Mohd. Amin & Ors Vs. Vakil Ahmed
& Ors [1952] INSC 45 (22 October 1952)
BHAGWATI, NATWARLAL H.
MAHAJAN, MEHR CHAND AIYAR, N. CHANDRASEKHARA
CITATION: 1952 AIR 358 1952 SCR 1133
CITATOR INFO :
E&D 1965 SC1812 (17) E 1967 SC 155 (8) F
1971 SC2184 (9) R 1972 SC1279 (12)
ACT:
Mahomedan Law--Guardianship--De facto
guardian--Powers of alination--Benefit to minor, whether material--Whether
transaction can be upheld as family arrangement--Marriage--Co-habitation
-presumption of valid marriage.
HEADNOTE:
Under Mahomedan law a person who has charge
of the person or property of a minor without being his legal guardian, i.e., a
de facto guardian, has no power to convey to another any right or interest in
immoveable property which the transferee can enforce against the minor. The
question whether the transaction has resulted in a benefit to the minor is
immaterial in such cases.
Where disputes arose relating to succession
to the estate of a deceased Mahomedan between his 3 sons, one of whom was a
minor, and other relations, and a deed of settlement embodying an agreement in
regard to the distribution of the properties belonging to the estate was
executed by and between the parties, the eldest son acting as guardian for and
on behalf of the minor son: Held, that the deed was not binding on the minor
son as his brother was not his legal guardian; as the deed was void it cannot
be held as valid merely because it embodied a family arrangement; and the deed
was void not only qua the minor, but with regard to all the parties including
those who were sui juris.
Imambandi v. Mutsaddi [1918] 45 I.A.73 relied
on Mohemed Keramatullah Miah v. Keramatulla (A.I.R. 1919 Cal. 218)and Ameer
Hassan v. Md. Ejay Hussain (A.I.R. 1929 Oudh 134) commented upon.
1134 Under Mahomedan law if there was no
insurmountable obstacle to a marriage and the man and woman had cohabited with
each other continuously and for a prolonged period/he presumption of lawful
marriage would arise and it would be sufficient to establish a lawful marriage
between them.
Khaja Hidayut Oollah v. Rat Jan Khanam (1844,
3 Moo I.A. 295) referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 51 of 1951.
Appeal from the Judgment and Decree dated the
11h September, 1945, of the High Court of Judicature at Allahabad (Brand and
Waliullah JJ.) in First Appeal No. 212 of 1942 arising out of the Judgment and
Decree dated the 28th February, 1942, of the Court of the Civil Judge of
Azamgarh in Original Suit No. 4 of 1941.
S.P. Sinha (Shaukat Hussain, with him) for
the appellants.
C.K. Daphtary (Nuruddin Ahmed, with him) for
the respondents.
1952. Oct. 22. The judgment of the Court was
delivered by BHAGWATI J.--This is an appeal from the judgment and decree of the
High Court of judicature at Allahabad which set aside a decree passed by the
Civil Judge of Azamgarh decreeing the plaintiff's claim.
One Haji Abdur Rahman, hereinafter referred
to as -Haji" a Sunni Mohammedan, died on the 26th January, 1940, leaving
behind him a large estate. He left him surviving the plaintiffs 1 to 3, his
sons, plaintiff 4 his daughter and plaintiff 5 his wife, defendant 6 his
sister, defendant 7 his daughter, by a predeceased wife Batul Bibi and
defendants 1 to 4 his nephews and defendant 5 his grand-nephew. Plaintiffs case
is that immediately after his death the defendant 1 who was the Chairman, Town
Area qasba Mubarakpur and a member of the District Board, Azamgarh and
defendant 5 who was an old associate of his started propaganda against them,
that they set afloat a rumour to the effect that the plaintiffs 1 to 4 1135
were not the legitimate children of Haji and that the plaintiff 5 was not his
lawfully wedded wife, that the defendants 1 to 4 set up an oral gift of
one-third of the estate in their favour and defendant 5 set up an oral will
bequeathing one-third share of the estate to him and sought to interfere with
the possession of the plaintiffs over the estate and nearly stopped all sources
of income. It was alleged that under these circumstances a so-called deed of
family settlement was executed by and between the parties on the 5th April,
1940, embodying an agreement in regard to the distribution of the properties
belonging to the estate, that plaintiff 3 was a minor of the age of about 9
years and he was represented by the plaintiff 1 who acted as his guardian and
executed the deed of settlement for and on his behalf.
