The de facto guardian cannot bind the minor with a personal debt unless it falls under the category of acts arising from the wants of the infant, as per the principles of Muhammadan Law.

Wadsworth, J.

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 defendants 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. Mutsaddi (1918) 35 M.L.J. 422 : L.R. 45 IndAp 73 : I.L.R. 45 Cal. 878 . 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.

4. The learned Subordinate Judge relies on the decision of Beasley, C.J., in K. Venkatarayudu v. A. Khasim Saheb (1935) M.W.N. 943 where the learned Chief Justice held that the mother of a Muhammadan minor could bind the minor by executing a promissory note in renewal of one executed by the deceased father of the minor, for the reason that this was the proper way of meeting the emergency arising when a suit was threatened on the original bond. The correctness of this decision is doubted by Sir Dinshaw Mulla in his "Muhammadan Law", 11th Edition, page 268. The learned Chief Justice does not quote any authority in support of his decision and though he refers to the fact that the Privy Council in Mata Din v. Ahmed Ali (1912) 23 M.L.J. 6 : L.R. 39 IndAp 49 : I.L.R. 34 All. 213 left open the question of a de facto guardians power of sale for necessity, his attention does not appear to have been drawn to Imambandis easel, which subsequently decided that no such power could be validly exercised over the immovable property of a Muhammadan minor.

5. Now the judgment of the Privy Council in Imambandis casei contains a very elaborate consideration of the authorities on the powers of a Muhammadan guardian or person acting as such. Their Lordships point out that an unauthorised person who happens to have charge of a Muhammadan minor can bind the minor only by acts falling within the second of the three categories enumerated in the Hedaya, namely:

Acts arising from the wants of an infant, such as buying or selling for him on occasions of need, or hiring a nurse for him or the like.

6. Though the question of the de facto guardians powers of borrowing was not actually before their Lordships for decision the whole question of the powers of guardians was considered and it must, I think, betaken as settled that the de facto guardian cannot bind the mi