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1920 Supreme(Cal) 326
CALCUTTA HIGH COURT
Teunon, J., Beachcroft, J.
Mohsenuddin Ahammad - Appellant
Versus
Khabiruddin Ahmed & Ors. - Respondent
Decided On : 04-02-1920
Headnote:
Minors - Arbitration - Guardians and Wards Act - Code of Civil Procedure - [Rule 17, Second Schedule, Guardians and Wards Act] - The court held that a mother, who was not appointed as a guardian of the minors' properties by the District Judge under the Guardians and Wards Act, was not competent to enter into an agreement to refer to arbitration on behalf of the minors. The court relied on the Privy Council decision in Imambandi v. Mutsaddi, which held that a mother has no power to deal with her minor child's property without being appointed as a guardian by the court. The court also rejected the argument that the reference to arbitration was for the manifest advantage of the infants, as it did not fall within the 3rd clause of the Exceptions provided for the protection of a minor child who has no de jure guardian. The court further held that the appellant, who had entered into the agreement, was not bound by it as he had acted under a misconception as to the legal authority of the mother to bind her infant children. The court also held that the subsequent appointment of a guardian for the minors did not validate the agreement, as the appointment was conditional on furnishing security, which was not provided by one of the appointed guardians.
Fact of the Case:
Descendants of a person named Jhalu Mandal were in dispute regarding their joint properties and their distribution. They entered into an agreement to refer the dispute to arbitration on October 21, 1916. Five of the parties to the agreement applied under Rule 17 of the Second Schedule to the Code of Civil Procedure on April 4, 1917, to refer the matter to arbitration. One of the parties, Mohsinuddin Ahmad, appealed against the Subordinate Judge's order to refer the matter to arbitration.
Finding of the Court:
The court found that the agreement to refer to arbitration was invalid because the mother of two minor parties to the agreement, Sakhina Bibi, was not appointed as their guardian by the District Judge under the Guardians and Wards Act. The court relied on the Privy Council decision in Imambandi v. Mutsaddi, which held that a mother has no power to deal with her minor child's property without being appointed as a guardian by the court. The court also found that the subsequent appointment of a guardian for the minors did not validate the agreement, as the appointment was conditional on furnishing security, which was not provided by one of the appointed guardians.
Issues: Whether the mother of the minor parties to the agreement was competent to enter into an agreement to refer to arbitration on their behalf without being appointed as their guardian by the District Judge under the Guardians and Wards Act. Whether the reference to arbitration was for the manifest advantage of the infants and, therefore, came within the 3rd clause of the Exceptions provided for the protection of a minor child who has no de jure guardian. Whether the appellant, who had entered into the agreement, was bound by it as he had acted under a misconception as to the legal authority of the mother to bind her infant children. Whether the subsequent appointment of a guardian for the minors validated the agreement.
Ratio Decidendi: A mother, who is not appointed as a guardian of the minors' properties by the District Judge under the Guardians and Wards Act, is not competent to enter into an agreement to refer to arbitration on behalf of the minors. The reference to arbitration must be for the manifest advantage of the infants to come within the 3rd clause of the Exceptions provided for the protection of a minor child who has no de jure guardian. A party who enters into an agreement under a misconception as to the legal authority of the other party is not bound by the agreement. The subsequent appointment of a guardian for the minors does not validate the agreement if the appointment was conditional on furnishing security, which was not provided by one of the appointed guardians.
Final Decision: The court decreed the appeal and set aside the order of the District Judge with costs. The costs were to be paid by the contesting major respondents.
JUDGMENT
Teunon, J,
1. This appeal arises out of an application made under Rule 17 of the Second Schedule to the Code of Civil Procedure.
2. It appears that the descendants of a person of the name of Jhalu Mandal are in dispute as to the extent of their joint properties and as to the manner in which they should be distributed amongst them On the 21st October 1916 these persons entered or purported to enter into an agreement to refer the dispute to the decision of certain arbitrators. The application under Rule 17 was made by or on behalf of five of the persons whose signatures appear on the agreement to refer. It was made on the 4th April 1917. After hearing the parties the Subordinate Judge directed that the agreement should be filed and that the matters in dispute should be referred to the arbitrators named in the deed of agreement. Against this order Mohsinuddin Ahmad, one of the parties to the agreement, has appealed.
3. He contends before us that in entering into this agreement he acted under coercion, and he further contends that as a matter of fact the agreement referred to was abandoned by the parties thereto and never became operative. These are matters into which we do not think it necessary to enter, because we are of opinions that oil a further contention this appeal must succeed. of the persons who purported to enter into the agreement two are minors, Din Mohamad and Kasirannessa, in whose behalf when executing this agreement their mother Sakhina Bibi acted. It is contended by the appellant that inasmuch as Sakhina Bibi, the mother, was not appointed guardian of the properties of the minors by the District Judge under the Guardians and Wards Act, she is not competent to deal with the properties of the minors and not competent to enter on their behalf into the agreement to refer td arbitration, the said agreement being one which will necessarily, if acted upon, involve dealings with the properties of the minors.
4. To this contention, in view of the decision of their Lordships of the Privy Council reported as Imambandi v. Mutsaddi 47 Ind. Cas. 513 : 45 C. 878 : 35 M.L.J. 422 : 16 A.L.J. 800 : 24 M.L.T. 330 : 28 C.L.J. 409 : 23 C.W.N. 50 : 5 P.L.W. 276 : 20 Bom. L.R. 1022 : (1919) M.W.N. 91 : 9 L.W. 518 : 45 I.A. 73 (P.C.), we think there can be no sufficient answer. It is true that in that case their Lordships of the Privy Council were dealing more particularly with cases of sale or mortgage, but they had in view also the general question how far and under what circum-stances according to Muhammadan Law dealings by a mother or other unauthorized guardian of a minor are operative. They observe, inter alia, "The mother has no larger powers to deal with her minor child's property than any outsider or non-relative who happens to have charge for the time being of the infant. The term 'de facto guardian' that has been applied to these persons is misleading; it connotes the idea that people in charge of a child are by virtue of that fact invested with certain powers over the infant's property. This idea is quite erroneous," Later on they further say, "Without such derivative authority, (that is, authority derived either from powers given by a Will or by appointment by the Judge as guardian) if the mother assumes charge of their property of whatever description and purports to deal with it, she does so at her own risk, and her acts are like those of any other person who arrogates an authority which he does not legally possess, she may incur responsibilities, but can impose no obligations on the infant." In view of this decision and these observations we cannot but hold that in the present case the mother is not competent to bind the infants by this so-called agreement to refer to arbitration.
5. In answer to this it is suggested that the reference to arbitration is for the manifest advantage of the infants and, therefore, comes within the 3rd clause of the Exceptions provided for the protection of a minor child who has no de jur
