MUHAMMAD MOIZUDDIN MIA Vs. NALINI BALA DEVI

JUDGEMENT

(1.) This is an appeal by the defendants from a decision of the Subordinate Judge of Dacca dated 27 February 1935, by which he decreed the suit of the plaintiff-respondent for recovery of money. The decree was not for the full amount claimed but for an amount less by Rs. 2,045 than what was claimed in the plaint. In order to understand the points in controversy in the present appeal the following relevant facts need be briefly stated. It appears that one Mainuddin Haji borrowed a certain amount of money from the plaintiff. He died on 14 September 1926. He died leaving behind him surviving eight heirs according to the Mahomedan law. The heirs were his three sons who are defendants 1, 2 and 3 in the suit, his two adult daughters who are defendants 4 and 5, his two minor daughters who are defendants 6 and 7 and his widow who is defendant 8 in the suit. Within seven days of the death of the Haji, on 21 September 1926, his adult heirs are said to have executed the hand-note on which the present suit is based and the minors joined in the execution of the same through their brother. The present suit was instituted for recovery of the sum due on this hand-note with interest on 21 December 1933.

(2.) The defences to the suit, so far as they have been stated to us, were first, that the promissory note was a result of misrepresentation that a sum of about Rupees 7,500 was due from the Haji whereas as a matter of fact that Haji did not borrow that sum. On this point the finding of the Court below is that there was no misrepresentation and the money was due. The second defence taken was the defence of limitation and the third defence which concerns the two minor defendants 6 and 7 was that the hand-note was not binding on them seeing that it was executed by their brother who was not a guardian under the Mahomedan law as governing the Sunni Muhammadans. A question was also raised by way of defence that the payment of Rs. 100 on 12 Bhadra 1336 B.S. corresponding to 28 August 1929 was never made. This question is one of fact with reference to the plea of limitation and was raised also in argument before us. The Subordinate Judge found against the defendants on all these points raised by way of defence and he has granted a decree to the plaintiff in part for the sum claimed less by a sum of Rs. 2,045. He has directed that defendants 1 to 3 should be personally responsible for the said amount and the estate of Mainuddin in the hands of the other defendants would be liable for the amount decreed and that the decretal amount would carry interest at six per cent, per annum from date until realization.

(3.) It is against this decree that the present appeal has been brought and the points which have been taken by Mr. Gupta, who appears for the appellants, may be formulated as follows: first, that the Subordinate Judge was not right in coming to the conclusion that there was no misrepresentation at the time of the execution of the hand-note by the heirs of the Haji and that he ought to have come to a different conclusion on the evidence which goes to show that the accounts were never looked into and that the accounts which were somewhat difficult were not taken into account at the time of the execution of the hand-note. The second point which was raised is that the suit is barred by the statute of limitation seeing that the payment of Rs. 100 on 28 August 1929 was not made and if no such payment was made the suit would be barred by the provisions of the Limitation Act. It was argued in the alternative that even if such payment was made the payment was not one which could be taken into account having regard to the amended provisions of the Limitation Act to which detailed reference will hereafter be made. It was contended that in any event the decree against the minor sisters defendants 6 and 7 could not possibly be maintained seeing that the hand-note was executed by their brother who was unauthorized under the Mahomedan law to act as their guardian. These substantially were the three points which were raised before us. It would be convenient to take the last point first, namely, that which deals with the liability of defendants 6 and 7, for we are of opinion for reasons which we will presently give, that the Subordinate Judge has gone wrong in this part of the case in saddling the liability for the hand-note on the said defendants. It is clear that brother is not a legal guardian under the Mahomedan law. We have been referred to the very useful statement of the law in Sir Dinshaw Mulla's Principles of Mahomedan law, Edn. 10, p. 226. In Art. 262 the learned author states the legal guardians of the property of a minor: The following persons are entitled in the order mentioned below to be guardians of the property of a minor: (1) the father; (2) the executor appointed by the father's will; (3) the father's father; (4) the executor appointed by the will of the father's father.