Judgement Appeal from a decree of the Judicial Commissioners Court (August 7, 1907) affirming a decree of the District Judge of Lucknow (March 9, 1907), who had affirmed a decree of the Subordinate Judge (May 28, 1906). The suit was brought under the circumstances stated in their Lordships judgment to redeem a one-quarter share of a mortgage on the village Kabirpur dated December 2, 1885. The appellant was in possession of the mortgage premises under a sale deed dated June 15, 1889, at which date the plaintiff-respondent was a minor. The question decided was whether the respondent was bound by the sale deed. The Courts in India agreed that the respondent was not bound thereby, and consequently had a right to redeem one-quarter of the mortgage premises. Amir Haider, the testator in the case, died in 1887. He had mortgaged a 15 annas share in mouza Kabirpur to the appellant by a deed dated December 2, 1885; and by a deed dated August 7, 1886, in favour of the same creditor, mortgaged a 4 annas share in mouza Karora. Under the terms of the deeds the mortgagee took possession and realized his interest from the profits, and made over the surplus, if any, to the mortgagor. The will was in the following terms—" In respect of taluqa Gauria the following conditions will be observed—My four grandsons, i.e. Majid Husain, Ashraf Husain, Muhammad Ali, and Ahmad Ali [who is the present respondent] will be the owners and possessors of the taluqa in equal shares after me and will manage it in union. The sanad of the taluqa shall be in the name of my eldest grandson, Majid Husain. After him in the name of every eldest in order of succession and the same order will continue in the family. After deducting the lambardari dues and proper and necessary expenses (which will be incurred in consultation of the four grandsons) the total profits and other entire incomes of mal and sewai will be divided equally. After him in the name of every eldest in order of succession and the same order will continue in the family. After deducting the lambardari dues and proper and necessary expenses (which will be incurred in consultation of the four grandsons) the total profits and other entire incomes of mal and sewai will be divided equally. If the other grandsons make a request to the holder of the sanad for the partition, then it will be incumbent on him to divide (the property) in equal shares in spite of the sanad." After a devise of the village Dhakwa, the incumbrance on which was to be discharged by the said grandsons, to the testators daughter, the will proceeded in paragraph 3 as follows " Besides the property specified and detailed,’ above, my four grandsons will be owners, in equal shares, of the property which is mine or which I may or will acquire." Then follow provisions for various expenses to be borne in future, and the will concludes in paragraph 9 as follows "The burden of the whole debt which may be found due from me after my death will be upon my entire property moveable and immoveable, excepting the village Dhakwa, and my four grandsons will be responsible for its liquidation." By a deed executed on June 15, 1889, by the major grandsons, of whom one, namely, Ashraf Husain, signed for the minor respondent as well as himself, they sold to the appellant the village Kabirpur and put him in possession as purchaser. The respondent came of age in 1893, and in 1905 sued to redeem the mortgage of December 2, 1885, to the extent of one-fourth of the property comprised therein. The three Courts in India decreed in his favour. They considered that the grandsons were not appointed by the will either its executors or the respondents guardians; that it was not shewn that the sale was beneficial to the minor or necessary; and that the respondent was not bound thereby. Kenworthy Brown, and A. P. Sen, for the appellant, con tended that under all .the circumstances of the case the executants of the deed of June 15, 1889, had power both under the will and under Mahomedan law to sell the village of Kabirpur and pass a valid title thereto. Kenworthy Brown, and A. P. Sen, for the appellant, con tended that under all .the circumstances of the case the executants of the deed of June 15, 1889, had power both under the will and under Mahomedan law to sell the village of Kabirpur and pass a valid title thereto. On a true construction of the will the testator intended the respondents brothers to act as its executors and to