1. Assuming the facts of the case to be as found by the Subordinate Judge of Tinnevelly, the Question raised for pur decision in this appeal is whether the defendants Nos. 3 to 6 in the action have been rightly held to be liable on the promissory note for Rs. 5,000(Exhibit A) executed in favour of the plaintiff by the defendants Nos. 1 and 2 on the 17th May 1902 under the following circumstances. Defendants Nos. 3 to 6 who were minors not only at the time when the money sought to be recovered was advanced by the plaintiff but also at the date of the institution of the suit, are the children of one Mowl Ally Tharagan, a Muhammadan, and the defendants Nos. 1 and 2 are Mowl Ally's brothers. The three brothers lived together and traded jointly until 1896 when Mowl Ally died. The first defendant, t who, soon after Mowl Ally's death, married his widow, the mother of defendants Nos. 3 to 6 earned on the old business jointly, with the second defendant on behalf, not only of themselves but of the defendants Nos. 3 to 6 who lived under the protection of the first defendant, the latter purporting to act as their guardian. The sum of money in question was borrowed for the purposes of this business which appears to have proved a financial failure in the hands of the first and the second defendants. The Subordinate Judge has passed a decree against all the defendants and against the minor defendants whose appeal we have to consider; the decree is to the effect that the plaintiff will recover from them Rs. 4,718-12-0, the amount found to be owing on the promissory note, to the extent of their interest in the assets and properties belonging to the business.
2. The Subordinate Judge does not tell us upon what principle of law he has based the liability of the appellants. If he has proceeded upon the law governing the joint family tenure of property among the Hindus as he would seem to have done, he has clearly fallen into an error. Such a system of homing property is not recognized by the Muhammadan Law, and the principle on which that system is founded cannot be applied to the determination of questions relating to the tenure and devolution of property among Muhammadans. No doubt, it would be otherwise in the case of a family which may be proved to have adopted by custom having the force of law the joint family mode of holding property; but no such custom is alleged in the present case. Under the Muhammadan Law a co-owner is presumed in the absence of an express contract to the contrary to hold his property in severalty whether that property represents a share in tangible, movable or immovable property, chose in action, or a trading concern.
3. The business in which Mowl Ally was interested must be treated as an ordinary partnership concern with all its incidents. On his death the partnership came to an end. On this point the Muhammadan Law is at one with the English Law. In the Heda a it is laid down (see Hamilton's Transaction,' Bensley Edition, Volume II, page 328, or Grady's Edition, page 229.
4. If one of two partners die...the contract of partnership is annulled; because a contract of partnership comprehends an appointment of agency, which is essential to the existence of partnership, for the reasons already assigned; now agency is annulled by death.... Upon the agency, therefore, being annulled, the contract of partnership is also annulled.'
5. The partnership being thus dissolved by Mowl Ally's death his interest in the assets descended to his heirs who are his widow and his children, the defendants Nos. 3 to 6, in the shares allotted to them by the Muhammadan Law. They do not succeed, it must be remembered, by reason of their being members of his family, though they may have lived as such, for the question of succession or heirship in Muhammadan Law in no way depends upon the fact whether the persons designated by the law as heirs were members of the family of the propositus or not. And as already indicated each heir took his share in severalty subject, as between himself and the other heirs, to the payment of a proportionate share of the debts of the deceased, although the creditors of the deceased might be entitled to realise the entire debt from the share of one of the heirs. It may also be that for certain purposes and in certain circumstances one of the several heirs would represent the whole estate, but in this case it is unnecessary to discuss that question as the defendants Nos. 1 and 2 are not heirs of Mowl Ally at all.
6. What authority then had the defendants Nos. 1 and 2 to contract the debt on behalf of the defendants Nos. 3 to 6? They had no such authority as partners, for the partnership ceased to exist on Mowl Ally's death, and the debt in question was not contracted in the course of the winding up of the affairs of the partnership. Nor did they derive any authority from the fact that they were the managing or senior members of the same family as the appellants see Puthummabi v. Vittil Unimachabi 26 M. 734. But it is argued on behalf of the plaintiff that the defendants Nos. 1 and 2 acted as de facto guardians of the appellants and that gave them the power. If in fact they had no legal status as guardians as we shall presently point out, this argument necessarily involves the proposition that if a person not recognized by the law as the guardian of a minor gets hold of the minor's property and chooses to speculate with it, any debts incurred by him in the course of' the business will bind the minor's property; provided he purported to act, and we shall assume in good faith, for the benefit of the minor. We have not been referred to any authority which goes to the length of supporting such a contention which on its very face is untenable, nor are we aware of any. On the other hand, the decisions Nizam-uddin Shah v. Anandi Prasad 18 A. 373 and Moyna Bihi v. Banku Behari Biswas 29 C. 473 are authorities against the soundness of the plaintiff's proposition.
7. The ruling in the case of Mafazzal Hosain v. Basid Sheikh 34 C. 36 : 4 C.L.J. 485 : II C.W.N. 71 cited by the Vakil for the respondent has no application as the transaction upheld there was found to be to the manifest advantage of the minor and was entered into under circumstances of necessity. In the Muhammadan, no less than in the English system of law, the State is especially charged with the care of the person and property of minors, and when the Mohammadan Law recognizes the right of certain relatives to act as guardian it does so on the assumption that the particular ties of relationship are a guarantee that such person would act for the benefit of the ward. Even in these cases the law defines and limits the authority of the guardian and vests the Court with powers of constant supervision and control. In Muhammadan Law the right to the custody of an infant's person and his property does not in all cases reside in the same individual. So far as the minor's property is concerned the law concedes the right of guardianship only to the father or his executor, and in the absence of either to the grandfather or his executor. Failing these the Court must appoint a proper guardian (see Wilson's Anglo Muhammadan Law,' page 209). The defendants Nos. 1 and 2 were not appointed guardians by the Court nor is it suggested that they were so appointed by the father of the minors. We are not, therefore, called upon to discuss the powers of a lawful guardian under the Muhammadan Law to deal with his ward's property, nor, having regard to the admitted facts of this Case, is it necessary to consider those decisions of which Mafazzal Hosain v. Basid Sheikh 34 C. 36 : 4 C.L.J. 485 : 11 C.W.N. 71 is the type and in which dealings by a person described as the natural guardian have been upheld as being to the obvious advantage of the minor.
8. The plaintiff, who made advances to the defendants Nos. 1 and 2 in the course of the business which they carried on, is not thus entitled to hold the minor's interest in the assets of the business which their father Carried on jointly with the defendants Nos. 1 and 2 or what now represents such interest liable for the debt. On this ground alone the appeal must be allowed and we have, therefore, thought it unnecessary to consider the other questions raised in the grounds of appeal. The decree of the Subordinate Judge so far as it gives any relief against the appellants is discharged, and the suit as against them must be dismissed with costs throughout.