1. This was a mortgage suit, and the facts of the case were as follows:
One Sheik Ahmed Ally Ostagur died in August 1879, leaving him surviving as his heirs, heiresses and legal representatives according to Mahomedan law, his widow Arzu Bibee, his three children by her, viz., the defendants Ahmed Hosain, Rahimunessa Bibee and Banni Jan Bibee, his son by a wife who had predeceased him, viz., the defendant Palk Jan and his mother Ameenah Bibee.
2. On the 12th May 1881, Arzu Bibee, Ahmed Hosain, and Rahimunessa Bibee mortgaged three plots of land in the 24-Pergunnahs, and one plot in Calcutta to the plaintiffs to secure the repayment of Bs. 2,000, with interest at 12 per cent.
3. The plot of land in Calcutta formed part of the estate of Sheik Ahmed Ally Ostagur; the plots in the 24-Pergunnahs belonged to Arzu Bibee. Subsequently to the mortgage Arzu Bibee conveyed her interest in one of the plots in the 24-Pergunnahs to Ameenah Bibee, who died in February or March 1882, leaving her surviving as her heirs and heiresses, according to Mahomedan law, the defendants Ahmed Hosain, Rahimunessa Bibee, Banni Jan Bibee and Palk Jan.
4. Arzu Bibee died in May 1883, leaving her surviving as her heirs and heiresses, and legal personal representatives her three children, the defendants Ahmed Hosain, Rahimunessa Bibee, Banni Jan Bibee, and her mother, the defendant, Chand Bibee.
5. The mortgage of 12th May 1881, purported to be executed for the purpose of raising money to pay the arrears of rent then due in respect of a certain zamindari belonging to the estate of Sheikh Ahmed Ally Ostagur, situate in Jessore, for the recovery of which the zamindar had put in force the provisions of Regulation VIII of 1819, for the sale of the tenure under which notice of sale had been published, and the day for sale fixed, and for other necessary expenses connected with the said estate. There was a wicked attempt on the part of the defendant Ahmed Hosain to set up as a defence to the suit that the mortgage of 12th May 1881 was not a genuine transaction but a benami one; he denied having received any of the consideration money himself; denied that it was paid to his sisters in his presence; he denied that the money was advanced for the purpose of saving the putni taluk at Jessore. I was satisfied at the time that the man knew he was swearing falsely, and I directed his prosecution for perjury.
6. I am satisfied from the evidence of Golam Hosain that the money was raised for the purpose of paying the arrears of rent due in respect of the putni holding at Jessore, but there is no evidence that there were any other necessary expenses connected with Sheikh Ahmed Ally Ostagur's estate that had to be met, nor is there any evidence as to what that estate consisted of, nor is there any evidence as to whether the arrears of rent could or could not have been paid without having recourse to the mortgage.
7. The defendants Palk Jan and Banni Jan Bibee are infants.
8. The plaintiffs contended that the mortgage was binding upon them, as it was in reality made for their benefit as heirs and heiresses of their father, the executants, or some one of them being their natural guardians.
9. Mr. Sale, for the Defendant Palk Jan, argued that neither of the executants of the mortgage could, according to Mahomedan law, be guardians of his client; that the executants had signed only on their own behalf; and that even if either of the executants had authority to bind the infant's estate, there was not such an urgent necessity as to warrant them in doing so.
10. Mr. Henderson for the infant Defendant Banni Jan Bibee followed the same line of argument. I am of opinion that, as far as Mr. Sale's client is concerned, these contentions must prevail. In Shama Churn Sircar's Tagore Law Lectures for 1873 at p. 477 it is laid down that 'guardians are natural,' testamentary and appointed; and guardianship over a minor is for the purpose 'of matrimony, care of his person, and management of his property. The 'guardianship of a minor for the management and preservation of his property 'devolves first on his or her father, then on the father's executors-next on 'the paternal grandfather, then on his executors, then on the executors of such 'executors, next on the ruling power or his representative, the kazi or judge. 'In default of a father, father's father and their executors as above, all of 'whom are termed near guardians, it rests in the Government, or its representative, to appoint a guardian of an infant's property.'
11. In Macnaghten's Principles of Mahomedan Law, 5th Ed., page 304, it is laid down that, 'in law, guardianship over minors is of two descriptions- 'the one for the purpose of matrimony, the other for the care of property. 'The care of property legally devolves, first on the father and his executor, 'next on the paternal grandfather and his executor, next the right of nomination rests in the ruling power and its administration; that is to say, any person 'whom the Government may please to appoint to the custody of the infant's 'property is a legal guardian, according to the authority (The Viqaya) above 'quoted. First, his father, or the executor of the father, is his guardian, then 'the paternal grandfather or his executor, then the magistrate or his executor.' It is clear from these authorities that neither of the executants of the mortgage had power to bind the infant; neither of them was in the position of a guardian having any power as such over the property of the minor. The suit as against Palk Jan must be dismissed with costs on scale No. 2. I shall, however, allow the plaintiffs to add these costs to the mortgage debt.
12. The case against Mr. Henderson's client is different to the one against Sheik Palk Jan. She is interested in the mortgaged premises not only as heiress to her father, but also as heiress to her mother: this latter interest is bound, but not the former. I am further of opinion that even if any one of the executants of the mortgage had been in the position of near guardian to the infants, there is no sufficient evidence to warrant me in coming to the conclusion that it was absolutely necessary to charge their shares of their father's property.
13. There will be the usual mortgage decree with the necessary declarations; costs on scale No. 2 against the defendants other than Palk Jan. Costs of the guardian ad litem to Banni Jan Bibee to be paid by the defendants on scale No. 2, and the amount added to the mortgage debt.