Henry Richards, Kt., C.J. and Piggott, J.
1. This appeal arises out of a suit in which the plaintiff sought to set aside a decree obtained in the year 1899 against him and his father. The decree in question was on a mortgage made in the year 1896, admittedly some two years before the birth of. the plaintiff. It is admitted also that at the time of the mortgage the mortgagor had no other son and was in that sense the sole owner of the property mortgaged. When the suit was brought the present plaintiff had been born, and he was made a party to the mortgage suit under the guardianship of his father. A decree was obtained upon foot of the mortgage and the property was sold. Subsequently the father died, and, the proceeds of the sale of the mortgaged property proving insufficient, a further decree was obtained under Section 90 of the Transfer of Property Act and certain other property was sold. In these proceedings the plaintiff's mother was substituted as his guardian for his deceased father. The court of first instance dismissed the plaintiffs suit. The lower appellate court has reversed that decision and remanded the case, holding that the plaintiff ought to have been allowed an opportunity to call evidence to show that his father was a man of immoral livelihood and that the mortgage debt had been incurred for immoral purposes. The present appeal is against this last mentioned order of remand.
2. It seems to us that there can be no question but that the plaintiff in the present suit was a party to the original mortgage suit. It is possible that his father was a person whom the court might under certain circumstances not have appointed guardian. We have, however, to consider, before interfering with the proceedings of the year 1899, whether the irregularity, if such it was, caused any damage to the plaintiff. We have therefore to consider what possible defence could have been set up in the mortgage suit. It is suggested that he might have made the defence that the debt was incurred for immoral purposes. This no doubt would be a defence which the father as guardian might find a difficulty in setting up on behalf of his son. It is now settled law that such a defence cannot be set up where the mortgage was made whilst the mortgagor, was the sole owner. It must be assumed that this was always the law, and indeed it has not been shown to us that it was not the accepted law in the year 1899. We may mention here that the present suit seeks to set aside the decree of 1899, but not the decree under Section 90. We cannot see that the plaintiff has suffered any damage whatever by reason of the fact that he was represented by his father in the litigation of 1899. That the mortgage was not duly executed, failure of consideration and such like were all defences which the father could have set up on behalf of his son. With regard to the decree which was subsequently made under Section 90, it may be pointed out that at that time the plaintiff was represented by his mother, who was undoubtedly able to put forward any possible defence that could be made including, if necessary, the immorality of her husband. For these reasons we think that the appeal must prevail.
3. We accordingly allow the appeal, set aside the order of the court below and restore the decree of the court of first instance with costs in all courts.