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PETITIONER:

MOHD. AMIN AND OTHERS

Vs.

RESPONDENT:

VAKIL AHMED AND OTHERS.

DATE OF JUDGMENT:

22/10/1952

BENCH:

BHAGWATI, NATWARLAL H.

BENCH:

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 settle-

ment 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 continously and for a prolonged period/he

presumption of lawful marriage would arise and it would be

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sufficient to establish a lawful marriage between them.

Khaja Hidayut Oollah v. Rat Jan Khanam (1844, 3 Moo I.A.

295) referred to.

JUDGMENT:

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 Allaha-

bad (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 appel-

lants.

C.K. Daphtary (Nuruddin Ahmed, with him) for the re-

spondents.

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 plain-

tiffs 1 to 3, his sons, plaintiff 4 his daughter and plain-

tiff 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. Plain-

tiffs 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 plain-

tiffs 1 to 4

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were not the legitimate children of Haji and that the plain-

tiff 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 settle-

ment was executed by and between the parties on the 5th

April, 1940, embodying an agreement in regard to the distri-

bution 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 Novem-

ber, 1940, in the Court of Civil Judge of Azamgarh the suit

out of which the present appeal arises against the defend-

ants 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

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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 benefi-

cial to the minor plaintiffs ?

As regards the first issue there was no document evi-

dencing 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 pre-

sumption, 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 plain-

tiffs 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 willing-

ly and without any fraud or undue influence. On these find-

ings 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

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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 repre-

sented 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 con-

nection 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 mar-

riage of the plaintiff 5 with Alimullah the High Court came

to the conclusion that it was fully established that Musam-

mat 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 Lord-

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ships of the Privy Council in Imambandi v. Mut- saddi(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 deliv-

ered 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, howev-

er, are by no means uniform, and betray two varying tenden-

cies: 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, there- fore, 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 Lord-

ships 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 distribu-

tion of properties promulgated in the award was followed

without any objection whatever for a long period extending

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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 pro-

mulgated in the award was in no way perverse or unfair or

influenced by any corruption or misconduct of the arbitra-

tors 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 rehabil-

itated 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 presump-

tion of marriage arising in Mahomedan law. If that presump-

tion 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 Lord-

ships 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

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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 legiti-

macy ;and if there be proved to have existed any insurmount-

able 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 295 at p. 317.

1143

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 cohabita-

tion as husband and wife and where there was no insurmount-

able obstacle to such a marriage, eg., prohibited relation-

ship between the parties, the woman being an undivorced wife

of a husband who was alive and the like. Further illustra-

tions 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 insur-

mountable obstacle to such a marriage and the man and woman

had cohabited with each other continuously and for a pro-

longed 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 dis-

carded by the High Court as of a negative character

1144

and of no value. Even when the deed of settlement was exe-

cuted between the parties the plaintiff 5 was described as

the widow and plaintiffs 1 to 4 were described as the chil-

dren 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.

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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 plain-

tiffs, 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.

END OF VoL. III,