JUDGMENT
1. The question involved in the suit out of which this appeal arises, was whether the property in dispute was the self acquired property of one Julfat, father of the plaintiff, or whether it belonged to the family of which Julfat was a member.
2. The Court of first instance tame to the conclusion upon the evidence that the property was acquired by Julfat alone. The learned Subordinate Judge on appeal tame to a different conclusion and accordingly gave a decree to the plaintiff in respect of only 1-12th share of the property.
3. The plaintiffs have appealed to this Court. The learned Subordinate Judge has found that the consideration for the kobala in favour of Julfat consisted of money due under a mortgage-bond to the family and a sum of Rs. 40 which was paid on behalf of the family to the vendor, The learned Subordinate Judge, therefore, comes to a finding that the consideration was paid by the family. He further goes on to consider certain other documents which contain some statements made by one Sarmanulla who is said to have been the de facto guardian of the plaintiffs when they were minors. He says that the plaintiffs must be bound by the statements made therein and further-on says: “in all there document, the owner-ship of the plaintiffs and defendants has been admitted,” Then be comes to the following finding “in these circumstances, I find that the jote was acquired with joint funds and was treated as such by plaintiffs and defendants. That being so the plaintiff have only 1.12th share in it.”
4. Now, a de facto guardian under the Muhammadan Law has no power to bind the interest of the minor by his statements or to affect his interest in the property. The statements made by such a person may be taken into consideration as any other evidence. But the learned Subordinate Judge says that the plaintiffs must be bound by the statements made in the petition. Although, therefore, the learned Judge has come to the conclusion that the consideration for the kobala was supplied by the family, it cannot be said that he had not taken into consideration the other documents referred to above in arriving at the conclusion that the property was acquired with joint funds and treated as such by the plaintiffs and defendants.
5. That being so, the case must go back to the lower Appellate Court in order that the Judge may come to a fresh finding on the point without treating the statements made by the de facto guardian as binding on the plaintiffs, and dispose of the appeal according to law.
6. Costs will abide the result.