1. This is an appeal by the defendants in a suit for possession of a 6-annas 1-pie share out of 16 annas in certain immoveable property mortgaged by Darahan Kurmi, ancestor of the defendants-appellants in favour of Sheikh Mohammad Jan, ancestor of the plaintiffs and the pro forma defendants Nos. 10 to 18 The plaintiffs claimed Rs. 351 by way of mesne profits. Alternatively, they claimed a decree for recovery of Rs. 689-7 being their share in the mortgage-money according to the account set out at the foot of the plaint. The mortgage in suit was a usufructuary mortgage made on the 12th of December, 1888, to secure a sum of Rs. 898. The mortgagee died about the year 1804 leaving three sons, five daughters and two widows. Sheikh Ghulam Mohiuddin, a step-brother of the plaintiffs Nos. 1 to 3 managed the estate for himself and the other members of the family between the years 1904 and 1921. On the 20th of May, 1919, Sheikh Ghulam Mohiuddin received the entire mortgage money from the defendants Nos. 1 to 9 and released the property in their favour. This was at a time when admittedly Ghulam Dastgir, the plaintiff No. 1, was a minor.
2. The plaintiffs allege that Sheikh Ghulam Mohiuddin was not competent to release the mortgaged property during the minority of Ghulam Dastgir at a time when he was not capable of giving his concurrence to the release and that they are not bound by the transaction dated the 20th of May, 1919.
3. The defendants contended, inter alia, that Sheikh Ghulam Mohiuddin was the manager of the family consisting of the plaintiffs and of the other defendants who have been arrayed as pro forma defendants that he was competent to discharge the mortgage debt and that the plaintiffs were bound by the release granted by him. This contention was sustained by the Court of first instance which dismissed the plaintiffs' suit. The lower Appellate Court concurred with the finding of the trial Court that Sheikh Ghulam Mohiuddin was the manager, karpardaz and guardian of the minor plaintiff between the years 1904 and 1921, but it held that under the Muhammadan Law it was beyond the competence of Sheikh Ghulam Mohiuddin to release the mortgaged property during the minority of one of the plaintiffs. It is contended before us that the Court below has erred in arriving at this conclusion. We have considered the question in all its aspects and have not the slightest doubt in holding that the decision of the Court below is right. Where, upon the death of a usufructuary mortgagee, his estate devolves upon a number of heirs under the Muhammadan Law, each of such heirs has a distinct and defined interest in the mortgaged property; and payment to one of the heirs without the concurrence of the rest, cannot operate as a valid discharge of the mortgage-debt. The several heirs of Mohammad Jan upon whom the inheritance devolved must be considered as a single unit. Tindal C.J., observed as follows in Decharms v. Horwood (1834) 10 Bing. 526 at p. 529 : 4 Moo, & Sc. 400 : 3 L.J.C.P. 198 : 131 E.R. 999: 'The authorities all agree that whatever be the number of parceners, they all constitute one heir. They are connected together by unity of interest, and unity of title.' Where the mortgagee rights have devolved upon a number of persons by inheritance under the Muhammadan Law, the various co heirs are interested in the property according to their Quranic shares and constitute tenants-in-common. In Manzur Ali v. Mahmud-un-nissa 25 A. 155 : A.W.N. (1902) 216 it was held by Stanley, C.J., and Banerji, J., that where the obligees are tenants-in common, the discharge by one of the obligees cannot be set up as a defence against the other obligee or obligees suing for his or their shares of the debt. A similar view was taken by a Bench of the Bombay High Court in Sitaram Appashet v. Sridhar Anant Prabhu 27 B. 292 : 5 Bom. L.R. 91 and it was held that where property was mortgaged to one person, who subsequently died leaving a number of heirs jointly entitled to the estate, payment made by the mortgagor of the entire amount due upon the mortgage to only one of the heirs without the concurrence of the others did not amount to a valid discharge to the mortgagor. The same view was taken by this Court in Ram Chandra v. Goswami Rojjan Lal 5 Ind. Cas. 129 : 32 A.164 : 7 A L J. 99.
4. It ought to be remembered that Ghulam Mohiuddin was not the legal guardian of the plaintiffs Nos. 1 to 3 under the Muhammadan Law. Where a brother, who has no derivative authority from the legal guardian, i.e., from either the father or the paternal grandfather of the minor, assumes the management and control of the minor's property, he cannot impose any obligations upon the minor excepting such as afford protection to the minor's estate. Ghulam Mohiuddin was only a de facto guardian, and in arrogating to himself the management of the minor's property he was no more than a fazuli. The powers of a guardian under the Muhammadan Law to deal with the property of the minor are extremely limited, and his authority to treat the immoveable property of the minor, which is technically described as akar, is more restricted still. It is not necessary for us to decide whether a person in the position of Ghulam Mohiuddin was or was not competent to discharge a simple debt in which he was jointly interested with the minor. But where the debt is secured by usufructuary mortgage of immoveable property which was in possession of the minor and himself, it was clearly beyond the range of his authority to release this property at a time when the minor was not competent to signify his assent to the transaction. The nature of the powers possessed by the de facto guardian to deal with the minor's property has been discussed by the Judicial Committee in Re Imambandi v. Mutsaddi 47 Ind. Cas. 513 : 45 C.878 : 35 M.L.J. 422 : 16 A.L.J. 800 : 24 M.L.T. 330 : 28 C.L.J. 409 : 23 C.W.N. 50 : 5 P.L.W. 276 : 20 Bom. L.R. 1022; (1919) M.W.N. 91 : 9 L.W. 518 : 45 I.A. 73 (P.C.). At page 894 Page of 45 C.--[Ed] their Lordships observed: 'Whilst an executor-guardian (wasi) may 'sell or purchase moveables on account of the orphan under his charge either for an equivalent or at such a rate as to occasion an inconsiderable loss', dealings with his immoveable property are subjected to strict conditions..........'In fact the Mussulman Law appears to draw a sharp distinction between moveable and immoveable property (akar) in respect of the power of guardians, as will be seen from the following passage in Bailie's 'Digest', page 689: With regard to the executor of a mother or brother,--when a mother has died leaving property and a minor son, and having appointed an executor, or a brother has died leaving property and a minor brother, and having appointed an executor, the executor may lawfully sell anything but akar belonging to the estate of the deceased, but can neither sell the akar, nor lawfully buy anything for the minor but food and clothing, which are necessary for his preservation, etc.'
5. We are of opinion that Ghulam Mohiuddin was not competent to release the minor's interest in the mortgaged property which constituted akar under the Muhammadan Law.
6. An exception has been taken to the fact that the question of the plaintiffs' share in the estate of Mohammad Jan has not been determined by either of the Courts below. This objection is well-founded; but we have worked out the shares of the plaintiffs who can under no circumstances be entitled to less than a 6-annas 1-pie share in the estate of Mohammad Jan as claimed by them. If the defendants Nos. 1 to 9 have any grievance, they can proceed against Ghulam Mohiuddin. They made the payment to an unauthorised person and they cannot ask this court to pass a decree not as against them but as against Ghulam Mohiuddin.
7. We dismiss this appeal with costs.