1. The property claimed by the plaintiff-appellant is 5/6 ths of a certain property once owned by one Musammat Chanda. She mortgaged the whole of it in 1914 and died a year later. She left her surviving two heirs her mother Mt. Nasiban and her son Siddiq. The son was a minor. The mother sold the entire property in 1915 to the respondent No. 1 in this appeal for a sum of Rs, 500. She received in cash a sum of Rs. 100 and left with the transferee the sum of Rs. 400 for the purpose of payment of the mortgage which had been executed by Mt. Chanda in 1914. Siddiq attained majority sometime in 1919 and in 1921 sold the property to the appellant. The appellant brought the suit out of which this appeal has arisen for recovery of 5/6 ths of the property being the share of Siddiq in it.
2. The Court of first instance held that the appellant was entitled to recover the 5/6ths of the property but subject to payment of 5/6ths of the sum of Rs. 400 that went to pay off the mortgage created by Mt. Chanda.
3. The learned Additional District Judge reversed the decree and dismissed the suit in toto. He held that the suit was barred by time. He also recorded a finding to the effect that, in any case, the appellant could not succeed without paying 5/6ths of a sum Rs. 900, and not of a sum of Rs. 400 only.
4. Two points have been urged before us in this appeal. First, it has been contended that the act of the mother Nasiban could not bind the son Siddiq at all. It is urged that it is immaterial whether there was any necessity for the sale or not. The second point that has been urged is that the suit was not time barred. Taking the second point first. It appears that the sale having been made in 1915 the suit was amply within time for the ejectment of the purchaser.
5. To take up the first. The point raised is really concluded by the judgment of the Privy Council in Imambandi v. Mutsaddi 63 Ind. Cas. 806 : 19 A.L.J. 783 : 3 U.P.L.R. (A.) 146 : 44 A. 5; (1922) A.I.R. (A.) 162. As we read the judgment, their Lordships have authoritatively laid it down that a guardian of a Muhammedan minor who is not a guardian under the law is a pure and simple out-sider, or fazuli as he has been described, and he cannot bind the property of the minor by any act of his whether there be any necessity or benefit to the minor. In view of this Privy Council case it is not necessary to go into any of the rulings of this Court in which it may have been held that a de faoto guardian of a Muhammedan minor could bind his property by a transaction by which the minor has been benefited.
6. A third question arises in this case. It appears that there was a decree against Mt. Chanda and several other persons for the sale of certain properties. It has been found as a fact by the Court below that the property now in question was one of the properties dealt with by the decree. We have not get any copy of the decree on the record. It appears from the judgment that, besides the property in question in this appeal, there were other properties involved. It is clear that the whole of the liability for the decretal amount cannot be laid on the property in question. At any rate, the respondent No. 1 was bound to contribute to the extent of his own liability, The Court below, therefore, was not justified in holding as a matter of law that the appellant was bound to pay 5/6ths of the sum of Rs. 900. The Court of first instance allowed 5/6ths of Rs. 400 or a sum of Rs. 333-5-4. This decree the appellant accepts.
7. The result is that we allow the appeal, set aside the decree of the lower Appellate Court, and restore the decree of the Court of firstinstance with costs which will include fees on the higher scale.
8. In view of the fact that the plaintiff agrees to pay Rs. 333-5-4 to Babu Nobin Chandra Bose the question does not arise whether if he had insisted he would not have been able to escape all liability. I note that we are allowing the amount without expressing any opinion as to whether he is liable to pay under the law. We are allowing it because he agrees to pay it.
9. I concur in allowing the appeal with costs including fees on the higher scale.