MOHD. AMIN AND OTHERS versus VAKIL AHMED AND OTHERS.

S.C.R.

SUPREME COURT REPORTS

1133

The only order which we need pass in this appeal before us under the appeal ft; allowed, the decree of the trial court is restored, and each party do bear and pay. its own costs of this appeal.

the circumstances

i"' that

Appeal allowed.

Agent for the appellants: C. P. Lal. Agent for the respondent : S. S. Shukla.

1952

Shrimati Hil'a Devi and Others v. District Board, Shahjahanpur •.

Bhagwati /.

MOHD. AMIN AND OTHERS v. VAKIL AHMED AND OTHERS.

1952

Oct. 22.

[MEHER CHAND MAHAJAN, CHANDRASEKHARA A1YAR and BHAGWATI JJ.]

Mahomedan Law-Guardianshi[>-De facto guardian-Powers of alienation-Benefit to minor, whether material-Whether transac tion can be upheld as family arrangement-marriage--Co-habitation -Presumption of valid marriage.

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 can immoveable property which or interest enforce against the minor. The question whether the transaction has resulted in a benefit to the minor is immaterial in such cases.

transferee

the

in

.,

to

the distribution of

Where disputes arose, relating

in regard the estate was executed by and between

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 the properties belonging the parties to the eldest son acting as guardian for and on behalf of the minor son : 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 family the deed was void not only qua the minor, arrangement ; and sui but with regard to all the parties including those who were juris.

it embodied a

l-I eld,

lmambandi v. Mutsaddi [1918] 45 I.A. 73 relied on. Mahomed (A.LR. 1919 Cal. 218) and (A.I.R. 1929 Oudh 134)

Keramatullah Miah v. Keramatulla Ameer Hasan v. Md. Ejay Hussain commented upon.

1952

iMohd. Amin and Others v. :Vakil Ahmed and Others.

.Bhagwati /.

1134

SUPREME COURT REPORTS

[1952]

Under Mahomedan law if thexe was no insurmountable obstacle to 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 a lawful marriage between them.

Khaja Hidayut Ool/ah v. Rai fan Khanam (1844, 3 Moo I.A.

295) referred to. Crv1L

APPELLATE

JuR1so1cTION : Civil Appeal

No. 51 of 1951.

Appeal from

the Judgment and Decree dated

the 11th September, 1945, of the High Court of Judicature at Allahabad (Brand and Waliullah JJ.) in First Ap- peal 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 Allaha- bad 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 the 26th "Haji" a Sunni Mohammedan, died on January, 1940, large estate. leaving behind him a He left him surviving the plaintiffs 1 to 3, his sons, plaintiff 4 his daughter and plaintiff 5 his wife, defen- dant 6 his sister, defendant 7 bis daughter, by a pre- deceased wife Batu! Bibi and defentlants 1 to 4 his neph~ws and defendant 5 his grand-nephew. Plaintiffs case the defen- immediately after His death dant 1 who was the Chairman, Town Area qasba the District Boa.rd, Mubarakpur and a member of Azamgarh and defendant 5 who was an old associate of his started propaganda against them, that they set that the plaintifl's 1 to 4 afloat a rumour to the effect

that

is

I

1952

Mohd. Amin and Others

v. Vakil Ahme~ and Others.

Bhagwati f ..

f

S.C.R.

SUPREME COURT REPORTS

1135

It was alleged

that under fam'ily

interfere with the possession of

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 the plaintiffs over the estate and nearly stopped all sources these circum- of income. stances a so-called deed of settlement was executed by and between the parties on the 5th April, 1940, embodying an agreement in regard to the dis- tribution 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 exec;uted the deed of settlement for and on his behalf. On these allegations the pla.lntiff 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 defen- dants 6 and 7 for a declaration that the deed of settle- ment dated 5th April, 1940, be held to be invalid and ith.eir 1legiit'im.ate ~hares in to establish their claim to 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 defen- dant to the suit, the plaintiffs claiming that she was the daughter of the plaintiff 5 by Haji and the defen- dants 1 to 5 alleging that she was a daughter of the plaintiff 5 by her former husband Alimullah.