On these allegations the plaintiffs filed on
the 25th November, 1940, in the Court of Civil Judge of Azamgarh the suit out
of which the present appeal arises against the defendants 1 to 5 and defendants
6 and 7 for a declaration that the deed of settlement dated 5th April, 1940, be
held to be invalid and to establish their claim to their legitimate shares in
the estate of Haji under Mohammedan Law. The defendant 8 a daughter of the
plaintiff 5 whose paternity was in dispute was added as a party defendant to
the suit, the plaintiffs claiming that she was the daughter of the plaintiff 5
by Haji and the defendants 1 to 5 alleging that she was a daughter of the
plaintiff 5 by her former husband Alimullah.
The only defendants who contested the claim
of the plaintiffs were the defendants 1 to 5. They denied that the plaintiff 5
was the lawfully wedded wife and the plaintiffs 1 to 4 were the legitimate
children of Hail. They also contended that the deed of settlement embodied the
terms of a family settlement which had been bona fide arrived at between the
parties in regard to the disputed claims to the estate of Haji and was binding
on the plaintiffs.
It is significant to observe that the
defendants 6 and 7 who were the admitted heirs of Haji did not contest the
plaintiffs' claim at all.
1136 The two issues which were mainly
contested before the trial Court were, (I) Whether the plaintiffs 1 to 4 are
the legitimate issue of and the plaintiff 5 is the wedded wife of Abdul Rahman
deceased;
(2) Whether the agreement dated 5th April,
1940, was executed by the plaintiffs after understanding its contents fully or
was obtained from them by fraud or undue influence ? Was the said deed
insufficiently stamped? Was it beneficial to the minor plaintiffs ? As regards
the first issue there was no document evidencing the marriage between the
plaintiff 5 and Haji. The plaintiff 5 and Haji had however lived together as
man and wife for 23 to 24 years and the plaintiffs 1 to 4 were born of that
union. There was thus a strong presumption of the marriage of Haji with
plaintiff 5 having taken place and of the legitimacy of plaintiffs 1 to 4. The
trial Court did not attach any importance to the question of onus or presumption,
examined the evidence which was led by both the parties with a view to come to
a finding in regard to this issue, and found as follows:
"So far as Musammat Rahima's marriage
with Alimullah or another Abdul Rahman is concerned the evidence of both the
parties stands on the same level and is not worthy of much credit. I have
however, not the least hesitation to observe that so far as the oral evidence
and the circumstances of the case are concerned, they all favour the
plaintiffs. I, however, find it difficult to ignore the testimony of the
defendants' witnesses Shah Allaul Haq and Molvi Iqbal Ahmad ...................
Owing to the voluminous oral evidence adduced by the plaintiffs and the
circumstances that apparently favour them, I gave my best attention to this
case, but upon a careful consideration of the whole evidence on the record, I
am not prepared to hold that the plaintiffs 1 to 4 are the legitimate issues of
the plaintiff No. 5, the lawfully wedded wife of the deceased, Haji Abdul
Rahman. I frankly admit that the matter is not free from difficulty and 1137
doubt but to my mind the scale leans away from the plaintiffs and I am not
satisfied that their version is correct." On the second issue the learned
trial Judge came to the conclusion that the disputed compromise amounted to a
family settlement; that it was beneficial to the interests of the minor
plaintiff and that it was made by the parties willingly and without any fraud
or undue influence. On these findings the suit was dismissed with costs.
