JUDGMENT G. Kumara Pillai, J. 1. This appeal arises out of a suit brought by a Mahomedan for a declaration that a sale deed executed by his mother, brothers and sisters at a time when he was a minor, and in the execution of which his mother had participated in her individual capacity and on his behalf as his guardian, was not binding on him and his share of the properties comprised in it and for partition and recovery of his share in the said properties on that basis. The plaint properties are situated in Kattakambal village which was in the former Cochin State, and the suit was instituted on 8-3-1947 (4-8-1122) in the District Court of Trichur before the Integration of the States of Travancore and Cochin, and was decreed by the Additional District Judge of the said District Court on the 24th September 1953, after the integration of the two States. These properties belonged to the plaintiff's father, Arakkal Ahamed Moidunny, referred to hereinafter as Moidunny, who died in Kumbom 1106 leaving properties both in the Malabar District in the former Madras Presidency and in the Cochin State. The plaint properties were all the properties which he had in the Cochin State at the time of his death. Moidunny himself belonged to Punayurkulam Amsom, a village close to Kattakambal in which the plaint properties are situated, but which was at that time in Ponnanl Taluk in the Malabar District. He had two wives, one of whom had been divorced by him before his death. Plaintiff and defendants 1 and 2 are his sons by the other wife, Pathumma, and defendants 4 and 5 are his daughters by her. By the divorced wife he had only one son, defendant 3. At the time of Moidunny's death plaintiff and defendant 3 were minors and all the other children were majors. On 8-3-1935 (5th Meenom 1110) defendants 1, 2, 4 and 5 and their mother, Pathumma, who is now dead, executed a sale deed, Ext. II, in favour of defendant 6 for the plaint properties. This sale deed purports to have been executed not only on behalf of defendants 1, 2, 4 and 5 and Pathumma but on behalf of Moidunny's minor sons also, namely, defendant 3 and the plaintiff. II, in favour of defendant 6 for the plaint properties. This sale deed purports to have been executed not only on behalf of defendants 1, 2, 4 and 5 and Pathumma but on behalf of Moidunny's minor sons also, namely, defendant 3 and the plaintiff. Pathumma, the mother of the plaintiff and defendants 1, 2, 4 and 5, participated in its execution both in her individual capacity and on behalf of the plaintiff as his guardian. On behalf of defendant 3, Moidunny's minor son by the divorced wife, defendant 1, his eldest son, executed the document as guardian. Plaintiff's case is that his mother, Pathumma, was not his legal guardian and was not competent to execute Ext. II on his behalf, that it was also not supported by consideration and necessity binding on him, and that it is therefore invalid and not binding on him and his share of the plaint properties and he is entitled to recover possession of his share, namely, 14/80, of the plaint properties which are, as stated already, all the properties left by Moidunny in the Cochin State, with past and future mesne profits. 2. The suit was contested by defendant 6 who has taken the sale, Ext. II. Defendant 3 filed a written statement supporting the plaintiff's case and claiming partition of his share, namely, 14/80, on the ground that defendant 1 was not his legal guardian and was not competent to execute Ext. II on his behalf-Defendants 7 and 8 are two persons who have taken from defendant 6 an agreement for sale of the plaint properties to them. They as well as defendant 1 have filed written statements supporting the contentions of defendant 6. Defendant 6 contended that although Moidunny and the members of his family were Mahomedans and governed by the Mahomedan law in matters of inheritance, since they had settled down among other communities and were having social intercourse and dealings with them, they had adopted the custom obtaining in those communities regarding the management of properties and guardianship of minors, that the plaintiff was under the defacto guardianship of his mother and she was his de jure guardian also, that she was therefore competent to execute Ext. II on his behalf also as his guardian and he was not entitled to question the validity of the document on the ground that his legal guardian had not joined in its execution, that Moidunny himself had executed two hypothecation bonds charging the plaint properties and those properties had also been attached in execution of two decrees passed against him, that Ext. II was executed at a time when the creditors were pressing for payment and for the purpose of discharging those debts and certain arrears of tax, that it was therefore, in any event, valid and binding upon the plaintiff also, that even in the event of Ext. II being found to be not binding on the plaintiff because his legal guardian had not joined in its execution, plaintiff could claim his share only on his paying to defendant 6 his proportionate share of the liabilities of the deceased Moidunny discharged by her under the terms of that document, and that he was also not entitled to ask for mesne profits until this amount was repaid to her. 3. Except as regards her right to get a reimbursement of the amount paid by her for discharging Moidunny's liabilities and the plaintiff's claim for mesne profits, the lower court repelled the contentions of defendant 6, and, upholding the plaintiff's case that his mother was not his legal guardian and was not competent to execute Ext. II on his behalf also, passed a preliminary decree for partition in the following terms: "Ext. II is not binding on the plaintiff's share regarding his 14/80 share. The plaint schedule properties are therefore liable to be partitioned and from this the plaintiff is entitled to 14/80 share. The plaintiff is liable to contribute and give to the 6th defendant 14/80 share of the total consideration amount under Ext. II as it stood on the date of execution and for this the 6th defendant will have a charge on the plaintiff's share in the plaint schedule properties. The partition will be effected only after the plaintiff deposits his share in Ext. II. A commission will be applied for to effect the partition. The plaintiff is entitled to his costs from the 6th defendant. The 6th defendant and the other contesting defendants will suffer their costs. For final decree 24-11-53". Defendant 6 has filed this appeal against the above decree. II. A commission will be applied for to effect the partition. The plaintiff is entitled to his costs from the 6th defendant. The 6th defendant and the other contesting defendants will suffer their costs. For final decree 24-11-53". Defendant 6 has filed this appeal against the above decree. Her contentions in this court were two-fold, one was that in the matter of guardianship the parties are governed not by the strict rules of Mahomedan Law but by custom and usage and the mother was therefore the legal guardian of her minor son and was competent to execute Ext. II on behalf of the plaintiff, and the other was that even if the mother was not the legal guardian and was not competent to execute Ext. II on behalf of the plaintiff the document would still be valid as it was executed by such of the heirs as had become majors for discharging the debts of the deceased owner of the properties and was therefore a bona fide act of administration binding upon all the heirs of the owner. 