' _f

The only defendaats 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 Haji. They also contended 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 tio the estate of Haji and was binding on the plaintiffs.

that

It is significanlt

the defendants 6 and 7 who were the admitted heirs of Haji did not contest the plaintiff's claim at all.

to observe

that

1952

Nohd. Amin and Others v. Vakil Ahmed and Others.

Bhagwati f.

1136

SUPREME COURT REPORTS

[1952]

The two issues which were mafoly contested before the trial Court were, (1) Whether the plaintiffs 1 to 4 are the legitimate issue of and the plaintiff 5 is the wedded wife of Abdul Rahman deceased ;

.

l

the agreement dated 5th April, (2) Whether 1940, was executed by the plaintiffs after understand- them by ing its contents fully or was obtained from fraud or undue influence ? Was the said deed insuffi- . ciently stamped? Was rrunor plaintiffs?

it beneficial

the

to

As· regards

the marriage between

the first issue there was no document the plaintiff 5 and evidencing Haji. The plaintiff 5 and Haji had however lived together as man and wife for 23 to 24 years and the plaintiffs l to 4 were born of that union. There was the marriage of Ha ii ·thus a strong· presumption of with plaintiff 5 huing taken place and of the legiti- macy of plaintiffs 1 to 4. The trial Court did not attach any importance to the question of onus or pre- led by sumption, examined in both the pames with a view to come to finding regard to this issue, and found as follows :

the evidence which was

to 'ignore

it difficult

is concerned

"So far as Musammat Rahima's , marriage with Alimullah or anotl1er Abdul Raliman 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 the case are oral evidence and the circumstances of concerned, they all favour the plaintiffs. I, however, the testimony of the defen- find dants' witnesses Shah Allaul Haq and Molvi Iqbal Ahmad ................ Owing 'to the voluminous oral evidence adduced by the circum- . ·Stances that , apparently favour them, I gave my best attention to this case, but upon a careful considera- tion of the whole evidence on the record, I am not pre- pared to hold that the plaintiffs 1 to 4 are the legiti- mate 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

the plaintiffs and

r

f

:S.C.R.

SUPREME COURT REPORTS

1137

<loubt 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 that the disputed compromise amounted the conclusion to a family settlement; that is was beneficial the interests of the minor plaintiff and that it was made by the par~ie5; :WiUlingly and without any fraud or undue influence. On these findings the suit was dis- missed with costs .

to

1952

Mohd. Amin atttl Others v. Vak_il Ahmed anti Others.

Bhagwati T.

considering

at Allahabad. After

The plaintiffs filed an appeal to the High Court of the Judicature the binding nature of family several authorities on ·settlements cited before It, it came to the conclusion that it did not bind the plaintiffs. As regards defend- ants 1 to 5 'it was held that there was no considera- tion whatsoever which could in any way support the arrangement. Plaintiffs 4 and 5 being Purdanashin that they had no chance at any ladies, it was found stage of the transaction of gettilng ilndependent advice in regard to the contents or the affect qf 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 re:presentied transaction by his brother who could not be tl1e. legal guardian of his that the deed in so far as it adversely property and -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 if the trial Court had considered the question of onus in its proper light and given the plaintiffs the benefit of the initial presumptipn in favour of legitimacy and law- ful wedlock under the Mahomedan Law, he would have recorded a finding in their favour. The defendants 1 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 Alimu!lah who was alive and the

the connection between

that therefore

in the

•

i,

I(

~ ~ r I

f

\

~ ·~ ~

I I I,

'

1138

SUPREME COURT REPORTS

1952

Mohd. Amin antl Others v. Vakil Ahmed and Others.

