TMI Blog1918 (2) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... ors) in the Collector's records, and, as usually happens in these cases in India, especially in Mahomedan families, immediately this application was made a claim was put forward on behalf of Enayet-uz-Zohra and her children that they were equally entitled with the other heirs of Ismail Ali Khan to have their names entered as co-sharers in the estate by right of inheritance, the allegation being that Zohra was one of his lawfully wedded wives and that her children were his legitimate issue. The Revenue Courts rejected her claim, holding that it was not established to their satisfaction that she was Ismail Ali Khan's married wife or that the children were his lawful issue. They accordingly made an order directing the registration of the contesting defendants' names in succession to Ismail Ali Khan. 4. It should be mentioned here that the defendants 1 and 5 are admittedly Ismail Ali Khan's married wives, defendants 2, 3, and 4 are his issue by defendant 1, and defendants 6 and 7 his daughters by defendant 5. 5. The plaintiffs are dealers in hides, and also live at Siwan. There seems to have been litigation between them and Ismail Ali Khan in his lifetime, and sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contesting defendants' pleader, when it was discovered that a large number of leaves were abstracted from several of the books. This was represented to the presiding officer of the Court where the books were filed, but there is nothing to show the result of the representation. The plaintiffs' case appears to have closed on June 26, and on the following day the defendants commenced to examine their witnesses. On the same day they produced the bahis. The Subordinate Judge's order on their petition is in these terms: On the defendants' application filing therewith the bahis from 1294 to 1311 Fasli, it is ordered that they be kept with the records, and that the plaintiffs' pleader be informed accordingly. About this time the missing leaves turned up mysteriously. The trial judge says he received them by post from some unknown source; and apparently after receipt he handed them to the proper officer. Upon becoming aware of this fact the defendants applied to the Court that the torn-out leaves thus rediscovered might be admitted in evidence; and on June 29, whilst the trial was proceeding and evidently in the presence of the pleader for the opposite party, the Subor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial, and in substance directed to the corroboration of the defendants' witnesses, who denied that Zohra was one of Ismail Ali Khan's wives. Order xiii., Rule 1, of the Civil Procedure Code requires the parties or their pleaders to produce at the first hearing of the suit all the documentary evidence of every description in their possession or power on which they intend to rely. But it does not exclude the discretion of the Court to receive any such documentary evidence at any subsequent stage. In the present case the books had been filed previously in another Court, and when produced on June 27 they were in fact received and ordered to be placed with the records. There seems to have been no objection to their reception for non-compliance with the provisions of the Code. If the plaintiffs had taken notes of certain entries in the books, as is alleged they had done when the bahis were in the other Court, they could surely have cross-examined the defendants witnesses, who were called to prove the books, as to the discrepancies. Their Lordships are not satisfied that the books are not the genuine account-books of Ismail Ali Khan. What effect the absence in them of entries in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surface: on the facts proved in the case it is quite clear that this lady's father, though belonging to the same clan as Ismail Ali Khan, was a man considerably inferior in social status; it is not at all unlikely that the deceased was not particularly proud of his connection with the daughter. This would explain both the absence of the entries and his reticence about her to ordinary acquaintances and even friends. On the whole case, their Lordships are of opinion that both Zohra and her children are entitled to their legal shares in the inheritance of Ismail Ali Khan. But the Courts in India have awarded to the plaintiffs, on the basis of the deed of purchase from Zohra, a decree for possession of her share and the shares of defendants 9 and 10. And the question is whether they have acquired any title to the infants' shares under the sale by the mother. The defendants objected in the High Court to the decree of the Subordinate Judge on the ground that she had no power to convey her children's interest to the plaintiffs. The learned judges overruled the objection on the ground that the question did not arise in the present case. Their Lordships regret to have to differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mortgage executed by the ancestor. On attaining majority the younger brother, ignoring the sale, brought a suit against the vendee-mortgagee for the redemption of his own share. The defence set up was that the sale by the infant's de facto guardian, made for a valid necessity, was binding on the infant. The lower Courts decreed the plaintiff's claim; on appeal to this Board the arguments proceeded on the same lines as in the present case, though in reverse order. 17. Lord Robson, in delivering the judgment of the Board, observed as follows: It is urged on behalf of the appellant that the elder brothers were de facto guardians of the respondent, and, as such, were entitled to sell his property, provided that the sale was in order to pay his debts and was therefore necessary in his interest. It is difficult to see how the situation of an unauthorized guardian is bettered by describing him as a 'de facto' guardian. He may, by his de facto guardianship, assume important responsibilities in relation to the minor's property, but he cannot thereby clothe himself with legal power to sell it. And he went on to add: There has been much argument in this case in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, it be evident that it will otherwise perish or be lost, in which case the sale of it is allowed. In fact, the Mussulman law appears to draw a sharp distinction between movable and immovable property (a'kar) in respect of the powers of guardians, as will be seen from the following passage in Baillie's Digest, bk. 10, c. 8, p. 689: With regard to the executor of a mother or a brother,-when a mother has died leaving property and a minor son, and having appointed an executor, or a brother has died leaving property and a minor brother, and having appointed an executor, the executor may lawfully sell anything but A'kar is immovable pro- subsequent footnotes form part party, and includes houses, groves, of the judgment as delivered.