Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: MANZOOR HUSSAIN and others VS Respondent: BHOLE KHAN and others
Court Name: Lahore High Court Judge(s): Gul Zarin Kiani Title: MANZOOR HUSSAIN and others vs BHOLE KHAN and others Case No.: Regular Second Appeal No,26 of 1973 Date of Judgment:1990-12-18 Reported As: 1991 CLC 640 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' This second appeal by the defendants 1 and 2 in the civil suit before the trial Court raises an interesting legal question about competence of a legal guardian to deal with the immovable property of his ward and a less important question about the effect of non-payment of court-fee on the alternative relief for specific performance of an agreement to sell, and, the power of the Court to direct payment of deficit court-fee. ' First, the facts which gave rise to this litigation. 39 kanals, 2 marlas of land at Mauza Bhian-Wala, Khurd in Tchsil Feroze-Wala, was owned by Noor Muhammad, Wall Muhamad sons, Mst. Khurshid Begum daughter, and Mst. Inayat Begum widow of Ghulam Muhammad. By deed of sale executed on 28-2-1967, and, registered on 14-3-1967, above land was sold by them to Manzoor Hussain, and, Akhtar Hussain minor sons of Ch. Muhammad Hussain for a consideration of Rs,7500. Rs,500 were paid earnest. An equal amount was retained for payment to the mortgagees, and the rest of the amount was paid at the time of registration of the sale-deed. Sale-deed is Ext.D1. As the vendees were minors, the sale was completed in their favour by their father who paid the consideration for it. ' Bhole Khan, and, his brother Rasool Bakhsh as collaterals intended to claim pre-emption in respect of the above sale and wanted to assert preference through Court. Upon gaining awareness of intent to enforce pre-emptive rights by them, father of the vendees agreed to re-convey the land to them upon payment of Rs,8,250 and upon receiving Rs,2000 as advance payment, agreed to complete the sale within one month of the payment of the rest of the amount. An agreement to re-convey the land was reduced to writing on 8-3-1968. It is Ext.P2. It was signed by the father of the vendees, attested by two witnesses, and, thumb-marked by Bhole Khan. As agreement to re-
---
## Page 2
convey the land did not materialise, Bhole Khan and Rasool Bakhsh as plaintiffs sued for possession of the land by pre-emption, and, in the alternative for specific performance of agreement dated 8-3-1968, upon payment of the balance price. Suit was instituted on 11-5-1968. To the suit, apart from vendees, erstwhile owners of the land were also impleaded as defendants. Vendees were defendants Nos.1 and 2, whereas the original owners were defendants Nos.3 to 6 in the suit. As defendants Nos.1 and 2 suffered from minority, plaintiffs proposed their father to act as their guardian ad litem in the suit filed by them. ' Suit was resisted by defendants Nos.1 and 2 only. Written statement was filed on their behalf by Muhammad Akram as their sarprast. It was averred that was petition for appointment of guardian ad litem, and list of relations of the minor-defendants were not filed, the plaint needed amendment; that the plaint was deficiently assessed for purposes of court-fee and jurisdiction, and, less amount of court-fee was paid. On merits, it was averred that the father had no right to bind the minors for the sale of their land. Prior to settlement of issues, on the application of the plaintiffs, Muhammad Akram, a step brother of the minors, was appointed as their guardian ad litem on 5-11-1968. ' Trial proceeded on the issues settled by the trial Court on 11-2-1969. (1) Whether the suit of the plaintiffs to enforce their right of pre-emptio against the vendee- defendants is within time? (2) What is the effect of agreement executed by Muhammad Hussain I favour of the plaintiffs for the specific performance of the contract? (3) Whether the plaintiffs have superior right of pre-emption? (4) Whether the ostensible price of the suit land viz Rs,7,500 was fixed I good faith or actually paid? (5) If issue No,4 is not proved, what is the market value of the suit land? (6) Relief. ' At the instance of the plaintiffs, on 24-6-1969, an additional issu numbered 6-A was added. It reads:- "In the alternate, whether the plaintiffs are entitled to a decree possession of the land on the ground of the specific performance of the agreement? If so, its effect?" ' Upon analysis of the evidence adduced, the trial Court dismissed the us for pre-emption, and, decreed specific performance of agreement