is that the mother is the guardian in the absence of the father and the brother in the absence of the mother. No doubt, Exts. I, I (a) and I (b) tend to corroborate his evidence, but several of the documents referred to in the previous paragraph would show that even when the mother was alive either the brother or the grand father was executing documents as guardian. Further, it has also not been shown to us that the practice either among' the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing aside the sale deed so far as his share is concerned it has directed the plaintiff to pay to defendant 6 proportionate amount of the sale consideration she has paid under Ext. II and allowed him to recover possession of his share of the properties only on payment of such amount. This finding and direction have not been objected to by the plaintiff, and therefore, it is contended by the appellant's counsel that, although, viewed as a pure alienation, Ext. II is liable to be set aside in as much as it was executed on behalf of the plaintiff by his mother who was not competent to act as his guardian, the document has to be taken as an act of administration of the estate of the deceased Moidunny by his adult heirs, and should be given effect to as binding upon the estate of the deceased and all his heirs including minors. Reliance is placed in support of this contention of the observations of Krishnaswamy Aiyar, C.J. in Ahammathu Kunju Musaliar v Pathumma Knnju (1945 T.L.R. 491). Following the decision of Benson and Bhashyam Aiyangar in Pathummabi v Vittill Ummachabi (I.L.R. 26 Madras 734) and the statement in Mulla's Mohamedan Law, that in the absence of an executor or adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner set forth in the section, is the executor appointed under his will. If the deceased left no will, the person entitled to administer his estate would be the person to whom letters of administration are granted. Such a person is called administrator. The persons primarily entitled to letters of administration are the heirs of the deceased: Indian Succession Act, 1925, section 218. In the absence of an executor or administrator, the persons entitled to administer the estate are the heirs of the deceased. After quoting this passage Krishnaswamy Aiyer, C.J., says in paragraphs 5 to 8 of his judgment that, since the funeral expenses, death-bed charges, wages due for services rendered to the deceased, and his other debts and legacies not exceeding one-third have to be paid in the first instance, and it is only the residue of the estate of the deceased which can be divided among his heirs, it is impossible to suggest that the administration of the estate of a Mohamedan was not contemplated under the Mohamedan Law, and that it is permissible for one heir alone to represent the whole estate and administer it in order to preserve the estate. At page 503 of the report the learned Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alava v Bhimaji Dhondo.........). In the present case it is found and admitted that the mother, the first defendant, who now supports the plaintiff's cause was in sole de facto possession of the entire inheritance and that the sales were mostly made bona fide in discharge of debts due by the deceased husband, which would be binding on all the heirs. It has been held in more cases than one that when a decree is obtained against the widow for debts due from her husband and property is sold to satisfy the decree debt, the sale would bind the other heirs, though they have not been made parties to the suit: Khurshet Bibi v Keso Vinayek (I.L.R. 12 Bom. 101), Devalava v Bhimaji Dhondo (I.L.R. 20 Bom. 338), and in Hasan Ali v Medhi Hussain (I.L.R. 1 All. 533), a sale made by one of the co-heirs, who was in possession of the whole estate for the discharge of the debts of the deceased and for other purposes, was upheld even when no decree had been obtained by the creditors in respect of those debts. The soundness of this decision, so far as it upholds a sale made for family purposes other than the discharge of debts due by the deceased, may be open to question under the Mohamedan Law. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essual law of that system and is not based on the ground that a single heir, if he happens to be in possession of the estate of deceased, represents the rest of the heirs for the purpose of administration generally. The ground on which a decree against one of the heirs, in such circumstances, is treated as res judicata is, as stated in the books, that the decree in such case is in law against the deceased and not against the particular heir who is made defendant in the suit. In Hedaya the matter is discussed in the chapter relating to the duties of the Kazi and in some other text books in the chapter dealing with claims, in which chapters the rules of procedure of the Mohamedan system are mostly laid down. In dealing with the question whether where one of the heirs obtains a decree for the recovery of the property of the deceased in possession of a third person more than his share in that property should be made over to him in execution of the decree, it is stated that all the three doctors, that is, Abu Haneefa and his two disciples, agree that the decree enures not only in favour of the heir who actually is the plaintiff but also of the heir who did not join on account of absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his conveyance would pass only his share'. This Full Bench decision concludes the matter so far as Madras is concerned. 