S.C.R.

SUPREME COURT REPORTS 1133

The only order which we need pass in this appeal before us under the circumstances i"' that 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.

Appeal allowed.

Agent for the appellants: C. P. Lal.

Agent for the respondent : S. S. Shukla.

MOHD. AMIN AND OTHERS

VAKIL AHMED AND OTHERS.

[MEHER CHAND MAHAJAN, CHANDRASEKHARA

A1YAR and BHAGWATI JJ.]

Mahomedan Law-Guardianshi[>-De facto guardian-Powers of alienation-Benefit to minor, whether material-Whether transaction 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 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 : l-I eld, 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.

lmambandi v. Mutsaddi [1918] 45 I.A. 73 relied on. Mahomed Keramatullah Miah v. Keramatulla

(A.LR. 1919 Cal. 218) and Ameer Hasan v. Md. Ejay Hussain (A.I.R. 1929 Oudh 134) commented upon.

Shrimati Hil'a Devi and Others

District Board, Shahjahanpur •.

Bhagwati /.

Oct. 22.

iMohd. Amin and Others

v. :Vakil Ahmed and Others.

.Bhagwati /.

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 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 bis daughter, by a predeceased wife Batu! Bibi and defentlants 1 to 4 his

nephws 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 Boa.rd, 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 plaintifl's 1 to 4

' _f

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 fam'ily 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 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 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 ith.eir 1legiit'im.ate hares 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 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 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 tio the estate of Haji and was binding on the plaintiffs.

It is significanlt to observe that the defendants 6 and 7 who were the admitted heirs of Haji did not contest the plaintiff's claim at all.

Mohd. Aminand Others

Vakil Ahme~

and Others.

Bhagwati f ..

Nohd. Amin

and Others

Vakil Ahmed

and Others.

Bhagwati f.

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 ; .

(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 insuffi- . ciently stamped?

Was it beneficial to the rrunor 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 l to 4 were born of that union. There was thus a strong presumption of the marriage of Ha ii with plaintiff 5 huing 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 pames with a view to come to finding in regard to this issue, and found as follows :

"So far as Musammat Rahima's , marriage with Alimullah or anotl1er Abdul Raliman 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 circum- . Stances 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

~ r I

~ ~

I I,

<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 the conclusion that the disputed compromise amounted to a family settlement; that is was beneficial to the interests of the minor plaintiff and that it was made by the parie5; :WiUlingly 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, 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 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 in the transaction by his brother who could not be tl1e. 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 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 lawful 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 that therefore the connection between the

Mohd. Amin

atttl Others

Vak_il Ahmed

anti Others.

Bhagwati T.

Mohd. Amin

antl Others

Vakil Ahmed

and Others.

Bhagtuati J.

plaintiff 5 and Haji was "in it:S i>rigin 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 ti> 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 st:a; te of evidence one cannot but hold that this story of the marnage with Alimullah was purely an after-thought on the part of the defendants I 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 I 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 Musarnmat Rahima Bibi was the lawfully wedded wife and that the plaintiffs 1 to 4 are the legitimate children of Haji. The defendants I 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 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 influence, wam of independent advice etc~ as the question in our opinion is capable of being disposed of on a hort 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

.. ,_

l' \

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 mherited 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 tendenci/es : one set of decisions purports to give such dealings a qualified force; the other declares them wholly VQid 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 ahenate 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 "de-facto 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 I.A. 73. 18-10 S. c. India/71

Mohd. Amin and Others v.

Vakil Ahmed

and Others.

Bhagwati /.

Mohd. Amin

aqt/ Others

v. l(.a{il Ah.med

and Others.

Bhagw_ati ],

Shri S. P. Sinha relied upon a decision of the Calcutta High Court reported in Mahomed Keramutullah Miah v. Keramutulta(') wh, ere 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 shCJ'(>'n that the agreement was for the benefit of the niinor; that if improper advantae had been taken of the minor's position, a family arrangement.._ could be set as1de 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

cae 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.

This dedsion was reached .'on the 19th July, 1918, I.e., almost 5 moi=i.ths 1 after the decision of their Lordships of the Privy Col!flcil, but it does .not appear that the ruling ws brought to the notice of the learned Judges qf the. Calcutta High Court.

The test of the benefit, resulting from the transacti/on to the minor whiFh was n_egatived, by their Lordships of the Privy , Q>, Wlcil }Vas applied, i; y th~ learned Judges of the

Ga1cutt~ f{igh Ci>1.!_rf in prder to determine whther the f.amily_, aqangeµient }Vhic~ was the subject-matter of the suit before them wa~ binding on the mii).or.

Shri S. P. Sinha next relied upon a decision of the Chief Court of Oudh, Ameer Hasan

v. Md. Ejaz HufCiin(2). ' Iri tht ' ease an agreement to reer to arbittaiion was l!ntered into .by the 'mother for her hlinor' children arid ah' awatd was made by

tlie '.arbitrators.

The schc!'me of dt'.ribution of :pr~ pfrties. promulgated. in the award was followed without agy qbjeiioq whateyer fo, t a long period extending over 14' yeas :md. proc, eedin¥s . were take~. at the instance f the minors for recovery of p9sessmn by actual partli' tion of their shares in the properties. The Court held ~

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

(2) A.I.R., 1929 Oudh p4. •

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 distribution promulgated in the ward was In no way. perverse or unfair on i, nf!uenced 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 w0iiJd as well be recognised as a family settlement and the court would be 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 transactioo should be upheld, because it was a family settlement.

Their Lordships cannot assent to the proposition that a party can, by describing a .con, tract as a family settlement, claim for it an exemption from the law governing \he 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 propei; ly represented in tl; i.e 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 vo'd only qua the minor Plaintiff 3 but would be void .al.together 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 weolock between plainfiff . 5 and Haji 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 l to 4 were the legitimate children of Haji.

Both the COurts found that the factun1 of the marriage was not proved and the plaintiffs .Ii.ad therefore of necc:Ssity to fall back upon the presnmption of marriage arising in Mahoniedan law. If that presumption of mqrri; ig\: arose, there would be no difficulty -in

J9j2

Mohd. -Amin

and Othcts

Vakjl Ahmed

and 'Others.

Bhagwati /.

Mohd. Amin and Others v.

Vakil Ahmed

a; id Others.

Bhagwatl /.

establishing the status of the Plaintiffs l 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 oontinual 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 fan Khanum (' ). 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 no 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 inheriliing 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 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 fact of casual concubinage is not sufficient to establish legitimacy; and if there be proved to have existed any in 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 born to a father, of a mother where there had been not a mere casual (I) (1844) 3 Moore's Indian Appeals 295 at P. 317.

' ;• A

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 m 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, e.g., 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 Vf 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 obsQacle 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 yearn openly and to the knowledge of all their relations and friends. The plaintiffs I 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 1 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 I 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 19-10 s. a. India/71

Mohd. Ami1'

and Others v.

Vakil Ahmed and Others.

Bhagwati /.

Mohd. Amin and Others

Vakil Ahmed and Others.

Bhagwati /.

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 rhe defendants l 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 passession 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 l 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.

Appeal dismissed.

Agent for the appellants: V.P.K. Nambiyar.

Agent for the respondents: B. P. Maheshwari.

END OF VoL. III.