The plaintiffs filed an appeal to the High
Court of Judicature at Allahabad. After considering the several authorities on
the binding nature of family settlements cited before it came to the conclusion
that it did not bind the plaintiffs. As regards defendants 1 to 5 it was held
that there was no consideration whatsoever which could in any way support the
arrangement. Plaintiffs 4 and 5 being Purdanashin ladies, it was found that
they had no chance at any stage of the transaction of getting independent
advice in regard to the contents or the effect of the document which they were
executing and that even if the deed were valid otherwise it would not be
binding on them. It was further held that the plaintiff 3 who would be about 9
years of age at the time of the execution of the deed was represented in the
transaction by his brother who could not be the legal guardian of his property
and that the deed in so far as it adversely affected the interest of plaintiff
3 would not be binding on him. On the question of marriage and legitimacy the
High Court came to the conclusion that ii the trial Court had considered the
question of onus in its proper light and given the plaintiffs the benefit of
the initial presumption in favour of legitimacy and lawful wedlock under the
Mahomedan law, he would have recorded a finding in their favour. The defendants
to 5 had alleged that at the time of the commencement of sexual relations between
the plaintiff 5 and Haji, plaintiff 5 was the wife of one Alimullah who was
alive and that therefore the connection between the 1138 plaintiff 5 and Haji
was in its origin illicit and continued as such, with the result that the
presumption in favour of a marriage between the plaintiff 5 and Haji and in
favour of the legitimacy of plaintiffs 1 to 4 would not arise. The learned
trial Judge disbelieved the evidence led by the defendants 1 to 5 in regard to
this marriage between the plaintiff 5 and Alimullah. The High Court upheld the
finding and said:-"All these circumstances, to my mind, strongly militate
against the theory of a first marriage of Musammat Rahima Bibi with the man
called Alimullah. In this state of the evidence one cannot but hold that this
story of the marriage with Alimullah was purely an after-thought on the part of
the defendants 1 to 5 and it was invented only to get rid of the strong
presumption under the Mahomedan law in favour of the paternity of plaintiffs 1
to 4 and the lawful wedlock of the plaintiff 5." Having thus discredited
the theory of the first marriage of the plaintiff 5 with Alimullah the High
Court came to the conclusion that it was fully established that Musammat Rahima
Bibi was the lawfully wedded wife and that the plaintiffs 1 to 4 are the
legitimate children of Haji. The defendants 1 to 5 obtained leave to appeal to
His Majesty in Council and the appeal was admitted on the 10th January, 1947
Shri S.P. Sinha who appeared for the defendants 1 to 5 before us has urged the
self-same two questions, namely, (1) Whether the deed of settlement is binding
on the plaintiffs and (2) Whether the plaintiff 5 was the lawfully wedded wife
and the plaintiffs 1 to 4 are the legitimate children of Haji.
In regard to the first question, it is
unnecessary to discuss the evidence in regard to fraud, undue influence, want
of independent advice etc., as the question in our opinion is capable of being
disposed of on a short point.
It is admitted that the plaintiff 3 Ishtiaq
Husan was a minor of the age of about 9 years at the date of the deed, and he
was not represented as 1139 already stated by any legal guardian in this
arrangement.
The minor's brother had no power to transfer
any right or interest in the immovable property of the minor and such a
transfer if made was void. (See Mulla's Mahomedan Law, 13th Edition, page
303,section 364).
Reference may be made to the decision of
their Lordships of the Privy Council in Imambandi v. Mutsaddi(1). In that case
the mother who was neither the legal guardian of her minor children nor had
been appointed their guardian under the Guardian and Wards Act had purported to
transfer the shares of her minor children in the property inherited by them
from their deceased father. Mr. Ameer Ali who delivered the judgment of the
Board observed at page 82 as follows :The question how far, or under what
circumstances according to Mahomedan law,a mother's dealings with her minor
child's property are binding on the infant has been frequently before the
courts in India. The decisions, however, are by no means uniform, and betray
two varying tendencies: one set of decisions purports to give such dealings a
qualified force; the other declares them wholly void and ineffective. In the
former class of cases the main test for determining the validity of the
particular transaction has been the benefit resulting from it to the minor; in
the latter the admitted absence of authority or power on the part of the mother
to alienate or incumber the minor's property." The test of benefit
resulting from the transaction to the minor was negatived by the Privy Council
and it was laid down 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 "defacto guardian," has no power
to convey to another any right or interest in immovable property which the
transferee can enforce against the infant.
(1) (1918) 45 1. A. 73.