to sell upon payment of Rs,8,250 vide its judgment passed on 28-4-1972 by directing execution of the sale-deed and its registration in accordance with agreement mark Ext.P2. The trial Court found that suit for pre-emption was barred by limitation but gave relief of specific performance. Issues Nos.3, 4 and 5 were left undecided by the trial Court. Against decree of the trial Court, plaintiffs and defendants and 2, filed separate appeals in the Court of learned District Judge, Shcikhupur who by a common judgment dismissed them on 15-12- 1972. Against his judgment defendants 1 and 2 came up in appeal through their guardian ad litem. Appeal was admitted to hearing on 22-1-1973. As for plaintiffs in the suit, they seem to be satisfied with the judgment, and, have not challenged it. ' On behalf of the appellants, their learned counsel Sh. Nizam-ud-Di raised two contentions. His first contention was that in absence of proper tour fee paid upon the plaint for the relief of specific performance, the Court soul not have decreed that relief because there was no valid plaint before it. H second contention was that a legal guardian could not have bound his minor son for agreeing to sell their land and as the agreement suffered from want mutuality, it could not be specifically enforced by a Court of equity. In this behal learned counsel referred to the cases in Waghela Rajsanji v. Shekh Masluddin and others I L R 11 Bombay 551, Kali Dutt Jha and others v. Abdul Ali and another I L R 16 Calcutta 627, Abdul Haq v. Muhammad Yehia Khan and others AIR 1924 Pat. 81, Pandit Krishna Chandra Sharma v. Seth Rishabha Kumar AIR 1939 Nag. 265, Suresh Chandra
---
## Page 3
Pradhan v. Ganesh Chandra De and others AIR 1951 Orissa 351, and, Ramchandra v. Manikchand and another AIR 1968 Madhya Pradesh 150. ' Rasool Bakhsh respondent died on 28-1-985. His legal representatives were substituted on record. Bhole Khan died on 15-8-1985. His heirs were also substituted for him on record. They are represented by Mr. Asif Saeed Khan Khosa, Advocate who argued on their behalf that father as natural guardian of the minors could deal with their immovable property, if that act was for their benefit and necessity, and, as both were found to exist in the case, the agreement to sell executed by the father was specifically enforceable. In support of this statement, learned counsel heavily relied upon Sri Kakulam Subrahmanyam and another v. Kurra Subba Rao AIR (35) 1948 Privy Council 95, Abdul Hakim v. Jan Muhammad and others AIR (38) 1951 Allahabad 247, Amir Ahmad and others v. Meer Nizam Ali AIR 1952 Hyderabad 120, Ganga Singh and another v. Santosh Kumar and another AIR 1963 Allahabad 194 and monographs from the books on Mahomedan Law. I shall first advert to the question about the powers of a legal guardian under Mahomedan Law to alienate immovable property of his ward. Distinguished from a de facto guardian, father is legal guardian of the property of his minor children and Mahomedan Law gives him power to alienate immovable property belonging to them in specified conditions. Power to alienate is neither absolute nor without fetters. Mahomedan Law subjects this power to stringent conditions. Books on Muslim Law lay down that a legal guardian can sell the immovable property of his ward; (1) where he can obtain double its value; (2) where the minor has no other property, and, the sale is necessary for his maintenance; (3) where there are debts of the deceased, and no other means of paying them; (4) where there are legacies to be paid, and no other means of paying them; (5) where the expenses exceed the income of the property; (6) where the property is falling into decay; and (7) when the property has been usurped, and the guardian has reason to fear that there is no chance of fair restitution. Apart from the above conditions, a legal guardian has no power to alienate immovable property of his ward. In para 90 of A Hand-Book of Mahomedan Law by Babu Ram Verma, the author observes:- "A legal guardian shall be entitled to exercise the following powers:- (a) He may sell or mortgage immovable property of the minor in the following cases (but not in others):- (i) where he can obtain double the value of the property; (ii) where it is necessary to do so for the maintenance of the minor, the minor having no other property; (iii) where debts are due room the deceased person from whom the minor inherits the property and there are no means of paying them; (iv) where there are legacies to be paid and there are no other means of paying them