A conveyance of immoveable property by a de facto guardian of a Muslim minor is void, but it does not affect the validity of the conveyance as regards the shares of the other executants who were sui juris.

JUDGMENT :- The suit out of which this second appeal arises was instituted by the appellants to set aside a sale dated 2-10-1956 of a piece of immoveable property belonging to them, executed by them in favour of the respondents for a consideration of Rs. 500. The property admittedly belonged to the first plaintiff's husband. Plaintiffs 2 to 4 are his sons of whom plaintiffs 3 and 4 were then minors. They belonged to the Muslim community. Plaintiffs 3 and 4 were in the conveyance, represented by their mother as their guardian. The plaintiffs asked for cancellation of the sale on the ground that the mother as a de facto guardian of plaintiffs 3 and 4 had no right to make a conveyance of immoveable property on their behalf and that such a conveyance was void. The trial court accepted this contention and set aside the sale but directed the plaintiffs to pay a sum of Rs. 500 to the defendants as a condition to their getting back possession of the property. The defendants appealed against that judgment and the lower appellate court took the view that the conveyance was void only in so far as it purported to convey the shares of the two minors as well and that it was good as a conveyance of the shares of the remaining executants. On that view, the lower appellate court granted a preliminary decree for partition and separate possession of 21/40 shares representing the shares of plaintiffs 1 and 2. The lower appellate court also considered that the sum of Rs. 500 paid as price must be deemed to be the value of the shares of plaintiffs 1 and 2. The plaintiffs, in so far as the lower appellate court modified the decree of the trial court were aggrieved and have come upto this court in second appeal.

2. It is well settled that a conveyance of immoveable property by a de facto guardian of a muslim minor is void and is not binding on the minor. Under the Mahomedan law, a mother of a minor is not his legal guardian and she will have no power to act on behalf of the minor and make a valid conveyance of his property. This has been held by the Privy Council as early as in Imambandi v. Mutsaddi, 45 Ind App 73 : ILR 45 Cal 878 : (AIR 1918 PC 11). But the question is where a conveyance is effected by three or four persons of whom one or more is a minor represented by his de facto guardian, and the conveyance is void in so far as it affected the minor or minors, it could be held that the sale is void as against the other executants as well who were sui juris and competent to make a conveyance of their shares in the immoveable property. Mr. Sharfuddin for the appellants argues that if the conveyance' is void qua the minor represented by the de facto guardian, it is void as a whole. He says that the contract is one and entire and if a part of it has no effect, the other part cannot stand by itself and be operative. In support of this proposition, learned counsel relies on Pratap Singh v. Sant Kaur. ILR (1938) 19 Lah 313 : (AIR 1938 PC 181) and Md. Amin v. Vakil Ahmad, AIR 1952 SC 358. In the first of these cases, the Privy Council held that where an agreement was entered into with two sisters one of whom was represented by a guardian who was neither appointed by the court nor could claim to be her guardian under her personal law, the agreement was void not only against the minor but was also unenforceable against her elder sister, who was a major. The Privy Council observed :

"The rule of law is firmly established that a minor is not competent to make a contract, and as Gujar Singh had no authority to enter into a contract on her behalf, the deed of settlement must be held to be a void transaction as against her".

3. It was argued before the Privy Council that the transaction should be upheld as a family settlement, but the Board rejected the contention by pointing it out that by describing the contract as a family settlement the parties could not claim an exemption from the law governing a person to make a valid contract. In the second case al