1140 Shri S.P. Sinha relied upon a decision
of the Calcutta High Court reported in Mahomed Keramutullah Miah v. Keramutulla
(1) where it was held that there was nothing in the doctrine of family
arrangements opposed to the general principle that when it was sought to bind a
minor by an agreement entered into on his behalf, it must be shown that the
agreement was for the benefit of the minor;that if improper advantage had been
taken of the minor's position, a family arrangement could be set aside on the
ground of undue influence or inequality of position or one or other of the
grounds which would vitiate such arrangement in the case of adults; but where
there was no defect of this nature, the settlement of a doubtful claim was of
as much advantage to a minor as to an adult, and where a genuine dispute had
been fairly settled the dispute could not be reopened solely on the ground that
one of the parties to the family arrangement was a minor.
This decision was reached on the 19th July,
1918, i.e., almost 5 months after the decision of their Lordships of the Privy
Council, but it does not appear that the ruling was brought to the notice of
the learned Judges of the Calcutta High Court. The test of the benefit
resulting from the transaction to the minor which was negatived by their Lordships
of the Privy Council was applied by the learned Judges of the Calcutta High
Court in order to determine whether the family arrangement which was the
subject-matter of the suit before them was binding on the minor.
Shri S.P. Sinha next relied upon a decision of
the Chief Court of Oudh, Ameer Hasan v. Md. Ejaz Husain(2). In that case an
agreement to refer to arbitration was entered into by the mother for her minor
children and an award was made by the arbitrators. The scheme of distribution
of properties promulgated in the award was followed without any objection
whatever for a long period extending over 14 years and proceedings were taken
at the instance of the minors for recovery of possession by actual partition of
their shares in the properties. The Court held (1) A.I.R. 1919 Cal. 218. (2)
A.I.R. 1929 Oudh 134.
1141 that the reference to arbitration could
not be held binding on the minors and the award could not be held to be an
operative document, but if the scheme of distribution promulgated in the award
was in no way perverse or unfair or influenced by any corruption or misconduct
of the arbitrators and had been followed without any objection whatever for a
long period extending over 14 years, it would as well be recognised as a family
settlement and the court would be extremely reluctant to disturb the
arrangement arrived at so many years ago. This line of reasoning was deprecated
by their Lordships of the Privy Council in Indian Law Reports 19 Lahore 313 at
page 317 where their Lordships observed "it is, however, argued that the
transaction should be upheld, because it was a family settlement. Their
Lordships cannot assent to the proposition that a party can, by describing a
contract as a family settlement, claim for it an exemption from the law governing
the capacity of a person to make a valid contract." We are therefore
unable to accept this case as an authority for the proposition that a deed of
settlement which is void by reason of the minor not having been properly
represented in the transaction can be rehabilitated by the adoption of any such
line of reasoning.
If the deed of settlement was thus void it
could not be void only qua the minor plaintiff 3 but would be void altogether
qua all the parties including those who were sui juris. This position could not
be and was not as a matter of fact contested before us.
The contention of the defendants 1 to 5 in
regard to the lawful wedlock between plaintiff 5 and Haji and the legitimacy of
the plaintiffs 1 to 4 is equally untenable.
The plaintiffs had no doubt to prove that the
plaintiff 5 was the lawfully wedded wife and the plaintiffs 1 to 4 were the
legitimate children of Haji. Both the Courts found that the factum of the
marriage was not proved and the plaintiffs had therefore of necessity to fall
back upon the presumption of marriage arising in Mahomedan law. If that presumption
of marriage arose, there would be no difficulty in 1142 establishing the status
of the plaintiffs 1 to 4 as the legitimate children of Haji because they were
admittedly born by the plaintiff 5 to Haji. The presumption of marriage arises
in Mahomedan law in the absence of direct proof from a prolonged and continual
cohabitation as husband and wife.