4. Under the Mahomedan Law, only the father, the executor appointed by the father's will, the fathers's father and the executor appointed by the will of the father's father are entitled to be guardians of the property of a minor, and in their absence the duty of appointing a guardian for the protection and preservation of the minor's property falls on the court. Excepting the father and the father's father no other relation, not even the mother, brother or uncle, is entitled to the guardianship of the minor's property as of right. (See Mulla's Mahomedan Law, 1955 edition, sections 359 and 360). The father will be the guardian during his lifetime and after his death the guardian will be the executor appointed by his will, if he has appointed such an executor, or the grandfather if no such executor is appointed. In the absence of these three the executor, if any, appointed by the will of the father's father will be the guardian. In the absence of these three the executor, if any, appointed by the will of the father's father will be the guardian. This rule of Mahomedan Law has been recognised by the Privy Counsel in Imambondi v. Haji Mutsaddi ( AIR 1918 PC 11 ) which case has been followed by the Travancore - Cochin High Court in Mohammed Haneefa v Thajudeen ( 1950 KLT 128 ) At page 16 of the report in AIR 1918 PC 11 it is said: "As already observed in the absence of the father under the Sunni Law the guardianship vests in his executor. If the father dies without appointing an executor and his father is alive the guardianship of his minor children devolves on their grandfather. Should he also be dead, and have left an executor, it vests in him. In default of these de jure guardians the duty of appointing a guardian for the protection and preservation of the infant's property devolves on the Judge as representative of the Sovereign. No one else has any right or power to intermeddle with the property of a minor except for certain specified purposes the nature of which is clearly defined". With the respect to the mother's rights in particular, Their Lordships have said at page 15 of the report in that case : "It is perfectly clear that under the Mahomedan Law the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian; the father alone, or, if he be dead, his executor (under the Sunni Law) is the legal guardian. The mother has no larger powers to deal with her minor child's property than any outsider or non relative who happens to have charge for the time being of the infant. The term 'de facto guardian" that has been applied to these persons is misleading; it connotes the idea that people in charge of a child are by virtue of that fact invested with certain powers over the infant's property. This idea is erroneous, and the judgment of the Board in Mata Din v. Ahamad Ali (ILR 34 Allahabad 213) clearly indicated it". This idea is erroneous, and the judgment of the Board in Mata Din v. Ahamad Ali (ILR 34 Allahabad 213) clearly indicated it". The same decision lays down that "under the Mahomedan Law, a person who is in charge of the person or property of a minor without being his legal guardian, and who may therefore be conveniently called a de facto guardian has no power to convey to another any right or interest in immovable property which the transferee can enforce against the infant, nor can such transferee, if let into possession of the property, under such unauthorised transfer, resist an action in ejectment on behalf of the infant as a trespasser". These observations of the Privy Council have been accepted and followed by the Supreme Court in Mohd Amin v Vakil Ahmad ( AIR 1952 SC 358 ). According to the Privy Council decision, what the person in charge of the person and property of the minor can do in the absence of a de jure guardian is only to pledge the minor's movables for his imperative necessities. Beyond this limited power, the mother, even though she may have custody of the person of the minor, has no power to deal with his property. 5. These rules of Mahomedan Law being now beyond dispute on account of the decisions referred to above, the attempt of defendant 6 was to surmount them by pleading a custom in derogation of the said rules. The lower court repelled her plea on two grounds, namely, (1) that the plaintiff and the members of his family being Muslims of Malabar to whom the Shriat Act and the Madras Civil Courts Act apply it is not open to defendant 6 to plead that they are governed by custom regarding guardianship against the rules of Mahomedan Law and (2) that the evidence adduced in the case does not prove the custom alleged. The appellant's learned counsel contended that the lower court has gone wrong in both these conclusions. 6. The appellant's learned counsel contended that the lower court has gone wrong in both these conclusions. 6. Section 2 of the Shariat Act reads: "Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, sihar, lian, khula and Mubara'at, maintenance, dower, guardianship, gifts, trust and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)". But the Shariat Act was passed only in 1937 whereas Ext, II was executed in 1935; and the question for decision in this case is what the law regarding guardianship when Ext. II was executed in 1935 and whether under that law the mother was entitled to be the plaintiff's guardian and was competent to alienate properties belonging to him. The Shariat Act can, therefore, be no bar to the plea that in matters relating to guardianship the parties were governed in 1935 by custom contrary to the rule of Mahomedan Law. The very language of section 2 of the Act would indicate that up to its enactment custom or usage in regard to matters specified in that section contrary to the Muslim Personal Law was not considered to be illegal or unenforceable by courts of law, merely because it happened to be opposed to the Muslim Personal Law. The Madras Civil Courts Act, 1873, as it stood before the enactment of the Shariat Act of 1937, provided that rules of decision in matters relating to succession, inheritance, marriage or caste or any religious usage or institution, should be the Mohamedan Law in cases where the parties are Mahomedans or any custom (if such there be) having the force of law and governing the parties or property concerned unless such law or custom has been altered or abolished by legislative enactment. Questions relating to guardianship were not among the questions specified in section 16 of the Madras Civil Courts Act, 1873. Questions relating to guardianship were not among the questions specified in section 16 of the Madras Civil Courts Act, 1873. It was not therefore on account of section 16 of the Madras Civil Courts Act but on account of the principles of justice, equity and good conscience that the rules of Mahomedan Law were being applied in matters relating to the guardianship of Mahomedan minors; and there was nothing opposed to the principles of justice, equity and good conscience in recognising a custom in derogation of the ordinary rules of Mahomedan Law, which did not offend the principles of justice, equity and good conscience and which had been accepted as good law and was being followed by any particular class of Muslims. A custom which recognises the right of the mother to be the guardian of a minor in the absence of his father cannot be said to be opposed to the principles of justice, equity and good conscience and not recognisable by courts of law on that account. It may also be pointed out here that even in respect of matters specified in section 16 of the Madras Civil Courts Act, clause (b) thereof expressly allowed the application of custom having the force of law and governing the parties if such custom had not been altered or abolished by legislative enactment. It is true that the Madras Civil Courts Act, 1873, has been repealed to the extent that it is inconsistent with the Shariat Act. But, the enactment of the Shariat Act and this repeal of the Madras Civil Courts Act can have no retrospective effect so as to bar the consideration of the question whether in matters relating to guardianship any class of Muslims, belonging either to a particular locality or a particular family, was governed by the rules of pure Mohamedan law or by custom in derogation of those rules before the enactment of the Shariat Act, or render invalid any act done on behalf of a minor before the enactment of the said Act by a person who was ', his legal guardian as the law then stood and which was within his powers. A change or amendment of the law or repeal can have no retrospective effect unless the intention of the legislature that it should have such effect is expressed in plain and unambiguous language or is evident by necessary implication. A change or amendment of the law or repeal can have no retrospective effect unless the intention of the legislature that it should have such effect is expressed in plain and unambiguous language or is evident by necessary implication. The lower court was, therefore, wrong in holding that, on account of the Shariat Act and the Madras Civil Courts Act, defendant 6 was barred from contending that before the enactment of the Shariat Act the plaintiff's family was governed by customary law and not by the rules of Mahomedan law in matters relating to guardianship. 