MUSSAMAT BUKSHAN AND ANOTHER Vs. MUSSAMAT MALDAIKOOERI AND OTHERS
LAWS(CAL)-1869-8-30
HIGH COURT OF CALCUTTA
Decided on August 25,1869

MUSSAMAT BUKSHAN AND ANOTHER Appellant
VERSUS
MUSSAMAT MALDAIKOOERI AND OTHERS Respondents

JUDGEMENT

- (1.) The plaintiffs, who are Mahomedan women, sue to set aside a sale, and for the recovery of their two-anna share in Mauza Shahpore, sold during their infancy by their brother, Syud Bahadur, Hossein, who assumed to act as their guardian, to the defendants, who were the mortgagees. The Munsiff, Baboo Balai Chand, said that according to Mahomedan law be could not find that a brother, without being appointed guardian by some competent authority, had any power to sell any portion of the immoveable property of his ward. He also found that there was no legal necessity for the sale. Ha thought that the debts, for the payment of which the money was applied, might have been paid off out of the income of the property without the sale of any portion of the plaintiff's estate; and accordingly he declared the sale invalid, and decreed possession to the plaintiffs.
(2.) The Subordinate Judge of Bhaugulpore, Moulvie Waheedooddeen, reversed this decision. He says, that Syud Bahadur Hossein, as guardian of his sisters and brother, Altof Hossein, sold six annas out of fourteen annas of the Mouza belonging to himself, his brother, and sisters, for Rs. 5,560, out of which he deducted Rs. 3,564 to pay off the zuripeshgi, and Rs. 1,926 for satisfying the dues of other mahajans; that this was done in good faith, to pay off old debts; that it was not done fraudulently; that it was good management to redeem the mortgage and pay off debts bearing large rates of interest; and that only illegal acts of a guardian are cancelled under the Mahomedan law. He says, that the plaintiffs' allegation that the debts could have been paid off out of the income of the estate, which was Rs. 2,000 a year, did not deserve attention, because the estate was involved in debt from the time of Mussamut Dulhin, the ancestress of the plaintiffs. He also disregards the plaintiffs' contention, that Syud Hossein was not their guardian under the Mahomedan law. He says, that the mother cannot be guardian, and a brother is quite competent to be a guardian. He reversed the Sudder Ameen's decision, and dismissed the plaintiffs' suit.
(3.) From that decision the plaintiffs appeal. They contend, first that a brother is not a guardian by Mahomedan law, and that supposing he could act as guardian, the circumstances of the present case are not such as would have justified a guardian in selling an infant's property.;


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