KUNHIBI ALIAS BEEBI UMMA Vs. KALLIANI AMMA

JUDGEMENT

(1.) This appeal arises out of a suit to recover money alleged to be due on a mortgage executed by second defendant, the mother of the first defendant who was then a minor. Defendants 1 and 2 are Muhammadans and second defendant purported to execute the mortgage as the guardian of the first defendant. The mortgage contains a personal covenant by the second defendant, both on behalf of herself and on behalf of the minor. The property bound by the mortgage belonged originally to second defendant's husband, who in 1917 shortly before his death transferred it to the second defendant as guardian of the minor, directing her to discharge the mortgage then subsisting and waiving in favour of the minor the receipt of the balance of consideration. In substance this assignment (Ex. D) is a gift to the daughter, the mother being empowered to accept the gift on behalf of the minor daughter.

(2.) The then mortgagee and the jenmi both got decrees against the minor and to pay off these decree debts the mother (second defendant) mortgaged the suit property and another item to one Koru Panikkar purporting to act on behalf of the minor first defendant. Koru Panikkar eventually got a decree for the balance due on his mortgage and advertised the suit property for sale. It was to avert this sale that the second defendant executed the suit mortgage-deed and out of Rs. 800 which was the consideration, a sum of Rs. 746-14-7 was paid to Koru Panikkar in satisfaction of his decree.

(3.) The lower appellate Court has found that the plaintiffs cannot get a mortgage decree on the strength of a mortgage executed by the mother of a Muhammadan minor, as de facto guardian. This finding is undoubtedly correct in view of the decision of the Privy Council in the leading case of Imambandi V/s. Mutsaddi (1918) 35 M.L.J. 422 : L.R. 45 I.A. 73 : I.L.R. 45 Cal. 878 (P.C.). The learned Subordinate Judge held, however, that the plaintiff was entitled to a decree on the personal covenants, not only of the second defendant herself, but also of the second defendant as guardian of her minor daughter first defendant. The first defendant appeals.