7. Although the lower court's view that it was not open to defendant 6 to plead a custom in derogation of the rules of Mahomedan law is unsustainable, its finding that she has not succeeded in proving any such custom is unexceptionable. There are different kinds of customs, such as local customs, family customs, etc; and for the judicial recognition of any of them it is essential that the custom in question must be definite, uniform and invariable. There should be no room for doubt as to its nature, what exactly is the custom, and it should also be clear that the practice enjoined by the custom has been followed in a series of well known instances as to justify the conclusion that it has been accepted at least by the majority of the class of persons concerned as good law. If the practice is not seen to have been uniform and there have been variations or departure from it on not inconsiderable occasions the custom cannot be said to be invariable or to have obtained the general recognition of the class concerned so as to make it acceptable as law binding upon them. It is in the light of these tests that the evidence adduced in the case has to be scanned. 8. One of the primary requirements of a valid custom is that it should be definite. It is essential that the party setting up such a custom should clearly state in his pleadings what exactly is the custom he is pleading, i. e., whether it is a local custom or a family custom, etc., and what its nature is. But, in her writ written statement, defendant 6 has not stated whether the custom she is pleading is a family custom or a local custom and what is its nature. But, in her writ written statement, defendant 6 has not stated whether the custom she is pleading is a family custom or a local custom and what is its nature. The custom was pleaded by her in paragraph 2 of the written statement; and all that she has stated in that paragraph is : "Although the plaintiff and defendants 1 to 5 are Mahomedans and the rules of inheritance followed by them ate in accordance with the Mahomedan law, since they and their deceased father, Moidunny, have been living for a long time in the midst of other communities as a family like them and are having social intercourse with those communities and also conducting themselves as members of a family like the other communities, so far as management of properties and guardianship of minors are concerned they (plaintiff and defendants 1 to 5) have accepted and are following the practices of other communities and the plaintiff is estopped from contending otherwise" -- (Translation) From this statement it is impossible to know whether the case of defendant 6 is that plaintiff is governed in matters relating to guardianship by a local custom binding on all the Mahomedans living in the locality or by a family custom binding on the members of his family alone. It is admitted that in the Ponnanl Taluk of the old Malabar District were the members of the plaintiff's family are living as well as in the former Cochin State in which the plaint property is situated, besides Mahomedans, there are Nairs, Ezhavas, Nambudiris, Tamil Brahmins, Christains, and other communities. There is no knowing from the allegation in paragraph 2 of the written statement the practice of which of these communities has been adopted and followed by the plaintiff's family or the Mahomedans of the locality. It is not in this vague manner that a custom, which has to be definite, uniform and invariable for being judicially recognised, should be pleaded. The omission of defendant 6 to specify in the written statement the custom she is pleading and relying upon is due to the fact that while the plaintiff's mother had participated in the execution of Ext. II as his guardian it was defendant 3's brother (defendant 1) and not his mother who had participated in its execution as defendant 3's guardian. II as his guardian it was defendant 3's brother (defendant 1) and not his mother who had participated in its execution as defendant 3's guardian. Therefore, if defendant 6 pleaded that the custom is for the mother to be the guardian of her minor son there was the risk of Ext. II being held to be not binding on defendant 3 and if she pleaded that the custom is for the elder brother to be the guardian of his minor brother, there was the risk of the document being held to be not binding on the plaintiff. Caught between the horns of this dilemma defendant 6 elected to make a vague allegation in the written statement that in the matter of guardianship the plaintiff's family has accepted the practice of other communities in the locality without specifying which community's practice has been adopted or what that practice is. Ext. II itself furnishes proof positive that there is no invariable or uniform custom of either the mother functioning as guardian or the brother functioning as guardian, for in that document, while it was the plaintiff's mother who acted as his guardian, it was the brother and not the mother who acted as defendant 3's guardian. The other documents having a bearing on the question of guardianship of minors are Exts. I, I(a), I(b), VII, VIII, X, XI, XVII, XVIII, XIX, XX, XXIII, XXIV, XXXI, XXXII, XXXIII, A, E, F and M. In Exts, I, I(a), I(b), VII, VIII, X, XI, XVII, XVIII, XIX, and XX the mother has executed the document as guardian of her minor son. But, of these documents, only Exts. I, I(a), VII, X and XI are documents executed prior to Ext. II, and all the others are documents executed subsequent to Ext. II, and some of them are only just a few months before the suit. In Exts. XVII, XXIII and XXIV the brother has executed the document on behalf of the minor. In Exts. XXIII and XXIV while the brother has joined in the execution as the minor's guardian it is noteworthy that the mother of the minor also is a party to the documents and that she has executed them merely on her own behalf. In Exts. XXXI, XXXII and XXXIII as well as Exts. In Exts. XXIII and XXIV while the brother has joined in the execution as the minor's guardian it is noteworthy that the mother of the minor also is a party to the documents and that she has executed them merely on her own behalf. In Exts. XXXI, XXXII and XXXIII as well as Exts. A, E and F the mother has executed the document as the guardian of one of the minors and the brother has executed the document as guardian of another. The minors in these documents are plaintiff and defendant 3. In Ext. M the father's father has executed the document as the minor's guardian while his mother was alive. It is clear from these documents that neither the plaintiff's family nor the Mohamedan community at the place where the plaintiff's family was living had recognised a uniform practice of having the mother as the minor's guardian in the absence of his father. 