RAM AUTAR KURMI Vs. GHULAM DASTGIR

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for possession of a 6 annas 1 pie share out of 16 annas in certain immovable property mortgaged by Darshan Kurmi, ancestor of the defendants-appellants in favour of Sheikh Mohammad Jan, ancestor of the plaintiffs and the pro forma defendants 10 to 18. The plaintiffs claimed Rs. 351 by way off mesne profits. Alternatively, they claimed a decree for recovery of Rs. 681-7-0 being their share in the mortgage money according to the acoount set out at the foot of the plaint. The mortgage in suit was a usufructuary mortgage made on 12 December 1888 to secure a sum of Rs. 898. The mortgagee died about the year 1904 leaving three sons, five daughters and two widows. Sheikh Ghulam Mohiuddin, a stepbrother of plaintiffs 1 to 3 managed the estate for himself and the other members of the family between the years 1904 and 1921. On 20 May 1919, Sheikh Ghulam Mohiuddin received the entire mortgage money from defendants 1 to 9 and released the property in their favour. This was at a time when admittedly Ghulam Dastgir, plaintiff 1, was a minor.

(2.) The plaintiffs allege that Sheikh Ghulam Mohiuddin was not competent to release the mortgaged property during the minority of Ghulam Dastgir at a time when he was not capable of giving his concurrence to the release and that they are not bound by the transaction dated 20 May 1919.

(3.) The defendants contended inter alia that Sheikh Ghulam Mohiuddin was the manager of the family consisting of the plaintiffs and of the other defendants who have been arrayed as pro forma defendants, that he was competent to discharge the mortgage debt and that the plaintiffs were bound by the release granted by him. This contention was sustained by the Court of first instance which dismissed the plaintiffs suit. The lower appellate Court concurred with the finding of the trial Court that Sheikh Ghulam Mohiuddin was the manager, karpardaz and guardian of the minor plaintiff between the years 1904 and 1921, but it held that under the Mahomedan law it was beyond the competence of Sheikh Ghulam Mohiuddin to release the mortgaged property during the minority of one of the plaintiffs. It is contended before us that the Court below has erred in arriving at this conclusion. We have considered the question in all to aspects and have not the slightest doubt in holding that the decision of the Court below is right. Where, upon the death of a usufructuary mortgagee, his estate devolves upon a number of heirs under the Mahomedan law, each of such heirs has a distinct and defined interest in the mortgaged property; and payment to one of the heirs without the concurrence of the rest, cannot operate as a valid discharge of the mortgage debt. The several heirs of Mohammad Jan upon whom the inheritance devolved must be considered as a single unit. Tindal, C J., observed as follows in Decharms V/s. Harwood [1874] 10 Bing. 526, at p. 529: The authorities all agree that whatever be the number of parceners, they all constitute one heir. They are connected together by unity of interest and unity of title.