12. In 1945 T.L.R. 491 Krishnaswamy Aiyer, C.J., followed 26 Madras 734 in preference to this Full Bench decision because of the view expressed by him at page 500 of the report referred to above and his desire to make applicable the general principles of administration to Mohamedans also in order to prevent the estates of deceased Mohamedans from becoming a prey of as many proceedings for administration as there are fractional heirs. The danger or inconvenience of the estates of Mohamedan deceased becoming the prey of as many proceedings for administration as their fractional shares if the view that it is not permissible for one heir alone to represent all the other heirs and administer the estate, to which the learned Chief Justice has drawn attention in the passage at page 503 of the report in 1945 T.L.R. 491 and extracted in paragraph 11 above, cannot arise after the enactment of the Probate and Administration Act and the Indian Succession Act. Under section 4 of the Probate and Administration Act, 1881, and section 211 of the Indian Succession Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that law to hold that one or some alone of the numerous heirs of a deceased Mohamedan is competent to administer his estate and execute sale deeds or mortgage deeds binding on all the heirs during the course of such administration. It has been said in many cases, and it is now well settled, that the theory of representation is foreign to Mohamedan law. Mulla says at page 32 of his book. The theory of representation is not known to Mohamedan law. Under its provisions the estate of a deceased person devolves upon his heirs at the moment of his death. The estate vests immediately in each heir in proportion to the share ordained by Mohamedan law. As the interest of each heir is separate and distinct, one of a number of heirs cannot be treated as representing the others. But heir in possession of assets of an estate can be sued by a creditor of the deceased upon principles discussed in sections 43 and 46 infra, (i.e., each heir is liable for the debts of the deceased to the proportionate extent of his share in the estate, and in same jurisdictions a heir in possession of the whole estate is liable to be sued for the whole debt). There is no intermediate vesting in anyone, such as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heirs together are entitled to administer the estate in the absence of an executor or administrator. Since the share of each heir would vest in him immediately after the death of the deceased, it goes without saying that all the heirs together can deal with the estate in any manner they choose and that they can sell or mortgage any part of it for discharging the debts of the deceased. We do not think that the passage in Mulla's book on Mohamedan Law referred to above means anything more than this. The theory of representation being fore in to Mohamedan law, and since each heir has got a separate and distinct share in the estate of the deceased and his share vests in him immediately after the death of the deceased, it necessarily follows that if one of the heirs is a minor at the time of the death of the deceased no alienation made by another person would be binding on his share unless the person making the alienation is his lawful guardian or has been appointed as his guardian by the court. The fact that the alienation made by the person incompetent to make it was for any necessity binding upon the minor or for his benefit is perfectly immaterial in considering the validity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Probably because the alienation in question was a mortgage which it was open to the plaintiff to redeem at any time by paying the amount there would not have been much difference in the result if the mortgage was set aside and the plaintiff directed to pay his share of the debt. Although the alienation concerned was upheld in 1956 (I) M.L.J. 307, the principle approved by the learned Judges in that case also was that, when some of the heirs alienated the property for discharging the debts of the deceased, the minor has the right to get the alienation set aside so far as his share was concerned on paying his share of the debts to the alienee. 16. Some reference was made by the appellant's counsel to certain cases wherein it had been held that a decree obtained against one alone of the heirs who was in possession of the whole or any part of the estate of the deceased would be binding upon all the heirs. Most of these cases are decisions of the High Court of Calcutta. But, as pointed out by Mulla at pages 36 to 38 of his book (14th Edition) even the Calcutta High Court was held in Abbas Narker v Chairman, District Board (59 Cal. 691) that these decisions would apply only if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (A.I.R. 1918 Mad. 1049) that even when the adult heir who sells the property is in possession of the whole estate and the sale is for discharging the debt of the deceased it will not be binding upon the co-heirs and their shares. In the case of an alienation made by the mother of the minor, who was one of the heirs of the deceased and also the de facto guardian of the minor but not his legal guardian, the Privy Council has held in Imambandi v Hajir Mutsaddi (A.I.R. 1918 P.C. 11) that a person in charge of a minor's person and property who is not his legal guardian and who may therefore be called a de facto guardian, has no power to convey to another any right or interest in immovable property which the transferee can enforce against the minor, nor can the transferee, if let into possession, resist an action in ejectment brought on behalf of the minor, and that beyond the limited power to pledge the minor's movables for his imperative necessities the mother or any other de facto guardian has no power to deal with his property. This Privy Council decision has been followed by the Patna High Court in Kharaj Narain v Hamida Khatoon (1955 Pat. 475) and by the Lahore High Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the estate of the deceased Moidunny. We may, in this connection, also point out that the omission of the defendant to plead this case specifically in the lower court has resulted in the denial of an opportunity to the plaintiff to adduce the necessary evidence to show that the execution of Ext. II was not a bona fide and reasonable act of administration. From the admissions of defendant 1 and Dw. 6 and the other evidence in the case it would appear that the deceased Moidunny was worth more than two lakhs of rupees and had about 60 acres of cocoanut gardens and 40 acres of paddy lands, that after his death about 20 acres of lands have been assigned to defendant 1's wife for clearing debts amounting to ₹ 4489--6--10 (which according to the plaintiff are only bogus debts), and that from the income of the property the debts mentioned in Ext. II could have been easily paid off. About these matters, the extent of the indebtedness of the estate, the available income, and the surplus after expenditures-plaintiff has not been able to adduce detailed evidence because of the defendant's omission to plead that the execution of Ext. II was a bonafide and reasonable act of adminis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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