9. Dws. 1 to 6 are the witnesses who have given oral evidence about the alleged custom. dw. 1 is a Division Inspector of Schools and a relative of the plaintiff. Exts. I series are documents executed by members of his family, and he says that in the locality in which his family and the plaintiff's family have settled down there are Christians, and Hindus and the custom among the Mohamedans of the locality regarding guardianship is that the mother is the guardian in the absence of the father and the brother in the absence of the mother. No doubt, Exts. I, I (a) and I (b) tend to corroborate his evidence, but several of the documents referred to in the previous paragraph would show that even when the mother was alive either the brother or the grand father was executing documents as guardian. Further, it has also not been shown to us that the practice either among the Christians or the Hindus of the locality was for the mother to be the guardian in the absence of the father. dw. 1 himself belongs to the Cochin State while the plaintiff's family belongs to the Ponnanl Taluk in the old Malabar District although their villages are not far away from each other. dw. 2 is an attestor to Exts. II and III and proves Exts. II, III, IV and V. He is dw. dw. 1 himself belongs to the Cochin State while the plaintiff's family belongs to the Ponnanl Taluk in the old Malabar District although their villages are not far away from each other. dw. 2 is an attestor to Exts. II and III and proves Exts. II, III, IV and V. He is dw. 1's brother-in-law and says that the custom among Mohamedans in the locality is for the mother to be the guardian in the absence of the father and for any other convenient person to be the guardian in the absence of the mother. This is an improvement on the evidence of dw. 1 and would enable anyone to execute documents as the legal guardian of a Mohamedan minor . in the absence of his parents. He is also interested in the defence, for it was he who brought about Ext. II transaction. dw. 3 is a Christian and the kariasthan of the husband of defendant 6, and according to him, this information that in the absence, of the father the mother is the guardian among the Mohamedans of the locality and in the absence of the mother the brother, is derived from what document writers have told him. dw. 4 is a Mohamedan and an attestor to the receipt for payment of the consideration under Ext. II, He as well as. Dw. 5, who is defendant 1, and dw. 6 who is the husband of the defendant 6, swear that the custom among the Mohamedans of the locality is for the mother to be the guardian in the absence of.the father and the brother to be the guardian in the absence of the mother. According to dw. 6, his knowledge of the custom is derived from Mr. Kunhunni Raja. But he has not examined Mr. Kunhunni Raja as a witness. In the light of the documentary evidence discussed in the preceding paragraph and in the circumstances referred to in this paragraph the evidence of these witnesses regarding guardianship appears to be thoroughly unreliable and cannot be accepted as proving a definite and uniform custom having the force of law. We, therefore, hold that there is no custom as alleged by defendant 6 and that the plaintiff's mother was not competent to execute Ext. II on his behalf as his guardian. 10. The lower court has found that Ext. We, therefore, hold that there is no custom as alleged by defendant 6 and that the plaintiff's mother was not competent to execute Ext. II on his behalf as his guardian. 10. The lower court has found that Ext. II is supported by consideration and that the consideration thereof was received and utilised for discharging debts due from the deceased Moidunny, and while setting aside the sale deed so far as his share is concerned it has directed the plaintiff to pay to defendant 6 proportionate amount of the sale consideration she has paid under Ext. II and allowed him to recover possession of his share of the properties only on payment of such amount. This finding and direction have not been objected to by the plaintiff, and therefore, it is contended by the appellant's counsel that, although, viewed as a pure alienation, Ext. II is liable to be set aside in as much as it was executed on behalf of the plaintiff by his mother who was not competent to act as his guardian, the document has to be taken as an act of administration of the estate of the deceased Moidunny by his adult heirs, and should be given effect to as binding upon the estate of the deceased and all his heirs including minors. Reliance is placed in support of this contention of the observations of Krishna-swamy Aiyar, C. J. in Ahammathu Kunju Musaliar v Pathumma Knnju (1945 T. L. R. 491). Following the decision of Benson and Bhashyam Aiyangar in Pathummabi v. Vittill Ummachabi (ILR 26 Madras 734) and the statement in Mulla's Mohamedan Law, that in the absence of an executor or administrator the persons entitled to administer the estate are the heirs of the deceased, Krishnaswamy Aiyar, C. J., has held in 1945 T. L. R. 491 that, in the case of an alienation by one heir who is a major on behalf of another heir who is a minor, where the main purpose of the transaction is the discharging of the debts of the deceased, the alienation has to be viewed as an act of administration by an heir of the deceased and has to be upheld. Defendant 6 had not taken a specific contention in the written statement that Ext. Defendant 6 had not taken a specific contention in the written statement that Ext. II was or has to be taken as an act of administration by such of the heirs of Moidunny as were majors at the time of its execution and that it should be upheld as such, and this contention was advanced only at the time of the final arguments in the lower court. Regarding this matter the learned Additional District Judge has said in his judgment: "But in this particular case no question of any justification under administration was ever dreamt of when the parties joined issues and went to trial". Nevertheless, after saying this, he has considered the contention on its merits in paragraph 9 of his judgment and repelled the same. In this court in answer to this contention the plaintiff's counsel urged that the plaintiff had not sufficient opportunity in the lower court to meet it and prove that Ext. II was not a bona fide and reasonable act of administration, and also that the law has not been correctly laid down in 1945 TLR 491. On the strength of the materials available in the case he also tried to show that Ext. II was not a bona fide and reasonable act of administration and that it was brought into existence by defendant who had misappropriated a good part of the estate of the deceased Moidunny and also its income and defrauded the other heirs. 