Under Mohammedan Law, a person who has charge of the person or property of a minor without being his legal guardian has no power to convey any right or interest in immovable property which the transferee can enforce against the infant.

1. These are appeals by the 1st defendant from the preliminary and final decrees of the temporary Muniff of Nedumangad in O.S. No. 146 of 1118. A.S. No. 173 of 1124 is the appeal from the preliminary decree and A.S. No. 106 of 1124 is the appeal from the final decree.

2. One Meeran Pillai Mohammed Ibrahim Pillai died on 20.9.1114 leaving a widow the 2nd defendant, a major daughter the 3rd defendant and four minor children who are the plaintiff's in this case. Meeran Pillai Mohammed Ibrahim Pillai had executed a hypothecation bond in favour of the Sirkar towards an agricultural loan of Rs. 600. After the death of Meeran Pillai, the Sirkar took out proceedings under the Revenue Recovery Act for the recovery of the balance amount due under the hypothecation. Reciting payment of the amount due to the Sirkar, a sale deed in respect of the plaint schedule properties, was executed on 7.10.1115 by the mother 2nd defendant in her own right and as guardian of the plaintiffs who were all at the time minors, in conjunction with her major daughter the 3rd defendant, in favour of 1st defendant for Rs. 425. The plaintiffs in this suit seek to set aside the sale deed to the extent of their 35/48th share over the properties and to recover the same with past and future mesne profits from the 1st defendant.

3. First defendant contended that the sale is valid and not liable to be set aside. The trial court gave a preliminary decree to the plaintiffs setting aside the sale deed Ext. C to the extent of the plaintiffs share and directing recovery of possession of their share on a division of the properties by metes and bounds on payment to the 1st defendant, the amount he paid to the Sirkar towards discharge of the hypothecation bond in their favour. In pursuance of this preliminary decree a final decree was also passed.

4. The main questions that arise for decision in these appeals are whether the mother's dealing with her minor childrens' properties under Ext. C, is binding on the infants and whether the alienation is liable to be set aside as prayed for by them. Under the Mohammedan Law, the first and primary natural guardian of the minor is the father. When he is dead, the guardianship devolves upon his executor. If the father has died without appointing an executor, then the father's father if he is alive becomes the guardian. If he too is dead, then the guardianship devolves upon the executor of the father's father. Therefore, the two near relations that are the natural guardians of the minor children of a Mohammedan are the father and the father's father. It is also clear that under Mohammedan Law the mother is only entitled to the custody of the persons of her minor children upto a certain age according to the sex of the children. Therefore under the strict rules of the Mohammedan Law, the mother is not clothed with any authority to sell the immovable properties of her minor children. There was some conflict in the decision of the High Courts in India with regard to the question of the mother's power to deal with her minor children's immovable properties. But the question has been set at rest by the decision of the Privy Council in Imambandi v. Mutsaddi reported in I.L.R. 45 Calcutta 878. After reviewing the law on the subject, Their Lordships have come to the conclusion that "under the Mohammedan 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; nor can such transferee if let into possession of the property under such unauthorised transfer, resist an action in ejectment on behalf of the infant as a trespasser."

5. The High Court of Travancore till recently took the same view. The question came directly for consideration in the case reported in 18 T.L.J. 1313. At page 1317 of the report T