JUDGMENT

Page, C J - This appeal is dismissed. The suit out of which the appeal arises was brought by the appellant Bank to enforce a mortgage in its favour executed, by respondent 1, respondent 2, her daughter, and by respondent 1 purporting to act as the guardian and on behalf of the respondents 3 to 6, her minor children. Respondent 7 is impleaded as a puisne mortgagee. The sole question to be determined in the appeal is whether the interest of the minor respondents 3 to 6 in the property subject to the mortgage is bound by the mortgage.

2. The trial Court held that it was not. In any opinion it is plain that the decision of the trial Court was correct, and that the suit as against these respondents fails both on the law and the facts. In para. 2 of the plaint it is alleged that

defendant 1 who is the mother and natural guardian of defendants 3, 4, 5 and 6 acted on behalf of her minor children in creating the mortgage, which was effected foe legal family necessities and for the welfare of the minors.

3. Now, it is not contended, and in my opinion, there is no ground for supposing, that under Burmese Customary Law a mother is recognised as the lawful guardian of the property of her minor children, and as in the present case respondent 1 has not been appointed the guardian of respondents 3 to 6 under the Guardians and Wards Act she is not the de jure guardian of their property. It is urged however that as under the Hindu and under the Mohamedan Law de faeto guardians are recognized as possessing authority in certain circumstances to alienate or otherwise dispose of the property of minors, in like manner a de facto guardian of a minor under Burmese Customary Law can dispose of the property of the minor for legal necessity or for the benefit of the minor. In my opinion under Burmese Customary Law no power is given to a de facto guardian of a minor to dispose of the immoveable proper by of the minor.

4. In Ranja Khan v. Ma Chit Special Second Appeal No. 563 of 1930 this question was considered by Carr, J., and in course of the judgment his Lordship observed:

I know of no provision in the Buddhist law which gives any one authority to deal, as guardian, with the property of a minor, and it follows therefore that in the case of a Buddhist the only person who can, as guardian, deal with that property is a guardian who has been appointed by the Court. In that view Maung Obit Yon had no authority whatever to execute the conveyance in question, and therefore that conveyance could have no effect whatever. In other words it was void in so far as it purported to affect the property of the minors: see also A.R.V. Chettyar Firm v. Maung Hla Gyi 1928 Rang. 199, Maung Thin Maung v. Ma Saw Shin 1933 Rang. 83 and C.T.V.E. Vyravan Chettyar v. Ma Saw Mwe 1933 Rang. 403.

5. It is of interesb that Baguley, J., in Maung Thin Maung v. Ma Saw Shin 1933 Rang. 83 came to the same conclusion on this matter as Carr, J., reached without having had his attention drawn to the decision of Carr J., to which reference has been made. In Trevelyan's Law relating to Minors, (Bdn. 6, at p. 167), the learned aubhor stated that

the law applicable to persons other than Hindus and Mahomedans does not permit guardians, other than those appointed by the Court, or having power given to them by the instrument appointing them, to sell or charge the immoveable property to their wards.

6. In this connection the observations of the Judicial Committee in Mata Din v. Ahmed Ali (1912) 34 All. 213 and Imambandi v. Mustaddi 1918 P.C. 11 are in point. In Mata Din v. Ahmed Ali (1912) 34 All. 213, Lord Eobson, who delivered the judgment of the Board, observed:

It is urged on behalf of the appellant that the elder brothers were de facto guardians of the respondent, and, as such, were entitled to sell his property, provided that the sale was in order to pay his debts and was therefore necessary in his interest. It is difficult to see how the situation of an unauthorized guardian is bettered by de