V.S.T Kadir Meeral Beevi v. S.P.K Muhammad Koya And Another

Govinda Menon, J.:— The plaintiff is the appellant in this appeal which arises out of a suit on a mortgage for a sum of Rs. 14,000 executed in favour of the plaintiff by defendants 1 and 2, their mother Syed Mitheen Bivi on her own behalf and as guardian of defendants 3 and 4 her then minor children. The defence to the suit was that as defendants 3 and 4 were minors on the date of the mortgage their shares in the properties would not be bound.

2. The learned Subordinate Judge has accepted that contention and passed a decree in favour of the plaintiff only with regard to the shares of defendants 1 and 2 ignoring the fact that in respect of the share of Mithen Bivi who was dead at the time of the suit, the mortgagee will be entitled to get a decree. The facts of the case may shortly be stated thus: One Kouse Muhmmad was a partner in a trading business with his three brothers. At the time of the partition of the family properties between Kouse Muhammad and his partners it was found that certain sums were due from the partnership to Aminal Bivi and Sheik Mansoor Tharaganar. The partnership became dissolved only in 1934 by the death of Kouse Muhammad. After his death defendants 1 and 2 continued the partnership along with others and carried on the business as common trade.

3. The mortgage in question, Ex. A-1, dated 14-9-1935 was for a sum of Rs. 14,000 the details of consideration of which were Rs. 10048 due to Aminal Bivi, Rs. 3500 due to Sheik Mansoor Tharaganar and Rs. 452 received in cash. Kouse Muhammad was liable to pay these debts. According to the learned Subordinate Judge even though the items of consideration for Ex. A.1 went in discharge of debt due by the father still according to the decision in ‘Imambandi v. Mutsaddi’, 1918 PC 11 (AIR V 5) (A), the minors' shares in the properties will not be liable.

4. It is argued by the learned counsel for the appellant that it is not open to a Muhammadan minor to disclaim the debts incurred by his fathen while taking the assets left over by him and on the principles enunciated in Section 65 of the Contract Act and Section 41 of the Specific Relief Act the minor has to pay back the amounts if he should retain his father's properties.

5. In — ‘Rang Ilahi v. Mahbub Ilahi’, 1926 Lah 170 (AIR V 13) (A1), the matter has been discussed & there are observations to the effect that in setting aside a mortgage executed by a Muhammadan mother on behalf of her minor son the court had discretionary power under Section 41 of the Specific Relief Act to make it a condition that the minors should refund the amount by which their estate and themselves were benefited. This decision has been followed by Madhavan Nair, J. in — ‘Abdul Majid Sahib v. Ramiza Bivi Sahiba’, 1931 Mad 468 (AIR V 18) (B), where the learned Judge has discussed a few English cases as well.

6. If, therefore, we are satisfied that the mortgage was executed for the purpose of discharging the debts due by their father then the shares of the minor sons will be bound. It is urged by Mr. K.V Srinivasa Iyer for Deft. 3 “that there are recitals in Ex. A-1 which would show that though the father had incurred debts they were all taken over by defendants 1 and 2 and in reality at the time of Ex. A.1, the debts were those of the brothers and not of the father.

7. The document does not specifically say that defendants 1 and 2 took over the liability. All that is stated therein, is that the father incurred debts during the conduct of the business and that business had been continued as ‘pudu vybaram’ or new business by the major sons joining with the other partners.

8. It is difficult for us to say that if at the inception the debts were those of their father, the mere fact that after the father's death the major sons undertook the liability would detract it from the fact that the debts were those of the father unless it is shown that there was a novation and the creditors gave up the liability against the father's assets and looked up for payment only against the sons. There is absolutely no such evidence in this case to show that Aminal Bivi and Sheik Mansoor Tharaganar had given up their rights against the estate of Kouse Muhammad for recovering their dues.

9. What happened was on the death of Kouse Muhammad his sons continued the partnership business. It may be that they also undertook personal liability but that would not detract from the fact of the liability of the father. We are, therefore, of opinion that the debts which were sought to be paid by the execution of Ex. A.1 were binding on the estate of Kouse Muhammad.

10. It is then contended by Mr. Srinivasa Iyer that the plaintiff should show that even if the debts were those of the father they were not barred on the date of Ex. A.1 when the mother and the brothers executed the mortgage. We see from Ex. A.13 which is page 3 from Ex. A.12 the ledger account of Aminal Bivi and Ex. A.14, page 2 of Ex. A.12 the ledger page of Sheik Mansoor that these two persons are shown as creditors on 1-1-1933, that is, before the death of Kouse Muhammad.

11. There is also a recital in Ex. B. 16 entry at page 3 in the ledger of defendants' father for 1931 that effect in Kouse Muhammad's own handwriting. Therefore if on 1-1-1933 Kouse Muhammad had acknowledged in Ex. A.12 the two sums as due to the two individuals concerned, on the date of Ex. A.1 which is only two years and nine months thereafter the debts would not become barred and to put it in another way without defendants 1 and 2 entering into the transaction if the mother alone had executed the mortgage in respect of the minors' share to discharge the debts of the father as existing on 1-1-1933, it cannot be held that at the time of Ex. A.1 the debts had become barred.

12. We are, therefore, of opinion that on the date of Ex. A.1 the debts were not barred. Prom that it follows, that on the authorities cited above the shares of defendants 3 and 4 will also be bound by the mortgage.

13. It is then contended by Mr. Srinivasa Iyer that the plaintiff should have recourse to the shares of the major executants before taking steps to realise the amounts from defendants 3 and 4. We see some justice in this argument. In modification of the decree of the lower court there will be a decree in favour of the plaintiff for the amount decreed by the lower court as against the shares of defendants 3 and 4 as well but a direction will be added in the final decree that the shares of defendants 1 and 2 in the mortgaged properties should be exhausted before those of defendants 3 & 4 are proceeded against. The appellant will be entitled to his costs in this appeal. The memorandum of objections is not pressed and it is accordingly dismissed. No costs.

V.R.B

14. Decree modified.