A de facto guardian has no authority to deal with a Mahomedan minor's property, and any transaction by such guardian is void in the strict sense, incapable of ratification.

P.T. Raman Nayar, C.J.

1. The question in this appeal is whether the sale of the immovable property of a Mahomedan minor by a so-called de facto guardian - in this case the elder brother of the minor - can be validated by the minor ratifying the sale after attaining majority. (It does not appear that a plea of ratification was, in terms, taken by the contesting defendants in this case; nor was any express issue joined on that question. But, both the trial court and the lower appellate court have, it would appear, managed to find such a plea implied in the plea of estoppel, acquiescence and abandonment taken by the defendants and have dealt with the question of ratification in considering the issues joined on these pleas). The first court taking the view that such a sale was void ab initio and therefore incapable of ratification gave the plaintiff herein a preliminary decree for partition and separate possession of his share of the property, a leasehold, that had been alienated by his brother, claiming to act as his guardian while he was a minor. (The suit was brought within three years of the plaintiff attaining majority so that no question of limitation could possibly arise). But the lower appellate court following the decisions of a single judge of this Court in Abdul Sukkoor v. Muhammed Dirar & Others 1966 KLT. 605 and Lakshmi Amma v. Saidakutty alias Kunhi Bava 1967 KLT. 203 held that the sale was only voidable and therefore capable of ratification. It also thought that, obsessed by their mistaken view of the law, the parties as well as the trial court had not paid due heed to the question of ratification, and it set aside the decree of the trial court and remanded the suit for fresh trial not merely on the question whether or not there had been a ratification by the plaintiff after attaining majority, but also on the other questions that arose in the suit, questions such as whether the defendants were entitled to any equities or reservations, whether they were entitled to compensation for improvements, and whether they were holding, not under the impugned alienation, but under a fresh lease granted to them by the landlord (questions, it will be noticed, entirely unconnected with the question of ratification) on the obviously unsustainable ground that the findings recorded by the trial court on these questions were vitiated by the wrong assumption that the alienation was void ab initio. Even if the view it took regarding the character of of the alienation were right, the proper course would have been to call for a finding on the question of ratification; and we might mention that both sides are agreed that in no view of the matter was there the least justification for a remand on the remaining issues.

2. We do not think that the view taken in Abdul Sukkoor v. Muhammed Dirar & Others 1966 KLT. 605 and Lakshmi Amma v. Saidakutty alias Kunhi Bava 1967 KLT. 203 is right. In the leading case regarding the alienation of the immovable property of a Mahomedan minor by his de facto guardian, namely, Imambandi v Haji Mutsaddi, AIR. 1948 P. C.11 their Lordships of the Privy Council held that a so-called de facto guardian in that case the mother had no power whatsoever to deal with the minor's property, no more power than a rank outsider had, and, although their Lordships themselves do not appear to have characterised it in such terms, the decision leaves no room for doubt that they affirmed the set of decisions which declared such a dealing wholly void and ineffective for want "of authority or power on the part of the mother to alienate or encumber the minor's property." Following this decision of the Privy Council, the courts in India including the Supreme Court in Mohd. Amin v. Vakil Ahmed AIR. 1952 SC. 358 have described such dealings as void. If a transaction is void in the strict sense of the term it has to be regarded as non est, and, it goes without saying that there can be no question of ratifying something that is none