A transaction by which a minor is sought to be bound but in which that minor is not represented by a de jure guardian is void.

1. The three plaintiffs who are the appellants are the children of Athrumman, who died in the year 1099, though his second wife who is the 7th defendant. They sued for partition and delivery of their shares in the properties described in three schedules to the plaint, marked A, B and C. The 1st defendant is Athrumman's sister and defendants 2 to 6 are the children of his brother Meethian who died in the year 1094. The suit was filed in the year 1117 when plaintiffs 1 and 2 had attained majority but the 3rd plaintiff had not who also attained majority pending suit. During the minority of the plaintiffs, in the year 1100, there was a partition (Ext. 1) of all the properties included in the schedules to the plaint. At that partition, the plaintiffs were represented by their mother as guardian. Plaintiffs impeached that partition, inter alia, on the ground that under the Mohammadan Law by which they are governed, the mother is not recognised as guardian and she was, therefore, incompetent to represent them, with the result that Ext. I cannot be regarded as a transaction to which the plaintiffs were parties. Plaintiffs claim a 5/8 share of items 1 to 4 in the A schedule to the plaint as exclusively belonging to their father. This exclusive claim had not been recognised in Ext. I.

2. The suit was contested by the first defendant as also by certain other defendants. Plaintiffs settled their claims with all except the 1st defendant and a compromise petition was presented in court on 2.12.1120 as a consequence of which defendants 2 onwards as also the properties claimed by them were taken out of the ambit of the litigation. What remained in the plaint was the 1st defendant who was in possession of items 1 to 4 of the A schedule and the plaintiffs' claim, on the basis of the alleged exclusive title of their deceased father in respect thereof, to a 5/8 share.

3. The Court below considered that on account of the diminution of the scope of the litigation caused by the compromise, the suit became one for partition and therefore unsustainable. The court below found too that the partition deed of 1100 which is impeached by the plaintiffs was to the obvious advantage of the plaintffs and therefore binding upon them notwithstanding the fact that they were not represented by their legal guardian. The court below was of the view that the mother the 7th defendant though not a de jure guardian was a de facto guardian and was entitled as such to represent the minors in the transaction which was, in the court's view, patently to their advantage. In this view, the suit was dismissed by the court below.

4. Learned counsel for the appellant urges before us that Ext. I, the partition deed of 1110, cannot be considered to be a transaction to which the plaintiffs were parties because they were not represented by their de jure guardian. A Full Bench of this Court in 1951 KLT 223 held that a transaction by which a minor is sought to be bound but in which that minor is not represented by a de jure guardian, is void. That case no doubt related the member of the Christian community but the principles laid down therein is, as the case itself shows, equally if not more, applicable to the case of Muslim minors. In AIR 1952 Supreme Court 358 it was held that:

"A deed of family settlement to which a Muhammadan minor is a party represented by his brother as de facto guardian is void and not binding on the minor, irrespective of the considerations that it benefited him or the arrangement was followed for a long period."

and that:

"A deed of settlement which is thus void qua the minor is void altogether qua all the parties including those who were sui juris."

Ext. I, is therefore void and the plaintiffs were entitled to ignore it and claim their reliefs as though such an event never happened. The decision of the court below cannot, therefore, be supported on the ground that to Ext. I the mother of the plaintiffs was a party, nor on the ground, assuming it is corre