1. This appeal arises out of a suit upon a mortgage. In 1925 one Navroji Pestonji died leaving three children and a widow, by name Tehemina. In November, 1927, Tehemina was given letters of administration to his estate, and in 1929, purporting to act for herself and as guardian of her minor son, she mortgaged certain property to her brother Temulji for Rs. 4,000. In March, 1931, she executed in favour of the plaintiff the mortgage in suit, this time purporting to act for herself and her three minor children. The purpose of the mortgage was said to be the need to pay off the mortgage to her brother, and indeed the old mortgage was endorsed as satisfied on the day of the execution of the new mortgage. In 1934 she died, and another of her brothers, by name Bejanji, became guardian of her minor children. In 1936 the plaintiff brought the present suit. He alleged in his plaint that after Tehemina had taken out letters of administration and obtained property thereunder, including the two houses mortgaged, she mortgaged the houses to her brother for paying the assessment due on certain land, in other words for legal necessity and for the benefit of the estate, and that thereafter for herself and as guardian of her minor son she executed the second mortgage in favour of the plaintiff for the purpose of paying off the old mortgage, in other words for legal necessity and for the benefit of the estate. The written statement denied that there was any assessment due upon the property mentioned, and it also denied that Rs. 4,000 was borrowed from Temulji for paying the assessment; and the plaintiff was put to the proof of these things. Legal necessity was denied, and the authority of Tehemina to create a burden on the property of the minors was denied also, whether by the mortgage to Temulji or by the mortgage to the plaintiff. The trial Court found that the mortgage in suit was proved, but that it was not binding on the defendants except in so far as Tehemina's one-fourth share in the estate had come to them. It was held that the mortgage was not executed by Tehemina in her capacity of administratrix of the estate of her husband, and that it therefore could not bind the estate unless it were proved to have been passed for legal necessity; and on that question it was held as a, fact that no legal necessity was proved. The plaintiff has accordingly come in appeal.
2. The first point argued by his learned counsel is that the trial Court was wrong in holding that the mortgage was not passed by Tehemina in her capacity of administratrix; and it is argued that once it is held that on a true construction of the deed she did act as administratrix of the estate, then by reason of Sections 211 and 307 of the Indian Succession Act, 1925, the estate would be bound by the mortgage. It is true that she was in fact an administratrix of the estate and had been given letters of administration; and the mortgage mentions that fact. But it seems to mention it only by way of explaining how possession of the property had come to the mortgagor and how from the mortgagor it went into the possession of her brother Temulji. But it is impossible on reading the mortgage by itself to read into it any indication that it was an administratrix as such who was mortgaging the property. It quite clearly says that she mortgaged for herself and as guardian of her minor children; and in the earlier mortgage (which stands on much the same footing) she said that she mortgaged the property for herself and her minor son. The mortgage contains a covenant for the repayment of the amount due by all four of them, and that is hardly consistent with a mortgage executed by an administratrix as such. It is true that the plaint does mention that she had obtained letters of administration and in consequence thereof was in possession of the property to be mortgaged; but otherwise it does not suggest in any way that the suit was brought upon the footing that the mortgage was executed by an administratrix, and no amendment to that effect was ever sought. Nor is there any suggestion in the plaint that she had a right under Section 211 of the Indian Succession Act to mortgage the property on the ground that it vested in her as legal representative of her deceased husband, and the case was not tried on those lines at all.
3. The appellant plaintiff next contends that even if it is to be held that the mortgage was executed by Tehemina as guardian and not as an administratrix still she was entitled to do so for legal necessity and legal necessity in fact is proved on the evidence. There is some indication in the course of the evidence that she carried on her husband's business, which was connected with grass, and that the mortgage to her brother was in some way connected with that business. But the difficulty in the way of the plaintiff is that the written statement denied Tehemina's authority to mortgage the property at all, and it seems clear that she had no authority in Jaw to mortgage it even for what (in Hindu law) is called legal necessity. Moreover, it seems clear on the authorities that even if she did execute the mortgages as administratrix, it would have to be proved that the mortgage was executed in the due course of administration, and if that were proved, it would still have to be shown that she was entitled to mortgage the general estate as distinct from the business for which the plaintiff alleges there was legal necessity. Even then the plaintiff's difficulty is not at an end, because it is clear that an executor (unless expressly authorised by the will) or an administrator is not entitled to continue the business of the deceased at all except for the purposes of winding it up. If he does continue it for any other purpose than winding up, it is deemed to be continued at his own risk. For these general propositions of law I may refer to Italia v. Mohammad  Mad. 211., Tarakeswar Das Gupta v. Ambika Charan Bhattacharjee (1927) I.L.R. 55 Cal. 892 where the English cases are discussed, Bank of Bombay v. Suleman Somji (1907) L.R. 35 IndAp 139 and 'Williams on Executors', 1931 edn. 2. p. 1171.
