1. In this case the plaintiff sued, as the assignee of a deed of mortgage, to recover the debt from the defendants, the mortgagors, and the mortgaged property. The assignor was a widow, acting as the natural guardian of her minor son.
2. The District Judge has held the assignment invalid, for three reasons: (1) because the assignment had not been sanctioned by the District Court under Section 18 of the Minors' Act XX of 18G4' Section 18.-Every person to whom a certificate shall have been granted under the provisions of this Act may exercise the same powers in the management of the estate as might have been exercised by the proprietor if not a minor, and may collect and pay all just claims, debts, and liabilities due to or by the estate of the minor. But no Much person shall have power to sell, alienate, mortgage, or otherwise cucumber any immoveable property, or to grant a lease thereof for any period exceeding five years without the sanction of the Civil Court previously obtained.'; (2) because the leave of the Court was not obtained under Section 462' Section 462.-No next friend or guardian for the suit shall, without the leave of the Court, enter into any agreement or compromise on behalf of a minor, with reference to the suit in which he acts as next friend or guardian. Any such agreement or compromise entered into without the leave of the Court shall be voidable against all parties other than the minor.' of Act X of 1877 to the compromise by which the decree was satisfied; and (3) because the sale of the mortgage-deed was without adequate consideration. The first reason is bad, because the widow was a da facto manager under the Hindu law who had not applied for any certificate under the Minors' Act, and Section 18 of the Act applies only to persons to whom a certificate has been granted under the Act. See Bai Amrit v. Bai Manik 12 Bom. H.C. R, 79, A.C.J. and Earn Chundar Chuckerbutty v. Brojonath Mozumdar I.L.R., 4 Cal. 929. The second reason is also bad, because, even assuming that Section 462 of the Code of Civil Procedure applies to the compromise of a decree, the circumstance that the compromise was voidable would affect only the consideration for the assignment of the mortgage by reducing its amount.
3. As to the third reason, it is argued that such an objection ought not to have been taken, inasmuch as the transaction was proved. In ordinary cases, no doubt, it is the rule that where an assignee sues on his assignment and proves it, an adverse party cannot take the objection that there was no consideration. See Kachu Bayaji v. Kachoba Vithoba 10 Bom. H.C. R 491 and Tukaram v. Bahirav Yadavrav Keskar Printed Judgments for 1888, p. 7. In this case, however, the circumstances., are peculiar. There is on the record no admission of the assignment by the assignor. The mortgage-deed, moreover, is assigned by a widow, acting as the natural guardian of a minor, and a great part of the consideration has admittedly failed, the compromise of the decree which formed a part of the consideration not having been certified to the Court. It might be that the minor in a suit by his next friend or by a guardian appointed under Act XX of 1864 might dispute the assignment. The defendants, in order to protect themselves, have the right to call on the plaintiff to prove the assignment; and a Court ought, in the interests of justice, to see that they are so protected. When the assignor is an adult, that can of course be done by his own admission recorded in the suit. Here, however, the assignment is on behalf of a minor, and the person, acting as his guardian, has not admitted it, and it might be that even her admission would not be binding on him, since he is not a party to the suit. It is necessary, therefore, that the point shall be so tried and determined as to bind the minor, and to do this it is essential that he be made a party to the suit.
4. We, therefore, reverse the decrees of the lower Courts and remand the case for the minor represented by a guardian for the suit to be joined as a defendant and for the point as to the legality of the assignment to be determined as between him and the plaintiff, and thereafter for the determination of the suit on the merits as between the plaintiff and the present defendant. Costs to be provided for in the new decree.