1. This appeal raises the question whether in the circumstances of this case a mortgage, which was made by the mother and grandmother of the respondent in their personal capacity in favour of the appellant, is binding on the respondent. It appears that one Bhagwanji was possessed of property. He was ill and died on 8th of May 1927. His property was ancestral in his hands and, if he had no male child, he could bequeath the property in any way he liked. One day before his death, he executed a will which was duly registered, by which he said that his wife was pregnant and that he had his wife and mother to support. He further said that, if a son was born to him, he would be the owner of the entire property and his wife and mother would be entitled to maintenance in certain cases. He added that if no male child was born, the property would go to his wife and mother.
2. On 13th of May 1927, Bhagwanji's wife and mother executed a mortgage deed in favour of the appellant for a sum of Rs. 2,000/- in consideration of a sum of Rs. 325/- paid in cash and three hundis alleged to have been executed by Bhagwanji prior to his death. The defendant No. 1, the respondent before us, was born on 24th of July 1927. Thereupon, the plaintiff served the respondent's mother and grandmother with a notice calling on them to execute a fresh mortgage as the guardians of the respondent. They having declined to do so, the plaintiff brought the suit out of which this appeal has arisen to obtain primarily a declaration that the mortgage executed by the respondent's mother and grandmother was binding on him. In the alternative the plaintiff asked for a decree for Rs. 1,270 on foot of one of the hundis alleged to have been executed by the respondent's father. The suit succeeded in its entirety in the Court of first instance, but on appeal by the defendant the learned Subordinate Judge dismissed the suit so far as it asked for the first relief, but he gave the plaintiff a decree for Rs. 1270/- as due on one of the hundis.
3. In this Court it has been contended that the mortgage itself was binding on the respondent and that we should make a declaration to that effect. The argument which has been advanced before us is that between the death of Bhagwanji which happened on 8th May 1927 and the birth of the respondent on 24th of July 1927 the executants of the mortgage were the absolute owners of the property, that they represented the estate and that, therefore, the mortage is binding on the defendant. As was stated in Nandan Prasad v. Abdul Aziz A.I.R 1923 All 581, it is an elementary principle of law that A cannot bind B by executing a mortgage of B's property. This principle is supported by the decision of their Lordships of the Privy Council in Balwant Singh v. Maharaf Singh  34 All 296. Indeed, this principle is as sound as any principle of law can be. The question then remains whether the mortgagors were the absolute owners of the property when they made the transfer. If that was so, they had every right to make the transfer. We however find it extremely difficult to hold that they were absolute owners of the property even temporarily.
4. If, as has been conceded before us, the property was ancestral in the hands of Bhagwanji, the son as soon as he was conceived took an interest in the property and deprived Bhagwanji of any right to make a will against the interest of the son to be born. This was held in Deo Narain Singh v. Ganga Singh A.I.R. 1915 All 65. Again, if we consider the will, the will gave the property to the mother and wife of the testator only provisionally, that is to say, in case no son was born to the testator. In either view the wife and mother of Bhagwanji never possessed the property as owners at the date of the execution of the bond in suit. That being the case, it must follow that the mortgage as a mortgage is not binding on the respondent. The learned Counsel for the appellant relied on the decision of this Court, namely, Tara Kiran v. Harkishen Das : AIR1928All251 . That was an exceptional case and the facts were entirely different. The mortgage there had been executed with the consent of the father and it was found that the father had executed a deed of gift in favour of his wife to enable her to raise money as he himself was in jail. As we have said, the case was an entirely exceptional case and was decided on grounds of equity. No question like the one that we have to answer here really arose for decision in that case.
5. It has been urged that the debts which were paid off by the executants were all binding on the respondent and that the sum of Rs. 325 paid in cash was borrowed to meet the funeral expenses of Bhagwanji. That may be so, but the principle still remains that a person, who is not the owner of the property, cannot transfer it simply because he has the good intention of paying off the owner's debts. We see no reason to differ from the conclusion of the Court below, and we therefore dismiss the appeal with costs, including counsel's fees in this Court on the higher scale.