11. As has been stated already, the decision of Krishnaswamy Aiyer, C. J., in 1945 T. L. R. 491 is based primarily upon the statement in Mulla's Mohamedan Law that, in the absence of an executor or administrator, the persons entitled to administer, the estate are the heirs of the deceased and the decision of Benson and Bhashyam Aiyengar, JJ., in ILR 26 Madras 734. The statement in Mulla's Mohamedan Law referred to above occurres in a passage which reads as follows : "The person primarily entitled to administer the estate of a deceased Mohamedan, that is, to apply it in the manner set forth in the section, is the executor appointed under his will. If the deceased left no will, the person entitled to administer his estate would be the person to whom letters of administration are granted. Such a person is called administrator. If the deceased left no will, the person entitled to administer his estate would be the person to whom letters of administration are granted. Such a person is called administrator. The persons primarily entitled to letters of administration are the heirs of the deceased: Indian Succession Act, 1925, section 218. In the absence of an executor or administrator, the persons entitled to administer the estate are the heirs of the deceased". After quoting this passage Krishnaswamy Aiyer, C. J., says in paragraphs 5 to 8 of his judgment that, since the funeral expenses, death-bed charges, wages due for services rendered to the deceased, and his other debts and legacies not exceeding one-third have to be paid in the first instance, and it is only the residue of the estate of the deceased which can be divided among his heirs, it is impossible to suggest that the administration of the estate of a Mohamedan was not contemplated under the Mohamedan Law, and that it is permissible for one heir alone to represent the whole estate and administer it in order to preserve the estate. At page 503 of the report the learned Chief Justice says : "I loathe to set back the clock of time and to leave the estates of Mohamedan deceased to become the prey of as many proceedings for administration as there are fractional heirs. It is contrary to the spirit of the Mohamedan Law to suppose that though the deceased is taken to continue alive after death for the discharge of his debts and certain other liabilities, still his estate is to be dismembered into as many fractions as there are heirs involving a splitting up of rights and of even liabilities (not permitted under the general law) and necessitating different proceedings in administration". At page 500 of the report, suggesting that it is permissible under the Mohamedan law for one heir to administer the estate of the deceased, he has also posed the question : "Is administration a statutory procedure or is the administration of the estate of a deceased person something known to the common law of the land ?" and said: "The estate of a deceased person, as much in the Mohamedan law as in other systems such as the English or the Hindu law, vests in the heir-at-law, and whoever be the heir he is entitled to represent the estate". However, the cases relied upon by the learned Chief Justice at pages 500 and 501 of the report, for the proposition that an heir-at-law can represent the estate even when he is not entitled to the full ownership, are not cases under the Mohamedan law. In I. L. R. 26 Madras 734 also the learned Judges were influenced by the fact that under the Mohamedan law the estate of a deceased person has to be applied for payment of his funeral expenses and debts before the heirs can partition it, and have said : "Under the Mohamedan Law, the estate of a deceased person must be applied to the payment of his funeral expenses and debts, before the heirs can make partition of it. In this respect it is analogous to and in fact stricter than the Hindu Law. The creditors have the right to sue such of the heirs as have taken the estate, 'but they are entitled to have recourse to a single heir only in a case where all the effects are in the hands of that heir' and the reason given is that although any one of them (the heirs) may act as plaintiff in a cause on behalf of the others, yet he cannot act as a defendant on their behalf unless the whole of the effects are in his possession (Hamir Singh v. Musammat Zakia, Devalava v. Bhimaji Dhondo ......). In the present case it isfound and admitted that the mother, the first defendant, who now supports the plaintiff's cause was in sole de facto possession of the entire inheritance and that the sales were mostly made bona fide in discharge of debts due by the deceased husband, which would be binding on all the heirs. It has been held in more cases than one that when a decree is obtained against the widow for debts due from her husband and property is sold to satisfy the decree debt, the sale would bind the other heirs, though they have not been made parties to the suit: Khurshet Bibi v. Keso Vinayek (ILR 12 Bom. 101), Devalava v. Bhimaji Dhondo (ILR 20 Bom. 338), and in Hasan Ali v Medhi Hussain (ILR 1 All. 101), Devalava v. Bhimaji Dhondo (ILR 20 Bom. 338), and in Hasan Ali v Medhi Hussain (ILR 1 All. 533), a sale made by one of the coheirs, who was in possession of the whole estate for the discharge of the debts of the deceased and for other purposes, was upheld even when no decree had been obtained by the creditors in respect of those debts. The soundness of this decision, so far as it upholds a sale made for family purposes other than the discharge of debts due by the deceased, may be open to question under the Mohamedan Law. If the creditor of the deceased can seek his relief against one of several coheirs in a case when all the effects of the deceased are in the hands of that heir, it can make no difference whether the heir meets the demand by a bona fide voluntary sale or the property is brought to sale in execution of a decree obtained against him." 12. The decision in Pathummabi v. Vittal Ummachabi (26 Madras 734) was considered and expressly disapproved by a Full Bench of the Madras High Court in Abdul Majeeth v. Krishnamachariar (AIR 1918 Madras 1049). Abdur Rahim, J., delivering the opinion of the Full Bench in the latter case has said: "The question referred to us is in these words : When one of the coheirs of a deceased Mohamedan, in possession of the whole estate of the deceased or of any part of it, sells property in his possession forming part of the estate for discharging the debts of the deceased, is such sale binding on the other coheirs or creditors of the deceased and, if so, to what extent ? The answer must be in the negative. On the death of a Mohamedan, the inheritance vests in his heirs according to their respective shares, although in the administration of the estate the funeral expenses, debts and legacies mast be paid first, and it is only the residue that is available for distribution among the heirs. It. is not correct to say that the devolution of the estate on the heirs does not take place or is postponed until the funeral expenses and the debts and legacies have been paid. It. is not correct to say that the devolution of the estate on the heirs does not take place or is postponed until the funeral expenses and the debts and legacies have been paid. ........As regards the nature of the tenure of the coheirs, shares, the heirs of a deceased Mohamedan take their shares in severality, their rights being analogous to those of tenants-in-common, and not of members of a joint Hindu family: See Abdul Khader v Chidambamn Chettyar (32 Madras 276). There cannot be the slightest doubt, therefore, upon the principle Mohamedan law and also upon the authorities that one heir has no right to deal with the shares of the other heirs." The learned Judge has thus dealt with 26 Madras 734:-- "The statement in Pathummabi v. Vittal Ummachabi (26 Mad. 734) was purely by way of obiter dictum and with all respect to the learned Judges, they failed to bear in mind that the provision of Mohamedan law," that a decree against one heir in possession of all the effects of the deceased is binding on all if obtained after contest, is part of the processual law of that system and is not based on the ground that single heir, if he happens to be in possession of the estate of deceased, represents the rest of the heirs for the, purpose of administration generally. The ground on which a decree against one of the heirs, in such circumstances, is treated as res judicata is, as stated in the books, that the decree in such case is in law against the deceased and not against the particular heir who is made defendant in the suit. The ground on which a decree against one of the heirs, in such circumstances, is treated as res judicata is, as stated in the books, that the decree in such case is in law against the deceased and not