Hayath Bihimashaheba vs Syahsa Meya

Upon the facts found by the Courts below the Plaintiff is clearly entitled to a decree though it may be not for the whole amount claimed. The

parties are Muhammadans. The facts found are that the Plaintiff and Defendant are sister and brother; that the Plaintiff''s husband on the occasion

of their marriage, Plaintiff being then a minor, sent to the Plaintiff''s father money and other property to the value of Rs. 938-1-3 for the benefit of

the Plaintiff; that the father entered the same in his accounts to the credit of the Plaintiff; that, on the father''s death, the Defendant, his son, entered

the same to the credit of the Plaintiff; that there was a partition between the Defendant and the Plaintiff during the minority of the latter in 1891; that

at that time, it was ascertained that the Plaintiff''s husband, Rosha Miah, was indebted to the estate in the sum of Rs. 1,724-4-8 and there was due

to him a sum of Rs. 482-6-0, so the net debt due by him was Rs. 1,241-14-8. But the first Defendant with the consent, as it is found, of the

Plaintiff agreed to Rosha Miah setting off against this Rs. 1,241-14-8 the sum of Rs. 938-1-3 which was due by the estate to the Plaintiff herself

and thus the balance of debt due by him was reduced to Rs. 303-13-5 which was treated as a portion of the assets of the estate and allotted to the

Plaintiff as part of her share in the estate.

The present suit of the Plaintiff is to recover from her brother, the Defendant, the sum of Rs. 938-1-3 due to her from the estate notwithstanding

the arrangement made during her minority with her consent by which her husband was allowed to set off this amount against a debt due by him to

the estate. Both the Courts below have dismissed the suit, holding that the Plaintiff''s remedy, if any, is against her husband not against the

Defendant.

In our opinion this view is erroneous. Though Rosha Miah may have been the guardian of the Plaintiff during her minority yet it was clearly

beyond the scope of his authority as guardian to set off a debt due to her from the estate against a debt due by himself to the estate; and the

Defendant, therefore, cannot rely on this transaction between him and Rosha Miah as binding on the Plaintiff, and in our opinion it makes no

difference that the Plaintiff while a minor assented thereto. The transaction was really in the nature of a contract and the fact that the minor was

privy to it cannot bind her.

The Plaintiff is therefore entitled to recover the debt due to her from the estate of her father, but a portion of that estate has come to her hands in

the partition and that portion must be charged with so much of the debt she now seeks to recover as bears to that debt the same proportion as the

portion of the estate allotted to her in the partition bears to the portion of the estate taken by the Defendant.

But as the Defendant''s action in allowing the set off in favour of Rosha Miah was not warranted, he ought to be chargeable with the amount

allowed to be set off or so much of it as could have been recovered from Rosha Miah; and therefore the Rs. 938-1-3 or so much thereof as could

have been recovered must be added to the property allotted to the Defendant at the time of partition for the purpose of determining the proportion

of the estate in the hands of the Plaintiff and the Defendant respectively.

Before, therefore, determining this appeal we remit the following issues to the District Judge: (1) Whether having regard to the financial condition

of Rosha Miah, the whole or any part of the sum of Rs. 938-1-3 was irrecoverable; and (2) what was the value of the property allotted to the

Plaintiff and the Defendant respectively at the time of partition. Fresh evidence on both sides may be taken.