MOHD. AMIN AND OTHERS versus VAKIL AHMED AND OTHERS.

Citation: [1952] 1 S.C.R. 1133 · Decided: 22-10-1952 · Supreme Court of India · Bench: MEHR CHAND MAHAJAN · Disposal: Dismissed

Judgment (excerpt)

., 
S.C.R. 
SUPREME COURT REPORTS 
1133 
The only order which we need pass in this appeal 
before us under the circumstances i"' that the appeal 
ft; allowed, the decree of the trial court is restored, 
and each party do bear and pay. its own costs of 
this appeal. 
Appeal allowed. 
Agent for the appellants: C. P. Lal. 
Agent for the respondent : S. S. Shukla. 
MOHD. AMIN AND OTHERS 
v. 
VAKIL AHMED AND OTHERS. 
[MEHER CHAND MAHAJAN, CHANDRASEKHARA 
A1YAR and BHAGWATI JJ.] 
Mahomedan Law-Guardianshi[>-De facto guardian-Powers of 
alienation-Benefit to minor, whether material-Whether transac-
tion can be upheld as family arrangement-marriage--Co-habitation 
-Presumption of valid marriage. 
Under Mahomedan law a person who has charge of the person 
or property of a minor without being his legal guardian, i.e., a 
de facto guardian, has no power to convey to another any 
right 
or interest in immoveable property which 
the 
transferee 
can 
enforce against the minor. 
The question 
whether the transaction 
has resulted in a benefit to the minor is immaterial in such cases. 
Where disputes arose, relating to succession to the estate of a 
deceased Mahomedan between his 3 sons, one 
of 
whom 
was 
a 
minor, and other relations, and a deed of settlement embodying 
an agreement in regard to the distribution of the properties 
belonging to the estate was executed by and between the parties 
the eldest son acting as guardian for and on behalf of the minor 
son : 
l-I eld, that the deed was not binding on the minor son as 
his brother was not his legal guardian; as the deed was 
void it 
cannot be held as valid merely 
because it embodied a family 
arrangement ; and the deed was void not only qua the 
minor, 
but with regard to all the parties including those who were 
sui 
juris. 
lmambandi v. Mutsaddi [1918] 45 I.A. 73 relied on. Mahomed 
Keramatullah Miah v. Keramatulla 
(A.LR. 
1919 Cal. 218) 
and 
Ameer Hasan v. Md. Ejay Hussain 
(A.I.R. 1929 Oudh 134) 
commented upon. 
1952 
Shrimati 
Hil'a Devi 
and Others 
v. 
District Board, 
Shahjahanpur •. 
Bhagwati /. 
1952 
Oct. 22. 
1952 
iMohd. Amin 
and Others 
v. 
:Vakil Ahmed 
and Others. 
.Bhagwati /. 
1134 
SUPREME COURT REPORTS 
[1952] 
Under Mahomedan law if thexe was no insurmountable obstacle 
to a marriage and the man and woman had cohabited with each 
other continuously and for a prolonged period the presumption of 
lawful marriage would arise and it would be sufficient to establish 
a lawful marriage between them. 
Khaja Hidayut Ool/ah v. Rai fan Khanam (1844, 3 Moo I.A. 
295) referred to. 
Crv1L 
APPELLATE 
JuR1so1cTION : 
Civil 
Appeal 
No. 51 of 1951. 
Appeal from the Judgment and Decree dated the 
11th September, 1945, of the High Court of Judicature 
at Allahabad (Brand and Waliullah JJ.) in First Ap-
peal No. 212 of 1942 arising out of the Judgment and 
Decree dated the 28th February, 1942, of the Court of 
the Civil Judge of Azamgarh in Original Suit No. 4 
of 1941. 
S. P. Sinha (Shaukat Hussain, with him) for the 
appellants. 
C. K. Daphtary (Nuruddin Ahmed, with him) for 
the respondents. 
1952. Oct. 22. The judgment of the Court was 
delivered by 
BHAGWATI J.-This is an appeal from the judgment 
and decree of the High Court of Judicature at Allaha-
bad which set aside a decree passed by the Civil 
Judge of Azamgarh decreeing the plaintiff's claim. 
One Haji Abdur Rahman, hereinafter referred to as 
"Haji" 
a Sunni 
Mohammedan, 
died 
on 
the 
26th 
January, 1940, 
leaving 
behind 
him a 
large estate. 
He left him surviving the plaintiffs 1 to 3, his sons, 
plaintiff 4 his daughter and plaintiff 5 his wife, defen-
dant 6 his sister, defendant 7 bis daughter, by a pre-
deceased wife Batu! Bibi 
and defentlants 1 to 4 his 
neph~ws and defendant 5 his grand-nephew. 
Plaintiffs 
case is that immediately after His death the defen-
dant 1 who was the Chairman, Town Area qasba 
Mubarakpur and a member of the District Boa.rd, 
Azamgarh and defendant 5 who was an old associate 
of his started propaganda against them, that they 
set 
afloat a rumour to the effect that the plaintifl's 1 to 4 
I 
f 
' _f 
S.C.R. 
SUPREME COURT REPORTS 
1135 
were not the legitimate children of Haji and that the 
plaintiff 5 was not his lawfully wedded wife, that the 
defendants 1 to 4 set up an oral gift of one-third of the 
estate in their favour and defendant 5 set up an oral 
will bequeathing one-third share of the estate to him 
and sought to interfere with the possession of the 
p

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