against the particular heir who is made defendant in the suit. In Hedaya the matter is discussed in the chapter relating to the duties of the Kazi and in some other text books, in the chapter dealing with claims, in which chapters the rules of procedure of the Mohamedan system are mostly laid down: In dealing with the question whether where one of the heirs obtains a decree for the recovery of the property of the deceased in possession of a third person more than his share in that property should be made over to him in execution of the decree, it is stated that all the three doctors, that is, Abu Haneefa and his two disciples, agree that the decree enures not only in favour of the heir who actually is the plaintiff but also of the heir who did not join on account of absence from the country, though there is a difference of opinion as to whether the decree holder shall be given possession of more than his share. This is how the principle is enunciated in the Hedaya (Grady, p. 349): for anyone of the heirs of a deceased person stands as litigant on the part of all the others with respect to anything due to, or by the deceased, whether it be debt or substance; since the decree of the kazi, in such case, is in reality either in favour of or against a deceased; and anyone of the heirs may stand as his representative with respect to a decree" The qualifying words 'with respect to such decree', which I have italicised, are a material part of the proposition and, negative, by implication, the suggestion that, apart from a decree of court, a single heir represents the entire estate of the deceased and can deal with the shares of the coheirs without their consent. In other text-books of Mohamedan law, such as Bahrurrai and Alimajullah , the same proposition is laid down under the heading of 'claim'. Nowhere have I found any general statement that, apart from representation in suits, one heir is entitled by his I acts to bind the shares of the others. In other text-books of Mohamedan law, such as Bahrurrai and Alimajullah , the same proposition is laid down under the heading of 'claim'. Nowhere have I found any general statement that, apart from representation in suits, one heir is entitled by his I acts to bind the shares of the others. The dictum to the contrary therefore, in Pathummabi v. Vittal Ummachabi (26 Mad. 734) and the decision in Hasan Ali v Medhi Husain (1 All. 533) seem to be without sufficient authority and inconsistent with clear statements of the law in books of authority". Srinivasa Aiyengar, J., concurring with the opinion of the other two judges in that case (AIR 1918 Madras 1049), has said: "In the absence of any right in one of the heirs to represent the coheirs, one of several coheirs can only deal with his or her interest in the ancestor's property inherited by them. My learned brother has shown that there is nothing in the Mohamedan law giving such a right to one of the coheirs who may happen to be in actual possession of the whole of the ancestor's estate; such possession, it must be remembered, is presumably on behalf of all the coheirs. He is not constituted the representative of the deceased and cannot administer his property even for the limited purpose of paying off his debts. In Khimajmal v. Daim (32 Cal. 296), Lord Davey, referring to a sale by one of the heirs of a Mohamedan for discharging the debt due by the ancestor, said: 'Prima facie his conveyance would pass only his share'." This Full Bench decision concludes the matter so far as Madras is concerned. 13. In 1945 TLR 491 Krishnaswamy Aiyer, C. J., followed 26 Madras 734 in preference to this Full Bench decision because of the view expressed by him at page 500 of the report referred to above and his desire to make applicable the general principles of administration to Mohamedans also in order to prevent the estates of deceased Mohamedans from becoming a prey of as many proceedings for administration as there are fractional heirs. The danger or inconvenience of the estates of Mohamedan deceased becoming the prey of as many proceedings for administration as their fractional shares if the view that it is not permissible for one heir alone to represent all the other heirs and administer the estate, to which the learned Chief Justice has drawn attention in the passage at page 503 of the report in 1945 TLR 491 and extracted in paragraph 11 above, cannot arise after the enactment of the Probate and Administration Act and the Indian Succession Act. Under section 4 of the Probate and Administration Act, 1881 and section 211 of the Indian Succession Act, 1925, all the properties of the deceased will vest in the executor or administrator (i. e., the administrator appointed under the Act) for all purposes; and under section 23 of the Probate and Administration Act and section 218 of the Indian Succession Act it is within the discretion of the court to grant the administration to any one or more of the heirs. There is, therefore no longer any room for apprehension of the danger or inconvenience due to multiplicity of proceedings, and consequently no necessity to introduce a new principle in the system of Mohamedan law in order to suit the altered conditions of present times. 14. So far as the position of the administrator under the Mohamedan law is concerned Mulla says at page 31 of his book : "An executor under the Mohamedan law is called wasi, derived from wasiyyat which means a will. But though the Mohamedan law recognised a wasi, it did not recognise an administrator, there being nothing analogous in that law to 'letters of administration'. A wasi or executor under the Mohamedan law was merely a manager of the estate, and no part of the estate of the deceased vested in him as such. As a manager all that he was entitled to do was to pay the debts and distribute the estate as directed by the will. He had no power to sell or mortgage the property of the deceased, not even for the payment of his debts. The first time this power was conferred upon him was by the Probate and Administration Act, 1881. Under section 4 of that Act, the whole of the property of a Mohamedan testator vested in his executor, and it does so now under sec. The first time this power was conferred upon him was by the Probate and Administration Act, 1881. Under section 4 of that Act, the whole of the property of a Mohamedan testator vested in his executor, and it does so now under sec. 211 of the Indian Succession Act, 1925. The property vests in the executor even if no probate has been obtained. As a result of the vesting of the estate in the executor, he has the power to dispose of the property vested in him in due course of administration, a power which he did not possess before the Probate and Administration Act, 1881. See section 90 of that Act, now section 307 of the Indian Succession Act, 1925." If the Mohamedan law does not recognise an administrator and if even a wasi or executor appointed under that law was only a manager of the estate and had no power to sell or mortgage a property of the deceased, not even for payment of his debts, before the enactment of the Probate and Administration Act, 1881 it would really be introducing a new principle in that law to hold that one or some alone of the numerous heirs of a deceased Mohamedan is competent to administer his estate and execute sale deeds or mortgage deeds binding on all the heirs during the course of such administration. It has been said in many cases, and it is now well settled, that the theory of representation is foreign to Mohamedan law. Mulla says at page 32 of his book. "The theory of representation is not known to Mohamedan law. Under its provisions the estate of a deceased person devolves upon his heirs at the moment of his death. The estate vests immediately in each heir in proportion to the share ordained by Mohamedan law. As the interest of each heir is separate and distinct, one of a number of heirs cannot be treated as representing the others. But heir in possession of assets of an estate can be sued by a creditor of the deceased upon principles discussed in sections 43 and 46 infra, (i. e., each heir is liable for the debts of the deceased to the proportionate extent of his share in the estate, and in same jurisdictions a heir in possession of the whole estate is liable to be sued for the whole debt). There is no intermediate vesting in anyone, such as an executor or administrator, as under the Indian Succession Act". 