A Mahomedan mother, as a de facto guardian, has no power to refer a dispute to arbitration involving the immovable properties of her minor children, and such an agreement is void.

Jamuar, J.

1. This appeal has been brought from an order dated 16-3-1950, passed by the Special Subordinate Judge of Ranchi on an application filed before him under Sec.33, Arbitration Act, 1940 , challenging the validity of an arbitration agreement entered into by the parties.

2. One Maula Bux had a son named Abdul Aziz and a daughter named Batulan, Abdul Aziz had two wives, Zainab and Maniran Zainab has three sons Ahmad Ali, Abdul Karim and Idris, and two daughters, Sakina and Safoora. Maniran has two minor sons, Abdul Majid and Muhammad Zamil, three minor daughters, Abda Khaioon, Zahida Khatoon and Halima, and three major daughters, Khodeja, Moshera and Zohra.

3. After the death of Maula Bux and his son, Abdul Aziz, there appears to have arisen a dispute in the family regarding the partition of the properties. On 20-4-1949, a deed of agreement was entered into by the family members, and Bibi Maniran, one of the wives of Abdul Aziz, had signed this deed for self and as guardian of her minor children. The deed of agreement recited that, since "there is a dispute between the parties regarding the possession, enjoyment, partition, accounts, assets, liabilities and interest in movable and immovable properties left by the late Sheikh Maula Bux and his son late Maulavi Abdul Aziz", the parties desired to refer the dispute to the arbitration of certain persons named therein, and they appointed those persons as arbitrators to adjudicate upon their dipute.

4. Thereafter, on 26-10-1949, an application was filed before the Subordinate Judge of Ranchi under Sec.33, Arbitration Act, by Batulan, Zainab and the sons and daughters of Zainab and the opposite party to this application were Maniran and " her sons and daughters. In this application, it was alleged that, as Maniran had signed the deed of agreement as guardian of her minor sons and daughters, when, in fact, she was not their guardian, and, as, under the Mahomedan Law, she as the mother, could not be the guardian of the properties of her minor children, the agreement was wholly illegal and null and void, and would not legally empower the arbitrators to decide the dispute in question. It was further alleged that, in order to avoid further harassment and expenses, it was necessary to have the validity of this agreement determined under Section 33, Arbitration Act, and it was prayed that the said agreement, dated 20-4-1949, may be declared to be illegal and null and void. The opposite party to this application contested the matter, and it was argued that, if it be held that the mother could not be the legal guardian of her minor children, she should be treated to have signed the deed of agreement as a de facto guardian and hence the agreement would be effective, at least, so far as the movable properties in dispute were concerned. It was also argued that Maniran having been, later on, appointed by the Court as guardian for the minors, the defect in the agreement should be held to have been cured.

5. The learned Subordinate Judge found that, although a Mahomedan mother may be the de facto guardian of her minor children after the death of the father, she has no authority, when she is not" the executrix of the childrens father nor appointed as their guardian by him or by the Court, to enter, on behalf of the minors, into an agreement for reference of any dispute to arbitration which should affect their shares in the immovable properties of their father, and that the subsequent appointment of the mother by the Court as guardian of the minors could not validate such an agreement. The learned Subordinate Judge, accordingly, came to the conclusion that the reference to arbitration on behalf of the minors was invalid. He, however, held that, so far as the other parties to the deed of agreement were concerned, they were competent to refer the dispute to arbitration so long as the decision of the dispute amongst them did not affect the interest of the minors.

The learned Subordinate Ju