- orchards, c. [This and the REPORTER.] belonging to the estate of the deceased, but can neither sell the a'kar, nor lawfully buy anything for the minor but food and clothing, which are necessary for his preservation. The executor of a mother has no power to sell anything that a minor has inherited from his father, whether movable or immovable, and whether the property be involved in debt or free from it. But what he has inherited f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch mean unmixed benefit to the infant, such as accepting presents or gifts, and keeping them for him, a power which may be exercised either by a mooltakit, a brother, or an uncle, and also by the infant himself, provided he be possessed of discretion, the intention being only to open a door to the infant's receiving benefactions of an advantageous nature (vol. 4, bk. 44, p. 124)., 20. The examples given under the second head indicate the class of cases in which the acts of an unauthorized person who happens to have charge of a child are held to be binding on the infant's property. They also help to explain and illustrate the extent of such de facto guardian's powers. The permissibility of these acts depends on the emergency which gives rise to the imperative necessity for incurring liabilities without which the life of the child or his perishable goods and chattels may run the risk of destruction. For instance, he may stand in immediate need of aliment, clothing, or nursing; those wants must be supplied forthwith. He may own slaves or live-stock; food and fodder must be immediately procured. And these imperative wants may recur from time to time. Under such cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Syed Ali. I.L.R. 37 M. 514 In their judgment in this case the learned judges have examined the law at considerable length, and their decision appears to divide itself into three broad propositions: first, that as regards the powers of guardians, de jure as well as de facto, the Mahomedan law recognizes no distinction as to the nature or kind of property, namely, whether it is immovable or movable; secondly, that in substance the powers of an unauthorized person who has charge of an infant are co-extensive with those of a lawfully constituted guardian, except in so far that the acts of the former are subject to considerations of necessity or benefit to the infant; and, thirdly (and this seems to form the essence of the judgment), that dealings by a de facto guardian are neither void nor voidable, but are suspended until the minor on attaining majority exercises his option of either ratifying the transaction or disavowing it. 26. With regard to the first of the above propositions, their Lordships have already indicated their views. In their opinion the Mahomedan law, f6r obvious reasons, makes a distinction, and a sharp distinction, between goods and chattels (mata) and immo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate section entitled of Fazoolee Beea Correctly. Bai, or the sale of the property of another without his consent (vol. 2, bk. Hi. p. f 08). It says: If a person were to sell the property of another without his order the contract is complete, but it remains with the proprietor either to confirm or dissolve the sale as the pleases. Shafei is of opinion that the contract, in this case, is not complete, because it has not issued from a lawful authority, for that is constituted only by property or permission, neither of which exist in this case. It then proceeds to give the arguments of the Hanafi doctors in support of their view that the unauthorized contract is complete. And then it adds: If the proprietor should die. then the consent of the heirs is of no efficacy in the continuation of the fazoolee sale, in either case, that is, whether the price have been stipulated in money or in goods; because the contract rested entirely-on the personal assent of the deceased. 30. In other words, the so-called sale remains wholly ineffective until it receives the confirmation of the owner, to whom alone belongs the power of confirming it. If he dies before he has confirmed it, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in a particular matter without authority, but whose act is subsequently adopted or ratified by the principal which has the effect of validating it from its inception. The idea of agency in relation to an infant is as foreign, their Lordships conceive, to Mahomedan law as to every other system. 36. In this connection it should be noted, that whilst chapter 12 deals exclusively with the effect of dependent sales, in chapter 1C the rules relating to the powers of guardians are discussed at considerable length: Baillie's Mahomedan Law of Sale, p. 243; Fatawai Alamgiri, vol. 3, p. 229. The following rule lays down the conditions governing the sales by the executor (i.e., the appointed guardian) of the immovable property of an infant: And, according to modern decisions, the sale of immovable estate by an executor is lawful only in one of the three cases following: that is, where there is a purchaser willing to give double its value, or the sale is necessary to meet the minor's emergencies, or there are debts of the deceased, and no other means of paying them : Baillie's Mahomedan Law of Hale, p. 247; Fatawai Alamgiri, vol. 3, p. 233. 37. Having regard to the obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or be authorized therefore by the guardian of the minor; or the judge should grant her permission to pledge the infant's property. Then it is lawful; and the right to possession and user is established in the murtahin (pledgee or mortgagee) without power of sale : Fatawai Alamgiri, vol. 5, p. 638. 42. It seems to their Lordships that the power to sell cannot be wider than the power to mortgage. 43. For the foregoing considerations their Lordships are of opinion that under the Mahomedan law a person who has charge of the person or property of a minor without being his legal guardian, and who may, therefore, be conveniently 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 infant; nor can such transferee, if let into possession of the property under such unauthorized transfer, resist an action in ejectment on behalf of the infant as a trespasser. It follows that, being himself without title, he cannot seek to recover property in the possession of another equally without title. 44. Their Lordships are accordingly of opinion that the decree of the High Court, in so far ..... X X X X Extracts X X X X X X X X Extracts X X X X
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