HAJEE SIDDICK HAJEE SUMAR SAIT Vs. MAHOMED HUSSAIN SAIT, MINOR, BY HIS NEXT FRIEND ZACCHARIA ISMAIL SAIT

JUDGEMENT

(1.) The suit in which this appeal has arisen, was instituted by the plaintiff through his next friend, his maternal uncle, Zaccharia Ismail Sait.

(2.) The facts of the case are, the plaintiff s father and the defendants in the suit, were partners carrying on business in piece goods. The partnership commenced on 16th June 1901, and it appears that the accounts used to be settled from time to time. The last settlement of accounts in the lifetime of the plaintiff s father was in February 1907. The plaintiff s father died on 5th October 1907. The suit is now brought for an account to be taken of the share of the plaintiff s father in the business and for recovery of what may be found due. The shares of the different partners were fixed, the plaintiff s father s share being one-half of the profits. He contributed Rs. 7,500, to the capital; 1st defendant contributed a similar amount, the 2nd defendant bringing in no capital. It also appears that in addition to the capital found by the plaintiff s father he also contributed his labour and skill to the business. The defence to the suit is that after the plaintiff s father died on the 13th November 1907 an account was taken of what was due to the representatives of the deceased on account of his share and two gentlemen of respectable position belonging to the same community as the parties to the suit took accounts on behalf of the plaintiff s mother who was acting as his de facto guardian; and it was ascertained that a sum of Rs. 16,000, in round figures was due on the date of settlement. I might mention that the plaintiff at the date of his father s death was only one year old and he had no paternal relatives, so far as can be gathered from the record, of a near degree. A formal deed of release was drawn up reciting that Rs. 16,000 were due to the estate of the plaintiff s father and, pending investment of the money in immoveable properties, it should remain in the business in the hands of the defendant and that the amount was to carry interest at the rate of 7 1/2 per cent. The settlement was arrived at, not only with the help of two independent men of respectable position in the community but of the maternal grandfather of the plaintiff. Interest at 7 1/2 per cent, amounted to Rs 100 a month and it is admitted by Mr. Barton, the learned Counsel for the respondent, that this amount was regularly paid until about April 1915. The plaintiff is still Under age and the suit, as I have stated, was instituted by a maternal uncle of his, who, according to the evidence1 of the plaintiff s mother herself, used to receive1 the interest payable on Rs. 16,000, every month and make over the amounts to the mother. It is stated by the mother in her evidence that she was receiving the interest on Rs. 16,000 and that it was utilized for her and the minor s maintenance. The last time that payment was received according to the settlement was a few months before the institution of the suit. The suit is instituted on the allegation that very large profits have been earned in the business carried on by the defendants since the plaintiff s father s death and, therefore, it is alleged that if an account be taken of the profits so earned and of what was attributable to the plaintiff s father s share in the assets at the time of his death, it will be found that a very large sum is payable to the plaintiff. The defendants paid the whole of Rs. 16,000 into Court, while the appeal was pending and they claim that all that the plaintiff is entitled to is interest at 7 1/2 per cent, on this amount as arranged under the settlement

(3.) Mr. Justice Bakewell who tried the suits has held that under the Muhammadan Law which governs the question, as to who is the legal guardian of the minor in this suit, the mother is not such guardian, therefore, the so called settlement is of no effect in law, and is not binding upon the minor. He, therefore, held that an account must betaken from the date of the last settlement during the lifetime of the plaintiff s father of the profits earned in the business and that the defendants are liable to pay what has been earned by the user of tike amount due on account of the share of the plaintiff s father. As regards the Rs. 100, which the plaintiff s mother has been receiving from month to month he refused even to give credit for them because the maternal uncle or the maternal grandfather had no power in law to grant receipts, that is to say, they did not properly represent the minor.