S NAZIRUDDIN ASHRAF Vs. KHARAGNARAIN

JUDGEMENT

(1.) Miajan, the father of defendants 1 and 2, died in 1930 leaving a widow, four daughters and two sons defendants 1 and 2. Prior to his death he had borrowed money from the plaintiff-respondent on five promissory notes. By a deed of partition dated 3 January 1932, his heirs partitioned his properties amongst themselves according to the shares to which they were entitled under the Mahomedan law, and in respect of the amount due to the plaintiff on the hand notes each heir undertook liability for an amount proportionate to his or her interest in the estate of the deceased. The share of each of the sons was 3i annas, of the daughters If annas and of the widow 2 annas. Defendant 2 was at the time a minor. By the partition deed the minor's property was placed under the management of his elder brother, defendant 1.

(2.) On 24 January 1932, defendant 1 executed a bond in favour of the plaintiff in respect of both their shares of the liability for their father's debt to the plaintiff- respondent. In executing the bond defendant 1 purported to do so for himself and as guardian of his brother, defendant 2. The bond was not in fact registered, and therefore did not operate as a mortgage bond but merely as a money bond, and it is on that basis that the plaintiff instituted the present, suit against the two sons of Miajan. Defendant 1 admitted his liability for half the amount due under the bond but defendant 2, who attained his majority in August 1933, denied that defendant 1 had been his guardian or that he had power to bind him by purporting to execute the bond as his guardian. The Court below decreed the plaintiff's suit as to half of the claim against each of the two defendants. Prom that decision defendant 2 has preferred this appeal and the plaintiff has filed a cross-objection claiming that he is entitled to a joint decree against both the defendants.

(3.) It is contended on behalf of the appellant (defendant 2) that defendant 1 was merely a de facto guardian and that as such he had no authority to bind the appellant. The facts of the present case are peculiar in this respect that the appellant is undoubtedly liable to the plaintiffs for a part of his father's debt not exceeding the amount of the property which he inherited from his father. There is no suggestion in this case that the appellant's share of his father's property is less than the amount for which the decree makes him liable. In so far as the bond in suit dealt with the appellant's liability for half the amount of the bond, it did not increase the amount for which the appellant was liable under the Mahomedan law.