administer his estate. It was further the intention to appoint the major brothers as the respondents guardians to act for him and bind him during his minority in all matters relating to the estate. They had acted as his guardians de facto until majority. Reference was made to the Probate Act (V. of 1881), ss. 3 and 7, and s. 90, as amended by Act VI. of 1889 ; to Ameer Alis Mahomedan Law, vol. 1, p. 550, and vol. 2, 470 (ed. 1894); Baillies Mahomedan Law, p. 632 ; In the Good of Russell ([ 1892] P. 380.); In the Goods of India Chandra Singh, Sarasati Dossee v. Administrator-General of Bengal (( 1896) I. L. R. 23 Calc. 580, 588) ; Hari Saran Moitra v. Bhubaneswari Debi (( 1888) L. R. 15 Ind. Ap. 195, 202, 215), a case with regard to a Hindu widows guardianship of her adopted son, though not authorized by the Court to act on his behalf. As to Mahomedan law and the appellants contention thereunder, see Mafazzal Hossain v. Basid Sheikh (( 1906)1. L. R. 34 Calc. 36.) ; Ramcharan Sanyal v. Anakul Chandra Acharjia (( 1906) I. L. R. 34 Calc. 65.); Majidan v. Ram Narain (( 1903) I. L. R. 26 Allah. 22.); Hasan All v. Mehdi Husain (( 1877) I. L. R. 1 Allah. 533.); Hamir Singh v. Zakia (( 1875) 1. L. R. 1 Allah. 57.) ; Harbai v. Hiraji Byramji Shanja. (( 1895) I. L. R. 20 Bomb. 116.) [LORD MACNAGHTEN referred to Baba v. Shrivappa (( 1895) I. L. R. 20 Bomb. 199.) and Sita Ram v. Amir Begam. (( 1886) I. L. R. 8 Allah. 338.)] The respondents brothers having taken the testators property had power to sell it to pay his debts, and under the will and the Mahomedan law they had power to guard the minors interests and to bind him by the same contract by which they bound themselves. (( 1886) I. L. R. 8 Allah. 338.)] The respondents brothers having taken the testators property had power to sell it to pay his debts, and under the will and the Mahomedan law they had power to guard the minors interests and to bind him by the same contract by which they bound themselves. Reference was further made to Abdul Khadir v. Chidambaram Chettiyar. (( 1908) I. L. R. 32 Madr. 276.) With regard to limitation the respondent attained his majority in 1892, and the suit was not brought till 1895 and was therefore barred by limitation. De Gruyther, K.C., and Dube, for the respondent, contended that the sale of June 15, 1889, was void ab initio so far as his share in the property sold was concerned. The Mahomedan law does not allow an unofficial and unauthorized guardian to act as the respondents brothers have acted in this case see Bukshan v. Maldai Kooeri. (( 1869) 3 Beng. L. R. 423.) In cases of urgency and of clear advantage to the minor an exception might be made and the rule not be enforced, but here the evidence shewed that the sale was unnecessary and injurious to the respondents interests. There is a consensus of all the High Courts on this subject, and thre are no special circumstances in this case which entitle the vendee to ask that the transaction should be allowed to stand. Reference was made to Moyna Bibi v. Banha Behari (( 1902) I. L. R. 29 Calc. 473.); Bhubnath Dey v. Ahmed Hossain (( 1885) I. L. R. 11 Calc. 417.); Nizamuddin Shah v. Ananda Prasad (( 1896) I. L. R. 18 Allah. 373.); Mafazzal Hossain v. Basid Sheikh (I. L. R. 34 Calc. 36, 40.); Rutton v. Dhoomee Khan (( 1868) 3 Agra, 21.) ; Mazidan v. Ramnarain (( 1896) I. L. R. 26 Allah. 22.), where previous decisions are referred to and discussed; Pathummabi v. Vittil Ummachabi (( 1902) I. L. R. 26 Madr. 734.); Durgazi Row v. Fakeer Sahib (( 1906) I. L. R. 30 Madr. 197.); Baba v. Shrivappa (1) and Amba Shankar v. Ganga Singh. (( 1905) 9 Oudh Cases, 97, 99.) As to limitation the mortgage could not be redeemed till 1895, and the mortgagee was entitled to possession till that date, and the respondents suit was brought within twelve years therefrom. 197.); Baba v. Shrivappa (1) and Amba Shankar v. Ganga Singh. (( 1905) 9 Oudh Cases, 97, 99.) As to limitation the mortgage could not be redeemed till 1895, and the mortgagee was entitled to possession till that date, and the respondents suit was brought within twelve years therefrom. Kenworthy Brown in reply, distinguished the cases in 18 Allah. 