Bhagtuati J.

plaintiff 5 and Haji was "in it:S i>rigin illicit and con- tinued 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 ti> this marriage between the plaintiff 5 and Alimullah. The High Court upheld the finding and said :-

In

the

that

the Mahomedan

"All these circumstances,

the paternity of plaintiffs I

strongly to my mind, theory of a first marriage of militate against the man called Ali- Musammat Rahima Bibi with mullah. this st:a;te of evidence one cannot but hold this story of the marnage with Alimullah was purely an after-thought on the part of the defend- ants I to 5 and it was invented only to get rid of the in strong presumption · under law favour of to 4 and the lawful wedlock of the plaintiff 5." the

the first marriage of the plaintiff 5 with Alimullah the High Court came to the conclusion that it was fully esta- the lawfully blished that Musarnmat Rahima Bibi was wedded wife and that the plaintiffs 1 to 4 are the legitimate children of Haji. The defendants to 5 I obtained to His Majesty in Council and the appeal was admitted on the 10th January, 1947.

thus discredited

theory of

to appeal

Having

leave

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 I 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 influ- ence, wam of independent advice etc~ as the · question in our opinion is capable of being disposed of on a ~hort Ishtiaq point. that Husan was a minor of the age of about 9 years at the the deed, and . he was not represented as date of

the plaintiff 3

is admitted

It

J·

II

•

-

.. ,_

r'

l' \

S.C.R.

SUPREME COURT REPORTS

1139

legal guardian in

already stated by any this arrange- ment. 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. Mut saddi (1). In that case the mother who was neither the legal guardian of her minor children nor had been ap- pointed their guardian under the Guardian and Wards Act had purported to transfer the shares of her minor children in the property mherited by them from their the deceased the Board observed at page 82 as judgment of follows:-

father. Mr. Ameer Ali who delivered

1952

Mohd. Amin and Others

v. Vakil Ahmed and Others.

Bhagwati /.

two varying

"The question how far, or under what circums- tances according to Mahomedan law, a mother's deal- ings 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 tendenci/es : one set of decisions betray the purports to give such dealings a qualified force; In other declares them wholly VQid and ineffective. the former class of cases the main test for determining the the validity of the particular transaction has been benefit resulting from it to the minor; in the latter, the admitted absence of authority or power on the part of the minor's property."

to ahenate or

the mother

incumber

to The test of benefit resulting from the transaction 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 "de-facto guardian," has to another any right or interest no power to convey can in enforce against the infant. (1) (1918) 45 I.A. 73. 18-10 S. c. India/71

immovable property which

transferee

the

1952

Mohd. Amin aqt/ Others

v. l(.a{il Ah.med and Others.

Bhagw_ati ],

U.40

SUPREME COURT REPORTS

[19521

reported

Shri · S. P. Sinha relied upon a decision of the Calcutta in Mahomed Keramutullah High Court Miah v. Keramutulta(') wh,ere it was held that there was nothing in the doctrine of family arrangements op- posed to the general principle that when it was sought to bind a minor by an agreement entered into .on his behalf, it .must ·be shCJ'(>'n that the agreement was for the benefit of the niinor; improper advan- ta~e had been taken of the minor's position, a family arrangement.._ could be set as·1de on the ground of undue ipfluer:c~ or _inequality o~ position or one or other. of the grounds which would v1t1ate such arrangement in the ca~e of adults; but where there \vas no defect of this nattire, the settlement of a •doubtful claim was of as much advantage to a minor as to an adult, and--Wrfere l' genuiri.e dispute ·had been fairly settled the dispute could not be re-opened solely on the ground that one of the parties to •the 'family arrangement was a"minor.

that if

This dedsion was reached .'on

the 19th July, 1918, I.e., almost 5 moi=i.ths 1 after the decision of their Lord- ships of the Privy Col!flcil, but it does .not appear that the ruling w~s brought to the notice of the learned Judges qf the. Calcutta High Court. The test of the benefit, resulting from the minor whiFh was n_egatived, by their Lordships of the Privy i;y th~ learned Judges of the ,Q>,Wlcil }Vas applied, Ga1cutt~ f{igh Ci>1.!_rf in prder to determine wh~ther the f.amily_, aqangeµient }Vhic~ was the subject-matter of the suit before them wa~ binding on the mii).or.

