1957 (12) TMI 41 - HC - Indian Laws

Summary

Issues Involved:
1. Competency of the mother to act as a legal guardian under Mahomedan Law.
2. Validity of the sale deed (Ext. II) executed by the mother on behalf of the minor.
3. Customary law versus Mahomedan Law regarding guardianship.
4. Right of the mother to execute documents on behalf of the minor.
5. Consideration and necessity supporting the sale deed.
6. Administration of the estate by heirs.
7. Effect of the Shariat Act and Madras Civil Courts Act on the case.
8. Judicial recognition of customs.
9. Binding nature of the sale deed on the minor's share.
10. Repayment of debts and mesne profits.

Detailed Analysis:

1. Competency of the Mother to Act as a Legal Guardian under Mahomedan Law:
Under Mahomedan Law, only the father, the executor appointed by the father's will, the father's father, and the executor appointed by the will of the father's father are entitled to be guardians of the property of a minor. The mother, brother, or uncle does not have the right to act as a guardian for a minor's property. This principle is well established in Mulla's Mahomedan Law and has been recognized by the Privy Council in Imambondi v Haji Mutsaddi and the Supreme Court in Mohd. Amin v Vakil Ahmed.

2. Validity of the Sale Deed (Ext. II) Executed by the Mother on Behalf of the Minor:
The lower court found that Ext. II, executed by the mother as the guardian, was not binding on the minor's share. The court upheld the plaintiff's claim that his mother was not his legal guardian and was not competent to execute Ext. II on his behalf. The sale deed was thus set aside concerning the plaintiff's 14/80 share.

3. Customary Law versus Mahomedan Law Regarding Guardianship:
Defendant 6 contended that the family was governed by custom rather than strict Mahomedan Law, which allowed the mother to act as a guardian. However, the court found no evidence of a definite, uniform, and invariable custom that would override Mahomedan Law. The evidence presented did not prove the existence of such a custom.

4. Right of the Mother to Execute Documents on Behalf of the Minor:
The court reiterated that under Mahomedan Law, the mother has no power to deal with the minor's property beyond pledging movables for imperative necessities. The mother, acting as a de facto guardian, cannot legally convey any right or interest in immovable property on behalf of the minor.

5. Consideration and Necessity Supporting the Sale Deed:
The lower court found that Ext. II was supported by consideration and was used to discharge debts of the deceased Moidunny. However, since the mother was not a legal guardian, the sale deed could not bind the minor's share. The plaintiff was directed to pay his proportionate share of the sale consideration to defendant 6.

6. Administration of the Estate by Heirs:
The court examined whether the sale deed could be considered an act of administration by the adult heirs. It was held that under Mahomedan Law, the estate vests immediately in the heirs, and one heir cannot represent others without being appointed by the court. The Full Bench decision in Abdul Majeeth v Krishnamachariyar was cited, which disapproved the notion that one heir could administer the estate on behalf of others.

7. Effect of the Shariat Act and Madras Civil Courts Act on the Case:
The Shariat Act, enacted in 1937, mandates that Muslim Personal Law governs matters of guardianship. However, since Ext. II was executed in 1935, the court considered the law as it stood then. The Madras Civil Courts Act allowed for the application of custom unless altered by legislative enactment. The court found that the Shariat Act did not retrospectively affect the case.

8. Judicial Recognition of Customs:
For a custom to be judicially recognized, it must be definite, uniform, and invariable. The court found that the evidence did not establish a consistent custom regarding the mother's right to act as a guardian. The documents and testimonies presented showed variations in practice, thus failing to prove a binding custom.

9. Binding Nature of the Sale Deed on the Minor's Share:
The court held that Ext. II was not binding on the minor's share as it was executed by the mother, who was not a legal guardian. The sale deed was set aside concerning the plaintiff's 14/80 share, and the plaintiff was required to pay his proportionate share of the debts.

10. Repayment of Debts and Mesne Profits:
The lower court directed that the plaintiff could recover his share of the properties only after paying his proportionate share of the sale consideration. The court upheld this direction, and the plaintiff was also entitled to past and future mesne profits.

Conclusion:
The appeal was dismissed, and the lower court's decree was upheld, affirming that the sale deed (Ext. II) executed by the mother was not binding on the plaintiff's share. The plaintiff was required to pay his proportionate share of the debts, and the properties were to be partitioned accordingly.