KHADIGA BINT ALI HAMED BESHIR, Applicant-Defendant v. BESHIR MOHAMMED HAMED, Respondent-Plaintiff
Infant-Sale of land-Land sold by mother of Mohammedan child-Guardian-
Approval of sale by Kadi 0/ Sharia court
Land Law-Sale of land-Governor's approval delegated to Native Court-
Land owned by in/ant-Necessity lor approval by Kadi of Sharia Court
Mohammedan Law-s-lniant=-Sate of land by guardian
Land owned by a Mohammedan infant may not be sold by the guard-
ian without first obtaining the approval of the Kadi of the Sharia Court.
The order of the Native Court approving the sale under the powers dele-
gated by the province governor respecting all native dispositions of land,
without first obtaining the Kadi's approval on the infancy question, must
be reversed and the sale of land set aside.
Native Disposition of Land Restriction Ordinance (No.1) 1918.
Native Disposition of Land Restriction Ordinance (No.2) 1923.
Revision
July 24, 1937. Creed C.J.: The facts of this case are plain.
Share No. 32, sagia 7 A, Urn el Teyour Village, Darner District,
Northern Province, was registered in the name of Khadiga Bint Ali
Hamad Beshir. Khadiga is a minor. By native san ad dated June 5,
1934, Fatma Bint Mohammed EI Hiderbi, mother of Khadiga, pur-
• Court: Creed, C.J.
ported to sell this land to the plaintiff, Beshir Mohammed Hamad. In
the sanad Fatma is described as "mother and guardian of Khadiga."
The powers of the Governor under the Native Disposition of Lands
Restriction Ordinance have been delegated by the Governor to the N a-
tive Court of Urn El Teyour in respect of lands within their jurisdiction.
The Native Court made the following entry on the sanad:
"( 1) Seller owns other land sufficient for her maintenance.
(2) Purchaser is a native and cultivator.
(3) The price is reasonable.
The Village Court of Urn Teyour approves this on behalf of His
Excellency the Governor.
(Seal) Omda El Khidir Mohammed
Ageed
Members:
Sh. Mohammed Ahmed Ali
Sh. Mustafa Ahmed (Seal)
Sh. El Nur Fadlalla (Seal)
Sh. Mustafa Abbas Mohammed (Seal)"
By petition dated December 2, 1935, Beshir Mohammed Hamad
applied to the Civil Court for an order that the sale should be registered,
and on January 1, 1936, the province judge ordered that the deed
should be registered, subject to the consent in writing of the Governor
of the Northern Province.
On April 18, 1936, the Sharia Court appointed Osman Munawar
guardian of the child, Khadiga. On March 4, 1937, he applied to the
province judge for the case to be re-opened, on the grounds that
Fatma had no right to sell the minor's land, as at the time of the sale
she had not been officially appointed guardian by the Kadi, and that
the Kadi's consent had not been obtained to the sale of the property.
The province judge dismissed the petition. By petition dated April 28,
1937, Osman Ahmed Munawar applied to this court for revision of the
decree of the province judge on the same grounds.
A mother, even if she is the duly appointed guardian of her in-
fant child, has no power to dispose of the minor's immovable property
without the consent of the Kadi of the Sharia Court. No such consent
was obtained. This transaction cannot be registered, and the decree
of the province judge, so far as it concerns the land of Khadiga Bint
Ali Hamad Beshir, will be set aside, and also the order for payment
of costs by the minor. There will also be an order that the respondent, ,
Beshir Mohammed Hamad, shall bear the costs of the revision amount-
ing to £E.0.550 m/ms.
The attention of the Governor of the Northern Province will be
drawn to the action of the Native Court in approving the sale. The
President of the Native Court not only approved the sale, but he cer-
tified that the minor owns other land sufficient for her maintenance.
On examination of the president of the Native Court, it appears
that he knew full well that the Kadi's consent was essential. As regards
the court's certificate that the minor owned other land sufficient for
her maintenance, the president stated on examination, "The minor has
no other land in Urn EI Teyour. I do not know whether she has land in
Kelli. I cannot explain why I wrote the. words 'seller owns other land
sufficient for her maintenance'." It is clear that the Native Court com-
mitted the gravest dereliction of duty in this matter; In my view the
president and members of the Urn El Teyour Native Court should be
severely censured and the powers which the Governor has delegated
to them should be withdrawn.
Application allowed