A sale deed executed by a defacto guardian of a minor Muslim is void abinitio, and good faith is an essential requirement to invoke the benefit of S.51 of the Transfer of Property Act.

Defendants 1,3 and 4 are the appellants. Plaintiff (first respondent herein) filed the suit against defendants 1 to 4 for partition and recovery of possession of 119/144 shares out of the plaint schedule property ignoring the sale deed dated 9-5-1963 in first defendant's favour and also the assignment deeds executed by him in favour of defendants 3 and 4.

2. The plaint schedule property belonged to plaintiff's father. After his father's death, the property devolved on him, his mother (second defendant) and sister Suhuruman Beevi. Sister died during her minority. Plaintiff and mother alone became entitled to the property. Plaintiff's mother executed Ext. A-2 sale deed (original of the same is marked as Ext. B8 ) in favour of the first defendant acting as the guardian of minor plaintiff.

3. Contention of the plaintiff is that Ext. B-8 sale deed is void abinitio as his mother was not legally competent to execute it as his guardian. The trial court held that Ext. B-8 is an invalid document and that whatever improvements have been effected in the property would not confer any right on the assignees. Preliminary decree for partition granted in favour of the plaintiff allotting 119/144 shares has been confirmed by the first appellate Court.

4. The settled legal position is that a sale deed executed by a defacto guardian of a minor Muslim is void abinitio. In Imambandi v. HajiMutsaddi(AIR 1918 P.C.11) the Privy Council held that under the Mohamedan Law a person who has charge of the person or property of a minor without being his legal guardian has no power to convey to another any right or interest in the immovable property of the minor. As mother of the plaintiff not being his legal guardian could not have effected any sale with respect to his property, first defendant's position as assignee cannot but be that of a rank trespasser in the eye of law. In the case of a minor Muslim the legal guardian is his father or father's grand father however high and under no circumstances mother attains the status of legal guardian. As defacto guardian gets no recognition under Mohamedan Law and considers him without any legal authority to deal with minor's property, any such dealing by him would be wholly void.

5. Merely because recitals in Ext. A-2 disclose that there was an antecedent debt and that impelled execution of Ext. B-8 assignment deed it cannot bind the property of the minor plaintiff. Recitals in Ext. B-8 reveal that the first defendant was fully aware of the fact that the property belonged to the plaintiff as well and so references to antecedent debts, pendency of execution petition and such other matters necessitating requirement of funds for the family to tide over the crisis would not be sufficient to hold that Ext. B-8 assignment deed can be legally justified. As the first defendant lacked complete authority and legal competence to assign the properly of the minor, it has to be held that Ext. B-8 is invalid.

6. Defendants 1 and 3 are no more and the 4th defendant is in possession of the property. His contention is that in view of the fact that first defendant was a bonafide purchaser of the property and from him he and third defendant have purchased it and as they have effected substantial improvements therein they are entitled to value of improvements. Relying on Durgozi Row v. Fakeer Sahib (ILR 30 Mad. 197) counsel for the appellant submitted that the rule of equity embodied in S.51 of the Transfer of Property Act is not opposed to any principles of Mohamedan Law and so long as there is no provision under it that a bonafide purchaser is not entitled to value of improvements S.51 can be certainly invoked.

7. Section 51 provides that when the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted there from by any person having a better title, the transferee has a right to require the person causing the eviction