15. In Manni Gir v. Amar Jati (58 All. 595) it has been observed: "........... .Under the Mohamedan law each heir inherits a separate and defined share in the estate of a deceased Mohamedan. One heir has no right or interest in the share inherited by another heir and can in no sense be said to represent the estate that has devolved on the other heirs. The estate left by a Mohamedan at the time of his death vests immediately in each heir in proportion to the shares ordained by Mohamedan Law. It follows that the interest of each Mohamedan heir is distinct and separate and the principle of representation can have no application to such a case". If each heir has got a separate and definite share and that share vests on nmediately after the death of the deceased, it is difficult to understand how the state of the deceased as a whole can be treated as being vested in one of his heirs lone, which is necessary if one heir is to be the administrator having full and complete powers of alienation. We are therefore, unable to accept the proposition that, under the Mohamedan law, one or some alone of the several heirs of a deceased Mahomedan is or are competent, without any appointment by the court under the Probate and Administration Act of the Indian Succession Act, to function as administrator or administrators having full and complete powers of alienation which would be binding upon the shares of all the heirs. The passage at page 31 of Mulla's book, relied upon by Krishnaswamy Aiyer, C. J., in 1945 TLR 491 and by the respondent's counsel in the arguments in this court, does not say that one heir alone is entitled to administer the estate. What it says is : "The person primarily entitled to administer the estate of a deceased Mohamedan, that i, to apply it in the manner set forth in the section, is the executor appointed under his will. If he deceased left no will, the person entitled to administer his estate would be the person to whom letters of administration are granted. Such a person is called administrator. If he deceased left no will, the person entitled to administer his estate would be the person to whom letters of administration are granted. Such a person is called administrator. The persons primarily entitled to letters of administration are the heirs of the deceased: Indian Succession Act, 1925, section 218. In the absence of an executor or administrator, the persons entitled to administer the estate are the heirs of the deceased." That is to say, all the heirs together are entitled to administer the estate in he absence of an executor or administrator. Since the share of each heir would vest in him immediately after the death of the deceased, it goes without saying hat all the heirs together can deal with the estate in any manner they choose and that they can sell or mortgage any part of it for discharging the debts of the deceased. We do not think that the passage in Mulla's book on Mohamedan Law referred to above means anything more than this. The theory of representation being forein to Mohamedan law, and since each heir has got a separate and distinct share in the estate of the deceased and his share vests in him immediately after the death of the deceased, it necessarily follows that if one of the heirs is a minor at the time of the death of the deceased no alienation made by another person would be binding on his share unless the person making the alienation is his lawful guardian or has been appointed as his guardian by the court. The fact that the alienation made by the person incompetent to make it was for any necessity binding upon the minor or for his benefit is perfectly immaterial in considering the validity of the transaction. In Mohd. Amin v Vakil Ahmad (1952 SC 358) a deed of family settlement to which a Mohamedan minor was a party represented by his brother as de facto guardian was held to be void and not binding on the minor irrespective of the considerations that it benefitted him or the arrangement was followed for a long period. 16. In Mohd. Amin v Vakil Ahmad (1952 SC 358) a deed of family settlement to which a Mohamedan minor was a party represented by his brother as de facto guardian was held to be void and not binding on the minor irrespective of the considerations that it benefitted him or the arrangement was followed for a long period. 16. The appellant's counsel referred to Kadir Meeral Beevi v. Muhamad Koya (1956-1-MLJ 307) as an instance in which the Madras High Court has upheld the validity of an alienation of the father's property by the major sons and mother so far as the monor's share also was concerned. In that case mortgage was executed by the major sons and the mother of the minor for paying off the debts of the deceased father, and the minor, after he same of age, sought to have the mortgage set aside. The learned Judge said in 1956 (1) MLJ 307 : "In Rang Ilahi v Mahbub Ilahi (ILR 7. Lah. 35) the matter has been discussed and there are observations to the effect that in setting aside a mortgage executed by a Mohamedan 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 benefitted. This decision has been followed by Madhavan Nair, J., in Abdul Majid Sahib v Hamza Bivi Sahiba (33 LW 312) where the learned Judge has discussed a few English cases as well. 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". Then they discussed the evidence in the case and came to the conclusion : "We are, therefore, of opinion that the debts which were sought to be paid by the execution of Ext. Al were binding on the estate of Gouse Muhammad"., and said that "on the authorities cited above, the shares of defendants 3 and 4 will also be bound by the mortgage". Al were binding on the estate of Gouse Muhammad"., and said that "on the authorities cited above, the shares of defendants 3 and 4 will also be bound by the mortgage". On the authorities cited and followed by the learned Judges they should have set aside the mortgage so far as the plaintiff's share was concerned directing him to pay his share of the debts which was binding upon the estate of his deceased father and should not have upheld the mortgage itself; for that was what was done in Rang Ilahi v Mahbub Ilahi (ILR 1 Lah. 35) which they purported to follow. Probably because the alienation in question was a mortgage which it was open to the plaintiff to redeem at any time by paying the amount there would not have been much difference in the result if the mortgage was set aside and the plaintiff directed to pay his share of the debt. Although the alienation concerned was upheld in 1956 (1) MLJ 307 , the principle approved by the learned Judges in that case also was that, when some of the heirs alienated the property for discharging the debts of the deceased, the minor has the right to get the alienation set aside so far as his share was concerned on paying his share of the debts to the alienee. 