off; (v) where the expenses exceed the income of the property; (vi) where the property is falling into decay; (vii) where the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution. (b) he may sell or pledge the movable property of the minor where there is imperative necessity, such as for food, clothing or nursing." Macnaghten in Principles & Precedents of Mohammadan Law (at page 64) says:- "14. A guardian is not at liberty to sell the immovable property of his ward, except under seven circumstances, viz. 1st, where he can obtain double its value; 2ndly, where the minor has no other property, and the sale of it is absolutely necessary to his maintenance; 3rdly, where the late incumbent died in debt which cannot be liquidated but by the sale of such property; 4thly, where there are some general provisions in the will which cannot be carried into effect without such sale; 5thly, where the produce of the property is not sufficient to defray the expenses of keeping it; 6thly,
---
## Page 4
where the propeprty may be in danger of being destroyed; 7thly, where it has been usurped, and the guardian has reason to fear that there is no chance of fair restitution. 15. Every contract entered into by a near guardian on behalf and for the benefit of the minor, and every contract entered into by a minor with the advice and consent of his near guardian, as far as regards his personal property, is valid and binding upon him provided there be no circumvention or fraud on the face of it." Asaf A.A. Fyzee, in Outlines of Muhammadan Law (Fourth Edition) dealing with the powers of the legal guardian to sell immovable property of the minor says:- "In Sunnite law, the father is the guardian of the minor's property; failing him, in order of priority, the following are entitled: (i) the father's executor (ii) the father's father; (iii) the paternal-grandfather's executor. These are the legal guardians of the property of the minor. It must be emphasised that the substantive law of Islam does not recognize any other relatives, such as the mother, the uncle or brother, as legal guardians, but they may be appointed by the Court." ' As far the power of the legal guardian to alienate the immovable property of his ward, it is stated that:- "The legal guardian cannot sell the immovable property of the minor except where he can obtain double its value; or where it is necessary for the maintenance of the minor; or where there are debts and legacies to be paid, and there are no other means; or where the property is falling into decay." ' The question with regard to powers of guardian appointed by the Court is somewhat different. There the guardian derives his authority from the order of the Court appointing him. ' Syed Ameer Ali after enumerating restrictions put on the sale of immovable property of the minor by his guardian said:- (c) He may also sell it when there are some general provisions in the wasiyet (will) of the testator, which cannot be carried into effect without the sale of the property. (d) When the property is required to be sold for the purpose of paying off the debts of the testator, which cannot be liquidated in any other way. (e) When the income accruing from the estate is not sufficient to defray the expenditure incurred in its management and the payment of the kharaj (land-revenue). (f) When it is in imminent danger of being destroyed or lost by decay. (g) When the minor has no other property, and the sale of it is absolutely necessary for his maintenance. (h) When it is in the hands of a usurper, and the guardian has reason to fear there is no chance of restitution. ' In other words, even a guardian de jure, like the father or his executor, cannot sell the immovable property of the minor without absolute necessity or unless it is to the manifest or evident advantage of the minor (emphasis supplied by me)." ' Para 362 of Principles of Mahomedan law by D.F. Mulla laid down a similar principle. In paragraphs 270 to 272 of Mahomedan Law by Faiz Badruddin Tyabji, the question was dealt with in similar terms. Paragraph DO reads:- ' A guardian of the property of a ward is bound to deal with it as carefully as a man of ordinary prudence would deal with it, if it were his own and, subject to the provisions of Chapter III of the Guardians and Wards Act, he may do all acts which are reasonable and proper for the realization, protection or benefit of the property." Para 271 states:- "The guardian of the property of a minor may either exercise or refuse to exercise the right of pre- emption on behalf of the ward."