It will be apposite in this connection to
refer to a passage from the judgment of their Lordships of the Privy Council in
Khajah Hidayut Oollah v. Rai Jan Khanurn(1). Their Lordships there quoted a
passage from Macnaghten's Principles of Mahomedan Law:-"The Mahomedan
lawyers carry this disinclination (that is against bastardizing) much further;
they consider it legitimate of reasoning to infer the existence of marriage
from the proof of cohabitation ......... None but children who are in the
strictest sense of the word spurious are considered incapable of inheriting the
estate of their putative father. The evidence of persons who would, in other
cases, be considered incompetent witnesses is admitted to prove wedlock, and,
in short, where by any possibility a marriage may be presumed, the law will
rather do so than bastardize the issue, and whether a marriage be simply
voidable or void ab initio the offspring of it will be deemed legitimate
........................... This I apprehend, with all due deference, is
carrying the doctrine to an extent unwarranted by law; for where children are
not born of women proved to be married to their father, or of female slaves to
their fathers, some kind of evidence (however slight) is requisite to form a
presumption of matrimony......................................The mere fact of
casual concubinage is not sufficient to establish legitimacy ;and if there be
proved to have existed any insurmountable obstacle to the marriage of their
putative father with their mother, the children, though not born of common
women, will be considered bastards to all intents and purposes." Their
Lordships deduced from this passage the principle that where a child had been
both to a father, of a mother where there had been not a mere casual (1) (1844)
3 Moore's Indian Appeals concubinage, but a more permanent connection, and
where there was no insurmountable obstacle to such a marriage, then according
to the Mahomedan law, the presumption was in favour of such marriage having
taken place.
The presumption in favour of a lawful
marriage would thus arise where there was prolonged and continued cohabitation
as husband and wife and where there was no insurmountable obstacle to such a
marriage, eg., prohibited relationship between the parties, the woman being an
undivorced wife of a husband who was alive and the like. Further illustrations
are to be found in the decisions of their Lordships of the Privy Council in 21
Indian Appeals 56 and 37 Indian Appeals 105 where it was laid down that the
presumption does not apply if the conduct of the parties was incompatible with
the existence of the relation of husband and wife nor did it apply if the woman
was admittedly a prostitute before she was brought to the man's house (see
Mulla's Mahomedan Law, p. 238, section 268). If therefore there was no insurmountable
obstacle to such a marriage and the man and woman had cohabited with each other
continuously and for a prolonged period the presumption of lawful marriage
would arise and it would be sufficient to establish that there was a lawful marriage
between them.
The plaintiff 5 and Haji had been living as
man and wife for 23 to 24 years openly and to the knowledge of all their
relations and friends. The plaintiffs 1 to 4 were the children born to them.
The plaintiff 5, Haji, and the children were all staying in the family house
and all the relations including the defendant I himself treated the plaintiff 5
as a wife of Haji and the plaintiffs 1 to 4 as his children. There was thus
sufficient evidence of habit and repute. Haji moreover purchased a house and
got the sale deed executed in the names of the plaintiffs 1 and 2 who were
described therein as his sons. The evidence which was led by the defendants 1
to 5 to the contrary was discarded by the High Court as of a negative character
1144 and of no value. Even when the deed of settlement was executed between the
parties the plaintiff 5 was described as the widow and plaintiffs 1 to 4 were
described as the children of Haji. All these circumstances raised the
presumption that the plaintiff 5 was the lawfully wedded wife and the
plaintiffs 1 to 4 were the legitimate children of Haji.
The result therefore is that both the
contentions urged by the defendants 1 to 5 against the plaintiffs' claim in
suit fail and the decree passed in favour of the plaintiffs by the High Court
must be affirmed.
It was however pointed out by Shri S.P. Sinha
that the High Court erred in awarding to the plaintiffs mesne profits even
though there was no demand for the same in the plaint. The learned
Solicitor-General appearing for the plaintiffs conceded that there was no
demand for mesne profits as such but urged that the claim for mesne profits
would be included within the expression "awarding possession and
occupation of the property aforesaid together with all the rights appertaining
thereto." We are afraid that the claim for mesne profits cannot be
included within this expression and the High Court was in error in awarding to
the plaintiffs mesne profits though they had not been claimed in the plaint.
The provision in regard to the mesne profits will therefore have to be deleted
from the decree.
We dismiss the appeal of the defendants 1 to
5 and affirm the decree passed by the High Court in favour of the plaintiffs,
deleting therefrom' the provision in regard to mesne profits. The plaintiffs
will of course be entitled to their costs throughout from the defendants 1 to
5.
Appear dismissed.
Agent for the appellants': V.P.K. Nambiyar.
Agent for the respondents: B.P. Maheshwari.
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