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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 1135 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,