the transacti/on

to

to

an

into

th~t ' ease

arbittaiion was

agreement .by

Shri S. P. Sinha next relied upon a decision of the Chief Court of Oudh, Ameer Hasan v. Md. Ejaz HufCiin(2). ' Iri re~er to the 'mother l!ntered for her hlinor' children ·arid ah' · awatd was made by tlie '.arbitrators. The schc!'me of d~t'.ribution of :pr~ pfrties. promulgated. in the award was followed without agy qbje~iioq whateyer fo,t a long period extending over 14' yea~s :md. proc,eedin¥s . were take~. at the instance ~f the minors for recovery of p9~sessmn by actual partl- tion of their shares in the properties. The Court held (2) A.I.R., 1929 Oudh p4.

(1) A.I.R. 1919 Cal. 218.

i' ~ •

J9j2

Mohd. -Amin and Othcts

v. Vakjl Ahmed and 'Others.

Bhagwati /.

S.C.R.

SUPREME COURT REPORTS

1141

family

for a

settlement and

that the reference to arbitration could not be held bind' ing on the mmors and the award coulsJ not be' held to be an operative document, but if the scheme of distri bution promulgated in the ~ward was In no way. per i,nf!uenced by any corruption or verse or unfair on misconduct of the arbitrators and had been followed without any objection whatever long period extending over 14 years; it ·w0iiJd as well be recognis the court would be ed as a extremely reluctant to disturb the arrangement arriv5!d at so many years ago. This line of, reasoning was deprecated by their Lordships of the Priry Council in Indian Law 'Reports 19 Lahore 313 at page 317 where their Lordships observed "it is, however, argued that the it was a family to the proposition that a party can, by describing a .con, as a family settlement, claim for it an exemp tract the law governing \he capacity. of a person tion from 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 propei;ly represented in tl;i.e transaction can be rehabilitated by of any such line ,of reasoning.

settlement. Their Lordships cannot assent

transactioo should be upheld, because

the adoption

If the deed of settlement was thus .void it could not be vo'd only qua the minor Plaintiff 3 but would be void those who were sui juris. This position could not be and was ,not as a matter of fact contested before us.

.al.together qua all

the parties

including

The contention of the defendants 1 to 5 in regard· to lawful weolock between plainfiff . 5 and Haji the and the legitimacy of the plai11tiffs 1 to 4 is equally untenable. The plaintiffs had no Cloubt to prove that the plaintiff 5 was the lawfully wedded wife and· the plaintiffs to 4 were the legitimate children of Haji. Both the COurts found that the factun1 of the marriage .Ii.ad therefore of was not proved and the presnmption of necc:Ssity· to If that presump marriage arising in Mahoniedan law. tion of mqrri;ig\: arose, there would be no difficulty· -in

fall back upon

the plaintiffs

l

1952

Mohd. Amin and Others

v. Vakil Ahmed a;id Others.

Bhagwatl /.

1142

SUPREME COURT REPORTS

(1952]

to 4 as

the Plaintiffs l

establishing the status of the legitimate children of Haji because they were admit- tedly born by the plaintiff 5 to Haji. The presumption in Mahomedan law in the absence of marriage arises of direct proof from a prolonged and oontinual cohabi- tation as husband and wife. It will be apposite in this connection to refer to a passage from the judgment the Privy Council in Khajah of their Lordships of fan Khanum (' ). Their Lord- Hidayut Oollah v. Rai ships from Macnaghten's there quoted a passage Principles of Mahomedan Law:-

the

further;

