1. This is a defendants' appeal arising out of a suit for sale on the basis of a mortgage-deed dated 18th June 1918, executed by Jwala Prasad for himself and as guardian of his minor sons and also by his adult son, Beni Prasad. The mortgage, deed was to raise money in order to save an ancestral property from sale which had been put up at auction on account of a mortgage decree on the basis of a previous mortgage-deed executed by Jwala Prasad. On the face of it the mortgage-deed of 1918 was executed in order to pay off an antecedent debt of Jwala Prasad. The property mortgaged is admittedly the joint family property of Jwala Prasad. It is therefore quite clear that in the absence of any proof that the previous debt of Jwala Prasad had been tainted with immorality the transaction of 1918 would be binding on the sons and grandsons of Jwala Prasad even if they had not joined in the transaotion.
2. A suit was brought on the basis of the mortgage-deed against Jwala Prasad and his sons and grandsons among whom was Tribeni Prasad, one of the sons of Jwala Prasad who is the father of Lalla. Lalla also was impleaded as one of the defendants and the plaintiff proposed that Lalla's unole, Gur Prasad, who like Lal-la's father, Tribeni, had attained majority, should be appointed as guardian ad litem. The Court issued notice to Gur Prasad as to whether he would consent to act as guardian. Apparently the summons for the suit was also issued at the same time, which was somewhat irregular. The report of the process-server was that Gur Prasad and the other defendants were inside the house and he had accordingly affixed the summons on the door of the house. The Subordinate Judge, without examining the report carefully, acoepted the servioa as sufficient not only as against the defendants to the suit but also as against the proposed guardian. The suit was beard but no one appeared to contest it as presumably there was no defence to the suit. The claim was decreed ex parte against all the defendants. The form of the decree is however open to question. After the preliminary decree notice was again issued to the defendants of the preparation of the final decree. On this occasion Gur Prasad appeared and stated that he had had no knowledge of the proceedings and he would not act as the guardian of Lalla. He also made an attempt to have the decree against him set aside on the ground that he had no knowledge of the suit, but that attempt failed. A final decree was passed. First Appeal No. 433 of 1930 is an appeal from the final decree in the mortgage suit filed by the defendants. This was followed later on by a personal decree under Order 34, Rule 6. F.A. 433 of 1930 is an appeal from this last mentioned decree arising out of a mortgage suit filed by the defendants including Lalla, who has appealed through his nominated guardian Gur Prasad.
3. First Appeal No. 28 of 1929 arises out of a suit brought by Lalla for a declaration that inasmuch as he had not been properly represented through a guardian duly appointed in the mortgage suit, the mortgage decree is not binding upon him. We propose to deal with the decree under Order 34, Rule 6 as against the defendants other than Lalla in the first instance. The form of the decree is that a decree under Order 34, Rule 6 be prepared for the unrealised portion of the mortgage debt with costs against all these defendants but that Tribeni Prasad, Gur Prasad and Har Prasad would not be liable to be arrested under this decree. The decree does not in specific terms say that the personal and separate properties of Tribeni Prasad, Gur Prasad and Har Prasad would be exempt. No doubt the mortgage debt was of the year 1918 and was binding OQ the whole family and the amount could be realised by the sale of the entire joint family property. The Imere fact that later on in 1920 there was a separation would not exempt the joint property from the liability to pay this jdabt of the father when no provision was made at the time of the partition to pay off this debt: Bankey Lai v. Durga Pra. sad : AIR1931All512 . But it is equally clear that although the joint property can be followed the creditor is not entitled to proceed against the personal and separate properties of the three sons of Jwala Prasad which have not come to them as a result of the partition. The sons were minors at the time, and although they were liable to pay the debt of their father out of the family estate, their persons and separate properties were exempt. It has been urged on behalf of the defendants that there was in fact no personal covenant to pay the mortgage debt. This contention cannot ba accepted because the mortgage-deed clearly states:
We covenant that we shall pay up the principal amount in five yei.rs but the principal amount shall not be paid within two years.
And then goes on to say:
If we the exeoutants fail to pay interest, & the property would be sold.
4. There was therefore clearly a covenant to pay. We accordingly allow this appeal in part and modifying the decree of the Court below order that a decree under Order 34, Rule 6, be passed against Jwala Prasad personally and that the personal and separate properties of Tribeni Prasad, Gur Prasad and Har Prasad shall be exempt from the decree but that the said decree shall be executable against the an-cestral properties which were originally joint and which now are in the hands of Tribeni Prasad, Gur Prasad and Har Prasad. As the appeal has substantially failed we direct that the appellants shall pay half the costs of the respondents and shall bear their own co3ts. As regards the appeal of the minor Lalla (P.A. 28 of 1929) the position is that no proper consent of Gur Prasad had been taken for his appointment as guardian. In the first place, the positions of Tribeni Prasad and Gur Prasad were identical as both were minors at the time of the mortgage and Jwala Prasad had executed the deed as the guardian of both. There was no reason why Gur Prasad should have been appointed the guardian of the minor Lalla in preference to Lalla's own father. Furthermore, under Order 32, Rule 4, it was necessary to see first that the father or any other person, the mother, with whom the minor was living, should be appointed as guardian. We may also point out that on 1st September 1926, on which date the Court ordered Gur Prasad to be appointed as the guardian of Lalla, the amendment to Order 32, Rule 4 made by this Court in the form of an addition as Sub-rule 4(A)(3) had already come into force. It had been gazetted in July of that year. This rule is imperative and under it refusal to aocept notice shall be presumed to be refusal to act. It is therefore clear that when the report of the process-server was that Gar Prasad was inside the house and did not come out, the Court should not have treated this as acceptance of the notice by the guardian. It is also equally clear that no good ground was shown why the father or the mother of the minor should not be appointed guardian and an uncle who had an interest adverse to the minor to the same extent as the father, Tribeni Prasad, in casa it be said that being inominal executants they could not defend the claim, should be appointed. We may also in this connection refer to the case of Phul Eunwar v. Beicasi Singh : AIR1930All609 . It is therefore obvious that there never was a proper appointment of any guardian of the minor.
5. Even if there had been a mere irregularity in the appointment of a guardian it would have to be shown that the minor had not been prejudiced by such irregularity. No doubt, prima facie, it seems that there was no defence to the suit and that tbe minor is bound by the antecedent debt of his grand father. Nevertheless when the counsel for the minor's rrothsr insists that his client should have an opportunity to show that the debt is not binding upon him we think that it would be only fair and just to give him such a chance. There are two ways open to this Court to do so. The first is to grant the declaration asked for ani to allow the previous mortgage suit to be restored to its original number on the file and to be disposed of according to law, and the second is to give the minor tbe same chance to resist the claim in the present suit aa he would have if the mortgage suit were restored. We think it more convenient to adopt the second course. We accordingly send down the following issue to the Court below for determination under Order 41, Rule 25:
Whether the mortgage debt under the deed dated 18lh June 1918 executed by Jwala Prasad was of such a na.ture as to be binding on the joiBt interest of Lalla?
6. The parties will be at liberty to produce additional evidence on the issue. The finding is to be returned within three months of this date. On receipt of the finding the usual ten days will be allowed for objections.