---
## Page 5
There is no dispute that pre-emption is a mode for fresh acquisition of 9 immovable property and could not be equated with its sale for necessity of and benefit to the minor. Paragraph 272 is more near the point. It states:- (1) A guardian cannot validly contract in the name of a ward, so as to impose on him a personal liability. (2) It is not within the competence of manager of a minor's estate, or of a guardian of a minor to bind the minor, or the minor's estate, by a contract for the purchase of immovable property. (3) A guardian's powers with respect to the immovable property of his ward, are restricted so that he cannot alienate it unless there is absolute necessity for the alienation, or it is greatly for the benefit of the ward (emphasis has been supplied by me)." ' More important question would be whether the listed conditions remitting the sale of immovable property of the ward by his legal guardian are exhaustive of all the situations or are illustrative of a principle of law governing rule of necessity and benefit to the ward. For example, the first instance which gave sanction for the sale of immovable property of the minor for double its value is clearly illustrative of a monetary benefit. Similarly, other conditions which gave power for sale of the immovable property of the minor by his legal guardian are a pointer in the direction of necessity and benefit. Therefore, the underlying governing rule in case of alienation of immovable property owned by the minor by his legal guardian would be the rule of absolute necessity and benefit. An example which readily came to my mind and which supports the above conclusion was the ailment of the minor and his treatment requiring an expenditure which could be met out of the sale of his immovable property only. Placed in such a dilemma, should the ward be allowed to deteriorate and languish to death at the cost of conserving his property or could the legal guardian lay his hands on his property for saving his life. Neither money nor property are an end in themselves. Their purpose is to promote human weal and that is and should be their proper role in human society. In case of absolute necessity of or clear benefit to the minor, a legal guardian can alienate immovable property belonging to him. In my opinion, the enumerated instances are illustrative of a basic rule of absolute necessity of and benefit to the minor. It appealed to reason also and I would, therefore, humbly accept it as a correct rule of Islamic Law to govern the power of a legal guardian to alienate immovable property owned by his ward. Thus far, I dealt with the point without the aid from the case-law in pre-partition and post-partition era. There are a large number of decided cases which dealt with the question relating to power of a guardian to alienate the immovable property of the ward both under Muslim and Hindu law. Those cases relate to the power of a guardian to purchase immovable property for the minor as also its sale and also the question about specific performance of agreement to purchase or sell the immovable property in the name of the minor. All these cases have been admirably noticed in a Full Bench judgment from Hyderabad High Court in Amir Ahmad and others v. Meer Nizam Ali AIR 1952 Hyderabad 120. Leading judgment in the Full Bench case was given by M.S.Ali Khan, J. In para 3 of the judgment, the learned Judge observes:- "There remains, however, 'a separate and distinct' question whether and how far a minor can make a contract through his guardian. Cases have taken the distinction between the various grades of the guardians. The only guardians, who can within certain limits, make disposition of minor's immovable property are recognized to be the father, his executor, grandfather, his executor or guardian appointed by the Court. Every other guardian like the mother, the uncle, elder brother, etc. Are termed de facto guardians and are deemed to be usually without authority to dispose of or bind the minor for the purchase of immovable property. Question remains how far the dispositions by a father and the other de jure guardians are binding on the minor. As explained in Imambandi v. Haji Mutasaddi', AIR 1918 P C 11, de jure guardian has power to dispose of minor's immovable property, though this power is subject to stringent conditions, all governed by the basic and
---
## Page 6
fundamental principle that the acts of the guardian should be to the advantage and benefit of the minor and his estate. For fulfilling the actual wants of the minor and for his bringing up and maintenance as well as for the preservation of his property these guardians are empowered to dispose of certain immovable property of the minor. Otherwise, even dispositions by them are not considered valid. Taking the reverse side of the case, namely, acquisition of a property for the minor if the contract for the same is for the benefit of the minor and it is actually completed so as to transfer the ownership of the property to the minor, the transaction has been held to be valid." Down below in para 9, the learned Judge stated:- "Lastly, I may refer to the case of `Shri Kakulam Subramaniam v. Kurra Subba Rao', PLD 1948 PC 52. There the mother of a minor son has contracted as guardian to sell a land for paying off the debt of the father of the son and had given possession of it to the promise. The suit for specific performance by the promise was dismissed but on appeal to their Lordships of the Privy Council it was held that: "Their Lordships entertained no doubt that it was within the powers of the mother as guardian to enter the contract of sale on behalf of the respondent for the purpose of discharging his father's debts, and that, if the sale had been completed by the execution and registration of the sale-deed, the respondent would have been bound under Hindu Law." ' They observed further that: "The position of the minor under such a contract is discussed in the following passage with which their Lordships agree, in Pollock and Mulla's Indian Contract and Specific Relief Act, 7th Edn., p.70: "A minor's agreement being now decided to be void (by `Mohori Bibi v. Dhurmodas Ghose', 30 Ind App 114 (PC), it is clear that there is no agreement to be specifically enforced; and it is unnecessary to refer to former decisions and distinctions, following English authorities which were applicable only on the view now overruled by the Privy Council. 