"The Mahomedan Lawyers carry this disinclination they is against bastardizing) much (that consider it legitimate of reasoning no infer the exist- ence of marriage from the proof of cohabitation.· ...... . None but children who are in the strictest sense of the word spurious. are considered incapable of inheriliing the estate of their putative father. The evidence of per- sons, who would, in other cases, be considered incom- petent witnesses is admitted to prove wedlock, and, in short, where by any possibility a marriage may be presumed, law w'1ll 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 is not sufficient to establish fact of casual concubinage legitimacy; and if there be proved to have existed any in insurmountable obstacle to the marriage of their puta- tive father with their mother, the children, though not born of common women, will be considered bastards to all intents and purposes." Their Lordships deduced

the principle that where a child had been born to a father, of a mother where there had been not a mere casual

this Passage

from

(I) (1844) 3 Moore's Indian Appeals 295 at P. 317.

' ;•

A

~·

•

1952

Mohd. Ami1' and Others v. Vakil Ahmed and Others.

Bhagwati /.

(

;

~'

-

S.C.R.

SUPREME COURT REPORTS

1143

concubinage, but a more permanent connection, and to such there was no insurmountable obstacle where a marriage, the Mahomedan Law, the presumption was in favour of such marriage having taken place.

then according

to

the like. Further

relationship between

insurmountable obstacle

the presumption does not apply Vf

The presumption m favour of a lawful marriage would thus arise where there was prolonged and con- tinued cohabitation as husband and wife and where to such a there was no marriage, e.g., prohibited the parties, the woman being an undivorced wife of a husband who was alive and illus- trations are to be found in the decisions of their Lord- ships of the Privy Council in 21 Indian Appeals 56 and 37 Indian Appeals 105 where it was laid down the conduct that of the parties was incompatible with the existence of if the relation of husband and wife nor did it apply the woman was admittedly a prostitute she was brought to the man's house (see Mulla's Maho- If therefore there medan Law, p. 238, section 268). was no to such a marriage and the man and woman had cohabited with each other continuously and for a prolonged period the pre- sumption of lawful marriage would arise and it would be sufficient to establish that there was a lawful mar- riage between them.

insurmountable obsQacle

before

the relations

their relations and

The plaintiff 5 and Haji had been living as man and wife for 23 to 24 yearn openly and to the knowledge of friends. The plaintiffs I to 4 all were the children born to them. The plaintiff 5, Haji, and the children were all staying in the family house the defendant 1 him- including and all self treated the plaintiff 5 as a wife of Haji and the thus plaintiffs 1 sufficient evidence of habit and repute. Haji more- over purchased a house and got the sale deed executed in the names of the plaintiffs I and 2 who were des- cribed 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 19-10 s. a. India/71

to 4 as his children. There was

1144

SUPREME COURT REPORTS

[1952]

1952

Mohd. Amin and Others v. Vakil Ahmed and Others.

Bhagwati /.

and of no value. Even when the deed of settlement was executed between the parties the plaintiff 5 was des- cribed as the widow and plaintiffs 1 to 4 were described as the children of Haji. All these circumstances raised the plaintiff 5 was the lawfully the presumption that wedded wife and the plaintiffs 1 to 4 were the legiti- mate children of Haji.

)

therefore

The result

is rhe defendants l to 5 against in suit fail and the decree passed

urged by claim of the plaintiffs by the High Court must be affirmed.

contentions the plaintiffs' favour

that both the

in

to

in

for

awarding

the same

in though

the expression

the plaint. The

the rights appertaining

It was however pointed out by Shri S. P. Sinha the that the High Court erred there was no plaintiffs mesne profits even learned demand the plaintiffs conceded Solicitor-General appearing for that there was no demand for mesne profits as such but urged that the claim for mesne profits would be "awarding passession included within together . with and occupation of the property aforesaid all thereto." We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in in awarding error 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 to 5 and affirm the decree passed by the High Coutt 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 l to 5.

the defendants l

to

Appeal dismissed.

Agent for the appellants: V.P.K. Nambiyar. Agent for the respondents: B. P. Maheshwari.

END OF VoL. III.