372 and 26 Madr. 734. The judgment of their Lordships was delivered by LORD ROBSON. In this case the appellant has been unsuccessful, first before the Subordinate Judge at Lucknow, next before the District Judge of Lucknow, and lastly before the Court of the Judicial Commissioner of Oudh. The Court of the Judicial Commissioner granted a certificate for an appeal to their Lordships Board on the ground that the case raised a question of law as to whether the transfer of a Mahomedan minors property by a person who was not his natural guardian should be upheld, if made to discharge a debt payable by the minor. The facts of the case are these— Sheikh Ahmad Ali, the respondent, was the grandson of Amir Haider, who, in his lifetime, was possessed of two villages, Kabirpur and Karora. Amir Haider mortgaged a 15 annas share in Kabirpur to the defendant-appellant on December 2, 1885, and on August 7, 1886, he executed another mortgage in favour of the same creditor of a 4 annas share in Karora. The mortgages provided that the mortgagee should take (and he duly took) immediate possession of the mortgaged property for the purpose of realizing the agreed interests out of the annual profits, making over the surplus, if any, to the mortgagor. The terms of the said mortgages were for ten and seven years respectively. Amir Haider died on August 12, 1887, leaving a will dated December 7 1886, by which he bequeathed his entire estate to his four grandsons equally. The plaintiff was about twelve years old when his grandfather died. Afterwards, on June 15, 1889, the three elder grandsons, on their own behalf, and one of them, Ashraf Husain, purporting to act also as the guardian of the plaintiff, sold the village at Kabirpur to the appellant in consideration of the discharge by him of the debts secured thereon and on Karora, together with certain other smaller sums, making up a total of Rs.18,500. The effect of this sale, if held good, was that the plaintiff lost his interest altogether in the village of Kabirpur, w7hich was the larger and more important property, while the smaller village Karora was thenceforth free of the mortgage. The plaintiff on attaining his majority in 1892 or 1893 made no attempt to impeach this transaction, though he knew of it, but in September, 1905, he tendered to the defendant the amount of mortgage money necessary to redeem his share of the mortgage property, and on the defendant refusing to accept it, he brought this action for redemption. He contends that the sale deed of June 15, 1889, is void, as against him, on the ground that his brothers had no authority under the grandfathers will to act as executors or to sell his share, and that Ashraf Husain, who purported to represent him in that transaction as his guardian, was not entitled so to act. The appellant contends that the four grandsons were entitled to act as executors under Amir Haiders will, but their Lordships agree with the Courts below in finding that there is nothing in the will justifying that view. The testator left the whole of his property (with certain unimportant exceptions) to his four grandsons in equal shares, and subject to equal obligations in respect of his debts and expenses, but he did not expressly appoint any executors of his will or guardians of his minor grandchildren. It was argued that an express appointment was not necessary if the testator had clearly shewn by his will an intention to entrust its administration to particular individuals, but on a fair construction of this will no such intention can be gathered from it. He left his property to his grandsons so that each share thereof vested at once in the devisee, subject to the obligations attaching thereto, and there appears to be no necessity for any act of an executor to complete the operation of the will. No doubt the testator contemplated a partition by the grandsons themselves of the property devised to them, and in that case it would be necessary for his grandson, if still an infant, to have a guardian, but there is nothing whatever to shew that he intended all or any one of the brothers to act in that capacity. No doubt the testator contemplated a partition by the grandsons themselves of the property devised to them, and in that case it would be necessary for his grandson, if still an infant, to have a guardian, but there is nothing whatever to shew that he intended all or any one of the brothers to act in that capacity. So far as his intention is concerned, it may well have been that if, and when, the necessity for a guardian arose, the selection should be made by the Court, The family were Mahomedans and were governed by the Mahomedan law relating to guardianship. According to that law, in the