4. The next contention raised on behalf of the plaintiff is that, assuming Tehemina executed the mortgage for herself and as guardian of her children and not as administratrix, she was entitled to do so for legal necessity and in fact legal necessity is proved on the evidence of the case. But the written statement denied Tehemina's authority to mortgage the property at all, and; it is argued on behalf of the defendants that a Parsi guardian cannot alienate property on behalf of her wards even for legal necessity. This point was not taken at the trial, and it is contended that we should not allow it to be raised now, since it is a question which depends partly upon evidence of Parsi usage. The legal position of Parsis in the mofussil appears to be that in the absence of any statutory provision relating to them they are governed in the first place by usage, and, secondly, by the rules of equity and good conscience: see Shapurji v. Dossabhoy (1905) 7 Bom. L.R. 988, and Mancharsha Ashpandiarji v. Kamrunisa Begam (1868) 5 B.H.C.R. 109 In Mithibai v. Limji Nowroji Bmaji (1881) I.L.R. 5 Bom. 506. it was stated that in the absence of evidence of any specific law or usage applicable to a particular case, the law applicable to Parsis in the mofussil of the Presidency of Bombay is that of justice, equity and good conscience alone, and it was stated that in applying this rule to the facts of any particular case the Courts would be guided by the general principles of English law applicable to a similar set of circumstances. If there were any Parsi custom or usage by which guardians were permitted to alienate the property of their wards, it is difficult to believe that some of such cases would not have come before the Courts. But it does not appear that there have been any such cases, and we therefore think ourselves entitled to assume that Parsi usage is not on those lines. In so far as Parsi law is governed by the general principles of English law, it must, I think, be held that a Parsi guardian has no authority to alienate the estate of a ward except with the permission of the Court; and that applies to every guardian, no matter how appointed and whether de facto or de jure. In Trevelyan's 'Law Relating to Minors', 5th edn., p. 167, it is so stated quite definitely with regard to guardians other than those appointed by the Court and other than Hindus and Mahomedans. In Tulsidas v. Raisingji : (1932)34BOMLR1483 ., in which it was decided that a de facto guardian has power under Hindu law to alienate a ward's property for legal necessity, the learned Chief Justice observed (p. 1494) 'It is of course clear that under English law a de facto guardian of an infant cannot sell the infant's property', and it has been suggested in the course of the argument in this case that the natural guardian of the minors' estate was not the mother of the minors and therefore Tehemina was no more than a de facto guardian. In Halsbury's Laws of England (2nd edn., Vol. XVII, pp. 699 and onwards) much is said as to the powers of a guardian with respect to the property of the minors, but there is no suggestion anywhere that the guardian has power to alienate the minor's property except by permission of the Court. It seems clear therefore that Tehemina had no authority to execute either of the mortgages in suit. It follows that the question Of legal necessity does not arise at all, and I do not feel called upon to go into the evidence on that point. Nor do I feel called upon to discuss the correctness of the learned Judge's rejection of various applications made by the plaintiff for the admission of evidence at the close of the case, for the examination of certain witnesses, and for the amendment of the plaint so as to show the guardian of the minors as also being an administrator of the estate, the plaintiff having only recently come to know that he had taken out letters of administration. On the view we take of the nature of the mortgage (that it was not by an administratrix but by a guardian) and also in view of the fact that Tehemina had no authority in law to mortgage the property of her wards, the granting of those applications would not now serve any useful purpose, even if we thought that they ought to have been granted in the first instance.
5. The appeal fails and must be dismissed with costs.