A de facto guardian under Mahomedan Law has no power to transfer immovable property of a minor. Such a transfer is void.

V R Sen, J—The immoveable property described in para. 1 of the plaint originally belonged to Sheikh Kareem who died in or about 1933. He left behind his wife Mt. Faizanbi & four minor children, 3 sons & 1 daughter. They are plffs. 1 to 4. The share of Faizanbi in the property was only 1/8th while the remaining 7/8th share devolved on the plffs. in accordance with the Mahomedan law of succession.

2. Sh. Kareem was indebted to Haji Aga Khan (D. W. 2) & after his death the latter obtained a decree in civil suit No. 122 of 1931 against Faizanbi. He was also indebted to Pathan Khan who obtained a decree in civil suit no. 417 of 1932 against Faizanbi & the plffs. There was another decree of Bismilla against Faizanbi & the plffs. for Rs. 822 in civil suit No. 69 of 1931. The property in suit was attached in execution of the decree in civil suit No. 122 of 1931 & the decree was later sent to the Collector- Haji Aga Khan undertook to pay off the debts due under the decrees & from Sk. Kareem. Permission to sell the property in suit was obtained from the S. D. O. Buldana. Faizanbi sold the property in suit together with her share to one Sultan Khan Pathan for Rs. 2500 under a duly executed registered sale deed Ex. P-2. Later, Sultan Khan sold the same property by a sale deed (Ex. D-1) dated 4-3-1936 to the defts. for Rs. 2000. The plffs. instituted a suit for possession of their share in the property conveyed under Ex. D-2. Their case is that their mother was not competent to sell the property.

3. The claim was resisted on various grounds. The main plea was that the sale was made by Faizanbi as guardian of the plffs, to pay off the decrees arising out of the debts of her husband & to save other property in the interests of her children (the plffs.) with the permission of the S.D.O. Buldana, hereafter described as Collector.

4. Both the Courts found that Haji Aga Khan had purchased the property for Rs. 2500 with the previous permission of the Collector & that the sale deed was executed to pay off the debts of Sk. Kareem. They further found that some property of the minors was saved as a result of the impugned sale. The trial Court dismissed (sic) the suit on the following ground :

''The transfer of a minor's property by de facto guardian under Mahomedan Law is void. The fact that the minors have derived benefit from the transfer does not add validity to the transfer.''

The lower appellate Court, however, relying on the decision in Gulam Hussain v. Mir Jakir Ali,1940 ILR(Nag) 553 referred to by it as (1938) N. L. L. 409, came to the conclusion that the sale was binding on the plffs. & dismissed the suit. The plffs. have filed this second appeal.

5. The mother under the Mahomedan Law is not the legal guardian of the property of her minor children. She is merely a de facto guardian. In Imambandi v. Mutsaddi, their Lordships of the Privy Council considered the powers of a de facto guardian in regard to a transfer of an immoveable property of a minor ward & made the following statement :

''Under the Mahomedan law a person who has charge of the person or property of a minor without being his legal guardian, & 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 unauthorized transfer, resist an action in ejectment on behalf of the infant as a trespasser. It follows that, being himself without title, he cannot seek to recover property in the possession of another equally without title.''

In the absence of a de jure guardian, the person, in charge of the person & property of the minor may pledge the minor's moveables for the minor's imperative necessities. Mother not being lawful guardian has no power to deal with a minor's immoveable property any more than an outsider. This judgment was delivered by Mr. Ameer Ali who in his valuable