17. Some reference was made by the appellant's counsel to certain cases wherein it had been held that a decree obtained against one alone of the heirs who was in possession of the whole or any part of the estate of the deceased would be binding upon all the heirs. Most of these cases are decisions of the High Court of Calcutta. But, as pointed out by Mulla at pages 36 to 38 of his book (14th Edition) even the Calcutta High Court was held in Abbas Narker v Chairman, District Board (59 Cal. 691) that these decisions would apply only if the heir who his sued was in possession of the estate on behalf of the other heirs and not if he held the estate on his own behalf. It was also held in that case that there is no rule of Mohamedan Law by which an individual heir, as such, may be taken to represent either the estate or the heirs generally. It was also held in that case that there is no rule of Mohamedan Law by which an individual heir, as such, may be taken to represent either the estate or the heirs generally. The view taken by the Bombay High Court at one time was that the decree would be binding on all the heirs only if the heir who was sued was in possession of the whole estate. Even this view was disapproves-in later decisions of the Bombay High Court. The view taken by the Allahabad High Court is summed up as follows in Mulla's Mohamedan Law (14th edition) at page 37 : "According to the rulings of the Allahabad High Court, a decree relative to his debts passed in a continuous or non continuous suit against such heirs only of a deceased Mahomedan debtor as are in possession of the whole or part of his estate, binds each defendant to the extent of his share in the estate, but it does not bind the other heirs who, by reason of absence or any other cause, are out of possession, so as to convey to the purchaser, in execution of such a decree, the interests of such heirs as were not parties to the decree. This is because under Mahomedan Law each heir inherits a separate and defined share and as he has no interest in the share inherited by another heir he cannot be said to represent the estate that has devolved upon the other heirs. But if they sue for a declaration that the sale is not binding on them, and it is proved that the debts have been paid out of the proceeds of the sale, they ought to be put on terms as a matter of equity, and required to pay their proportionate share of the debt before they are granted the declaration sued for". This is also the view followed by the High Court of Nagpur, and so far as Madras is concerned there can be no doubt after the Full Bench decision in Abdul Majeeth v. Krishnamachariyar (AIR 1918 Mad. 1049.) 18. This is also the view followed by the High Court of Nagpur, and so far as Madras is concerned there can be no doubt after the Full Bench decision in Abdul Majeeth v. Krishnamachariyar (AIR 1918 Mad. 1049.) 18. But we are not concerned in this case with the effect of a decree obtained against one of the heirs on the shares of the other heirs and are only concerned with the question whether a voluntary alientation made by one heir both in his individual capacity and on behalf of a minor heir as his guardian would be binding on the minor's share. It has been held by the Full Bench in Abdul Majeeth v. Krishnamachariyar (AIR 1918 Mad. 1049) that even when the adult heir who sells the property is in possession of the whole estate and the sale is for discharging the debt of the deceased it will not be binding upon the coheirs and their shares. In the case of an alienation made by the mother of the minor, who was one of the heirs of the deceased and also the de facto guardian of the minor but not his legal guardian, the Privy Council has held in Imambandi v. Hajir Mutsaddi ( AIR 1918 PC 11 ) that a person in charge of a minor's person and property who is not his legal guardian and who may therefore be called a de facto guardian, has no power to convey to another any right or interest in immovable property which the transferee can enforce against the minor, nor can the transferee, if let into possession, resist an action in ejectment brought on behalf of the minor, and that beyond the limited power to pledge the minor's movables for his imperative necessities the mother or any other de facto guardian has no power to deal with his property. This Privy Council decision has been followed by the Patna High Court in Kharaj Narain v. Hamida Khatoon (1955 Pat. 475) and by the Lahore High Court in Rang Ilahi v. Mahbub Ilahi (ILR 7 Lah. 35). This Privy Council decision has been followed by the Patna High Court in Kharaj Narain v. Hamida Khatoon (1955 Pat. 475) and by the Lahore High Court in Rang Ilahi v. Mahbub Ilahi (ILR 7 Lah. 35). In the Lahore case it was held that it is settled law that a Mohamedan mother has no power to alienate the property of her minor son and the mortgage made by the mother was void ab initio and that in setting aside the mortgage the court had the 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 benefitted. Dealing specifically with the question whether an alienation by elder brothers for discharging the father's debts would be binding on the minor's share Lord Robson has said in Hata Din v Ahmad Ali (I. L. R. 34 All. 213 P. C.) "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 unauthorised 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 minor's property, but he cannot thereby clothe himself with legal power to sell it." The above passage from Hata Din v Ahamed Ali (ILR 34 All. 213 PC) has been quoted with approval in Vasu Pillai v Prabhakaran Nair, ILR 1955 TC 680. In Mohammed Amin v Vakil Ahmad ( AIR 1952 SC 358 ) the Supreme Court also has approved the decision in Imambandl v. Haji Mutsaddi ( AIR 1918 PC 11 ). We would respectfully follow these decisions in preference to 1945 TLR 491. We, therefore, hold that Ext. II, executed by the plaintiff's mother as his guardian at a time when he was a minor, is not binding on him and his share of the plaint properties and that it has to be set aside so far as his share is concerned. 19. We, therefore, hold that Ext. II, executed by the plaintiff's mother as his guardian at a time when he was a minor, is not binding on him and his share of the plaint properties and that it has to be set aside so far as his share is concerned. 19. In the view that we have taken that, without being appointed by the court, it was not competent for any one or some alone of the heirs of a deceased Mohamedan to function as administrator or administrators and execute documents representing all the heirs of the deceased, it is not necessary to consider the question whether the execution of Ext. II was a bona fide and reasonable act of administration even if it can be viewed as a document executed in the course of administration of the estate of the deceased Moidunny. We may, in this connection, also point out that the omission of the defendant to plead this case specifically in the lower court has resulted in the denial of an opportunity to the plaintiff to adduce the necessary evidence to show that the execution of Ext. II was not a bona fide and reasonable act of administration. From the admissions of defendant 1 and dw. 6 and the other evidence in the case it would appear that the deceased Moidunny was worth more than two lakhs of rupees and had about 60 acres of coconut gardens and 40 acres of paddy lands, that after his death about 20 acres of lands have been assigned to defendant 1's wife for clearing debts amounting to Rs. 4489-6-10 (which according to the plaintiff are only bogus debts), and that from the income of the property the debts mentioned in Ext. II could have been easily paid off. About these matters, the extent of the indebtedness of the estate, the available income, and the surplus after expenditures - plaintiff has not been able to adduce detailed evidence because of the defendant's omission to plead that the execution of Ext. II was a bona fide and reasonable act of administration; and without sufficient evidence it will not be proper to go into a question which does not arise on the pleadings and about which the parties had not joined issue at the trial. 20. In the result, the appeal fails and is accordingly dismissed with costs.