Turner, Officiating C.J., Spankie and Oldfield, JJ.
1. Under the Muhammadan law, the estate of a deceased person must be applied to the payment of his funeral expenses and debts before the heirs can make partition of it. The discharge of debts is a matter of necessity, the right of the heirs is connected with the estate on the sole condition of its being free from incumbrance, whence it is that the discharge of the funeral expenses precedes the right of the heirs, as that is also a matter of necessity--Hedaya, Bk. XXV. Nevertheless, the circumstance of a small debt attaching to the estate of a deceased person does not prevent the heirs from inheriting, whereas if the estate were completely involved in debt they would be prevented--Hedaya, Bk. XXVI. While then the heirs might lawfully take possession of an estate not completely involved in debt, the creditors have the right to sue such of the heirs as have taken the estate; ''but they are entitled to have recourse to a single heir only in a case where all the effects are in the hands of that heir;' and the reason given is--'that although any one of them (the heirs) may act as plaintiff in a cause on behalf of the others, yet he cannot act as defendant on their behalf unless the whole of the effects are in his possession.'
2. There is, however, still another provision of the Muhammadan law, that if a creditor desires to realize his debt out of the akar, or immoveable property, of the deceased, he cannot obtain a decree to the prejudice of heirs who are not parties to the suit on the mere confession of some of the heirs, but he must establish his claim by proof--Hedaya, Bk. XXXIX., ch. 1.
3. In the case now before the Court it appears from the sale-deed that the plaintiff was in possession, and that the deed was executed on her behalf by a person who had no legal right to represent her. It does not appear whether she was or was not a party to the suits brought by the creditors and properly represented in those suits: nor whether the decrees obtained in those suits: passed on confession of the defendants or after proof was given of the debts.
4. If the minor was in possession, and was not a party to, or properly represented in, the suits in which the creditors obtained decrees, then it would seem she cannot be bound by the decrees, nor by the sale subsequently effected, and she is entitled to recover her share, but it is only equitable to require that the recovery of her share should be contingent on the payment by her of her share of the debts, for the satisfaction of which the sale was effected.
5. The doctrine that a sale made by one or more of the heirs of a deceased Muhammadan, in lawful and exclusive possession of his estate, in discharge of a debt which has been adjudged to be due from it, is valid, though it appears reasonable and equitable, may not be altogether free from doubt. But, in the case in which this reference has been made, it is not clear that the two widows, who took upon themselves to sell the plaintiff's share, were lawfully in possession of it to her exclusion, and they were certainly not legally competent to act on her behalf as her guardians. Under the circumstances, it would seem, therefore, that she is entitled to recover her share, on payment of her share of her father's debt which was discharged by the sale. (The case having been returned to the Division Bench (Turner and Oldfield, JJ.), it was remanded to the lower appellate Court to try the following issues:--'Was the plaintiff a party to, and properly represented in, the suit in which the creditors of her ancestor obtained decrees which were subsequently satisfied by the sale proceeds? What is the sum she was bound to contribute in payment of the debts discharged out of the sale proceeds?'