1. Two Muhammadan brothers Sanjiappa Row-than and Sheik Muhammad Rowthan acquired considerable properties. Sheik Muhammad died in 1894 and Sanjiappa Rowthan in 1901. The three plaintiffs are the widow, the son and daughter respectively of Sanjiappa. The 2nd and the 3rd defendants are the widow and daughter of Sheik Muhamad. The 1st defendant is the husband of the 3rd defendant.
2. The case for the plaintiffs is that after the death of Sanjiappa Rowthan the properties were entrusted to the management of 1st defendant on behalf of the members of the Muhammadan family, that during the management the 1st defendant misappropriated the properties, that thereupon certain mediators interceded and obtained the transfer of some of the properties to the plaintiffs and that the 1st defendant is still retaining monies belonging to the plaintiffs. The 1st defendant denied his agency and his liability to account.
3. The Subordinate Judge in an unnecessarily long Judgment has come to the conclusion that the 1st defendant managed the properties honestly until 1909, that since then he had not been discharging his duties properly and that therefore he should be held accountable for monies received by him since 1909. The 1st defendant and the plaintiffs have filed a memorandum of objections.
4. The legal position of the 1st defendant has not been correctly appreciated in the court below. We are satisfied that the 1st defendant was asked to manage the properties belonging to the share of Sheik Muhammad. We do not agree with Mr. K. V. Krishnaswamy Aiyar that unless there is direct evidence of an appointment as agent the 1st defendant cannot be held liable; but the agency which 'is inferable from the course of conduct pursued by the 1st plaintiff and the 1st defendant cannot affect plaintiffs 2 and 3.. It is now well settled in this Presidency that a Muhammadan mother is not the de jure, guardian of her children. Ayderman Kutti v. Syed Ali I.L.R. (1912) Mad. 514 : 28 M.L.J. 244 Consequently the 1st defendant could not have been appointed either expressly or impliedly by the 1st plaintiff to be the agent for management of the properties of the second and third plaintiffs. The position occupied by the 1st defendant must under the circumstances be taken to be, as agent of the 1st plaintiff and as administrator de son tort of the properties of the second and third plaintiffs. This being the legal relationship of the parties, the question now for consideration is whether the claim for an account has become barred either wholly or in part. There can be no doubt that an administrator de son tort is not responsible as an agent to render an account. He is only responsible to refund monies which he has received on behalf of the estate. See Williams' Law of Executors and Administrators, Vol. I, p. 190. See the observations in In re Stevens : Cooke v. Stevens (1898) 1. Ch. 162 Consequently the 1st defendant is bound to restore to plaintiffs 2nd and 3rd all the monies received by him from their estate. That estate consists of two classes of property : One consisting of lands which are in the possession of cultivating ryots, the other consisting of bonds for monies borrowed from the estate. As regards the former the finding of the Subordinate Judge which is supported by evidence is that until 1909 the 1st defendant had not misappropriated or retained any monies belonging to the share of the two minor plaintiffs. Therefore he is liable to plaintiffs 2 and 3 only for monies received by him since 1909, and up to the beginning of 1911, when the decision of the arbitrators was given. As regards the latter class of property apparently all the bonds whether renewed in the name of the 1st defendant or still standing in the name of the minor plaintiffs were handed over to the mediators in 1911. The mediators decided that if the 1st defendant was guilty of laches in collecting the monies on the bonds and had thereby allowed them to be barred by limitation, he should make good to the various plaintiffs the loss occasioned by his conduct. Therefore the liability of the 1st defendant so far as the bonds are concerned is regulated by the decision of the arbitrators by Ex. 11 and not by his liability as administrator de son tort. The result will be that so far as the bonds are concerned the 1st defendant should be held liable only in respect of any time-barred debts between 1909 and 1911. After 1911 the 1st defendant having severed his connection with the management any laches on the part of the two plaintiffs to collect monies due to them should not be charged against him. The decree of the Subordinate Judge as far as plaintiffs 2 and 3 are concerned will be modified as indicated above.
5. As regards the 1st plaintiff the Subordinate Judge says that her right of suit is not barred, because the claim of the second and third plaintiffs is not barred by limitation. We are unable to agree with him. It is true that the decision in Ahinsa Bibi v. Abdul Kadar Saheb I.L.R. (1901) Mad. 26 lends support to the view taken by the Subordinate Judge. But we fail to see how in a Muhammadan family where the heirs are entitled to definite shares as tenants in common the cause of action of such heirs can be said to be a joint one. In the case of the 1st plaintiff she was a major and she entrusted the 1st defendant with the management of her property-She has not brought the suit within three years of the termination of the agency consequently her claim so far as the income from landed properties is concerned is barred by limitation. So far as her right to get her share of the time barred debts for which under the award of the arbitrators the 1st defendant was held responsible her claim is saved by Ex-11. The decree in favour or the 1st plaintiff can only be for the loss occasioned to her in respect of the bonds items 1 to 31 mentioned in the plaint schedule.
6. As regards the Memorandum of objections in the view we have taken of the legal relationship of the parties the claim on behalf of the 1st plaintiff and of the other plaintiff is unsustainable. That is dismissed with costs. In the appeal parties will pay and receive proportionate costs.