'It is, however, different with regard to contracts entered on behalf of a minor by his guardian or by a manager of his estate'. In such a case it has been held by the High Courts of India, in cases which arose subsequent to the governing decision of the Privy Council, 'that the contract can be specifically enforced by or against the minor, if the contract is one which it is within the competence of the guardian to enter into on his behalf so as to bind him by it and, further, if it is for the benefit of the minor'. But if either of these two conditions is wanting, the contract cannot be specifically enforced at all." ' This, in my opinion, is an important and recent pronouncement of the Privy Council and if the portions underlined (here in single inverted commas) were carefully considered, it would be evident that their Lordships of the Privy Council held with regard to contracts entered on behalf of minors by their guardian that they can be specifically enforced by or against the minor if the guardian .Is competent to make a contract binding on the minor and the contract is for the benefit of the minor. (6) It will be seen that the case of 'Mir Sarwarjan v. Fakhruddin Mahomed', 39 Ind App 1 (PC), is based on two grounds, namely, that no contract by a guardian of a minor can be specifically enforced, as in the first place, it lacks mutuality, and, in the second place, a guardian or manager cannot bind a minor by personal covenants. The above review of the cases will show that a contract for the sale or purchase of immovable property is regarded as a personal covenant for the reason that having regard to S.54 of the T.P. Act a mere contract does not pass any interest in or create any charge on land; that until it is executed and registered the title to the land does not pass from a vendor to the vendee, and the contract remains a personal covenant. In spite of this, it has been held in the cases cited above that if the contract for sale is entered into by a certificated guardian under the Guardians and Wards Act or the Court of Wards Act it will be specifically enforced. Similarly, a reference to the summary of Mr. Justice Seshagiri Iyer's judgment given towards the end of para 5 above will show that a personal covenant of a guardian to create a
---
## Page 7
charge over the property in his management binds the minor; that if the guardian acts for the benefit of the minor and borrows, the creditor can sue the minor upon the decree obtained against the guardian on the principle of subrogation; that personal covenants of the guardian for necessaries bind the minor or his estate and that a personal covenant acknowledging a debt binds the minor by keeping alive a pre-existing debt; all these cases in which personal covenants of guardians bind the minors are so well-established that they are termed as accepted propositions by Mr. Justice Seshagiri Iyer. ' Moreover, their Lordships of the Privy Council in the well-known case of `Hanuman Pershad', (6 Moo Ind App 393 PC) have themselves spoken of a guardian borrowing on behalf of a minor and charging his estate in the same sentence; this means that they consider that for necessaries a contract or covenant of loan of a guardian binds the minor; similarly in `Watson and Co. v. Shamlal Mitter' (15 Cal 8: 14 Ind App 178 PC) an agreement by the guardian to pay enhanced rent, which again is a personal covenant has been held to be binding on the minor by their Lordships of the Privy Council. Again in 'Imambandi v. Sheik Haji Mustasaddi' (AIR 1918 PC 11 at p. 16 Col 1), their Lordships of the Privy Council have held clearly that a Mohammadan guardian can bind a minor's estate by a personal covenant entered into for the latter's benefit. Similarly, in 'Kali Dutt Jha v. Abdul Ali', 16 In App 96 (PC) their Lordships of the Privy Council have upheld a sale by the father for the purpose of putting an end to the pending litigation. All these various instances will show that even a personal covenant whether it be of borrowing money or selling immovable property by a guardian binds the minor, if it is for the obvious benefit of the minor or for legal necessity. In fact, works of Moslem Law will show that a guardian can sell the immovable property of his ward in the following among other cases: (i) Where he can obtain double its value; (ii) Where the minor has no other property and the sale of it is absolutely necessary for the maintenance; (iii) Where the late incumbent died in debt which cannot be liquidated but by the sale of such property; (iv) Where there are some general provisions in the will which cannot be carried into effect without such sale; (v) Where the produce of the property is not sufficient to defray the expenses of keeping it; (vi) Where the property may be in danger of being destroyed; and (vii) Where it has been usurped…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.