1. This appeal must succeed.
2. The respondent, Kalka Prasad, brought the suit out of which this appeal hag arisen on foot of a mortgage bond, dated the 20th June 1904, for sale of a certain property which admittedly belonged to one Tika. The parties to this suit ware a large number of people and the relationship among them is described in the pedigree to be found at page 7 of the printed record. The plaintiff's case was that the entire family of the defendants was a joint one and three persona, namely, Misra, Jaijai Ram and their mother Mt. Ganeshi executed a mortgage on behalf of the entire family. The pedigree will show that Mt. Ganeshi had five sons one of whom was Tika. The appellants before this Court are two song of Tika and a son of one of these.
3. The suit was defended by the appellants alone and it was contended that they were not liable. It appears that, in the Court of the first instance the plaintiff said that although he had brought a suit against so many defendants he would be content to have a decree for the sale of Tika's share alone and the decree should be against the sons and grandsons of Tika.
4. The learned Judge of the lower Appellate Court has found that Tika was separate from his brothers and mother. He was living away from the family house and at the house of his father-in-law. It has also been found that at the date of the mortgage there was a money-decree against the estate of Tika and his share of the property had been attached. By the mortgage in suit, the three executants recited that they were owners and persons in possession of the fifth share of Tika in the family property, and as that share had been attached in execution of a decree, the sale of the property would injure them (the executants). With these recitals they executed the mortgage-bond.
5. It has been found that a sum exceeding the consideration money, namely, a sum of Rs. 527 was paid by the mortgagee towards the satisfaction of the decree. The Court of first instance said in its judgment that the mortgage had been executed by the de facto guardians of the sons of Tika and, therefore, it was binding on the appellants. The learned District Judge did not hold that the mortgagors were the de facto guardians of the sons of Tika but he thought that Section 68 of the Contract Act might be brought into play and that would be sufficient to affirm the decree of the Court of the first instance which was in favour of the plaintiff.
6. In this Court it has been urged that the executants of the mortgage were nobody and the mortgage could not operate to bind Tika's share or his descendants. It has further been urged that Section 68 of the Contract Act has no bearing on the case and if it was a question of supplying necessities to the minors, a suit on that footing would be barred by three years of limitation.
7. We are of opinion that Section 68 of the Contract Act has no application to the facts of this case. As for the mortgage, we find that the mortgagors never purported to act on behalf of the minor sons of Tika. Indeed they totally ignored the existence of these children and executed the mortgage as if they were the sole owners of the said property. The principle of the ruling in Balwant Singh v. Rockwell Clancy (1912) 34 All. 296 decided by the Privy Council and of the case of Nandan Prasad v. Abdul Aziz A.I.R. 1923 All. 581 applies to the facts of the case. The mortgage could not be enforced against either Tika's share of the property or against his descendants.
8. We allow the appeal, set aside the decree of the Courts below and dismiss the suit of the respondent, Kalka Prasad, with costs to the appellants throughout. Costs in this Court will include counsel's fees on the higher scale.