VEMANA RAMACHANDRAYYA NAIDU Vs. ABDUL KADAR CHISTHI

JUDGEMENT

(1.) THIS appeal arises out of a suit on a mortgage which was tried by the learned Subordinate Judge of Nellore. The mortgage is dated 16th May, 1927 and was executed by the first defendant on behalf of himself, as duly accredited agent of his brother, Mustapha, and as the guardian of the eighth defendant, the surviving son of the executant's deceased brother,, Ahammad. The mortgagee was one V. Veerappa Naidu, the mortgage deed being for Rs. 5,172. In respect of that amount, Rs. 3,900 was to discharge a preexisting mortgage debt created by one Pacha Saheb, the father of the first defendant, and the grandfather of the eighth defendant. The first defendant was not the legal guardian of the eighth defendant but was solely a guardian who has been referred to colloquially is a " de facto guardian".

(2.) THE learned Subordinate Judge in his finding expressed the view that the interest of the eighth defendant in the mortgaged property was not affected by the mortgage executed by the first defendant as de facto guardian, and so far as the eighth defendant was concerned, he was dismissed from the suit. There were other defendants and other matter arising, but in the present appeal the sole question for decision is whether the eighth defendant's share in the property, the subject of the mortgage, is affected by the deed, and whether the execution of the deed by the first defendant as de facto guardian of the eighth defendant validates the mortgage so far as the eighth defendant is concerned.

(3.) IN Kunhibi v. : AIR1939Mad881 , it was held that when a de facto guardian of a Mahomedan minor borrowed money by means of a mortgage in order to dis -chartge a decree on a previous mortgage executed by the guardian, the latter mortgage was void and of no effect as regards the minor. In his judgment, Wadsworth, J., referred to Imambandi's case, (1917) 35 M.L.J. 422 :, L.R. 45 IndAp 73:, I.L.R. 45 Cal. 878 (P.C.) and to Venkatarayudu v. Aivna Khasim Saheb (1935) M.W.N. 943. He differed from the decision in the latter authority but followed the principles laid down in Imambandi's case, (1917) 35 M.L.J. 422 :, L.R. 45 IndAp 73 :, I.L.R. 45 Cal. 878 (P.C.).