absence of duly appointed testamentary guardians the care of Ahmad Alis property would devolve first on the father and his executor, next on the paternal grandfather and his executor, and failing these, the right of nomination of a guardian would " rest in the ruling power and its administration" Macnaghtens Principles of Mahomedan Law, 5th ed., p. 304. The brothers had, therefore, no right whatever to act except under the authority of an appointment by the Court. Both they and the appellant seem to have had that fact in their minds when they executed the deed of June 15, 1889, effecting the sale of Ahmad Alis share in the land, for they stipulated that if Ahmad Ali at any time brought a claim on the ground of minority, and any dispute thereby arose in respect of Mata Dins possession, the three elder brothers should be answerable for the same together with costs. 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 describing him as a "de facto" guardian. He may, by his de facto guardianship, assume important responsibilities in relation to the minors property, but he cannot thereby clothe himself with legal power to sell it. It is difficult to see how the situation of an unauthorized guardian is bettered by describing him as a "de facto" guardian. He may, by his de facto guardianship, assume important responsibilities in relation to the minors property, but he cannot thereby clothe himself with legal power to sell it. There has been much argument in this case in the Courts below, and before their Lordships, as to whether, according to Mahomedan law, a sale by a de facto guardian, if made of necessity, or for the payment of an ancestral debt affecting the minors property, and if beneficial to the minor, is altogether void or merely voidable. It is not necessary to decide that question in this case. To begin with, the appellant has not succeeded in shewing that the disputed sale of 1889, although made for the payment of an ancestral debt, was made of necessity, or was beneficial to the minor. On the contrary, the Courts below have all found on the evidence that it was unnecessary and cannot be said to have been beneficial so far as Ahmad Ali was concerned. It is next found as a fact (and their Lordships see no sufficient reason to find otherwise), that the plaintiff on coming of age never acquiesced in the transaction which he now seeks to impeach, and that there was nothing in his conduct on which the defendants plea of estoppel could be justified against him. Unless therefore, the plaintiffs remedy is barred by the Indian Limitation Act XV. of 1877, he is now entitled to the relief prayed for, as modified by the judgment of the Court of the Judicial Commissioner. As to the plea of limitation, the appellant-defendant placed reliance on arts 44 and 144 of the Indian Limitation Act, 1877. Art. 44 prescribes a period of three years within which a ward who has attained majority may set aside a sale made by his guardian, the time running from the date of the wards majority. This provision has no application to the present case, for the sale here was effected, not by a guardian, but by a wholly unauthorized person. Art. 144 deals with immovable property not otherwise specially provided for by the Act, and prescribe a period of twelve years from the time when the possession of the defendant becomes adverse to the plaintiff. This provision has no application to the present case, for the sale here was effected, not by a guardian, but by a wholly unauthorized person. Art. 144 deals with immovable property not otherwise specially provided for by the Act, and prescribe a period of twelve years from the time when the possession of the defendant becomes adverse to the plaintiff. In this case, the appellant was entitled under his mortgage to fall possession of Kabirpur and receipt of its rents and profits for ten years from December 2, 1885. The respondent came of age on some date in 1892 or 1893. He was then certainly entitled to treat (and by his subsequent tender of the mortgage money it is shewn that he has in fact treated) the mortgage as subsisting, so far as he was concerned. Under these circumstances, the possession by Mata Din of Kabirpur did not become adverse to the respondent until December 2, 1895, and as this action was begun in 1905 it was well within the period of limitation. Their Lordships will, therefore, humbly advise His Majesty that this appeal should be dismissed with costs.