1. The facts out of which this appeal arises are as follows:
The property in suit belonged origin ally-to one Sheo Char an. He died leaving a son Sital. Sital had three sons, Debi now dead, Nandan and Sheo Nandan. On the 6th of August 1906 Sital made a Will in favour of his wife, Musammat Somari, of the property in suit and died soon after its execution. On the 16th August 1908 Musammat Somari mortgaged the property in favour of the wife of the plaintiff. This suit was brought by the heirs of the mortgagee to recover the amount then due under the mortgage by sale of the mortgaged property, and it was brought against Musammat Somari alone. In the plaint she is described as the mortgagor and there is no mention of her sons.
3. Subsequently, on the application of Nandan Prasad for himself and as guardian of his minor brother Sheo Nandan, they were brought on the record as defendants and they alone defend the suit. They denied the execution of the deed or that there was consideration. In their written statement they said that Musammat Somari had no legal right to mortgage the house and that she had no claim whatever in it. In the mortgage-deed the Will is recited and Musammat Somari claimed to be in full proprietary possession of the property under the Will and as owner she purports to mortgage the property for a sum of Rs. 250 for the payment of 'miscellaneous debts and other needs.' There is no mention in the deed itself that the money was required for the use of the minors.
4. The mortgage was executed by Musammat Somari claiming to be the sole owner of the property under her husband's Will. The suit also was brought on this basis against Musammat Somari alone. Nandan and Sheo Nandan, the two younger sons of Sital, asked to be joined in the suit on the ground that the property belonged to them and not to their mother. In other words, they claimed a title paramount to that of the mortgagor. Under these circumstances, the Trial Court might well have refused to allow them to be joined or to allow, the title of the mortgagor to be brought into controversy as against third parties in a mortgage suit. This course was, however, not adopted. The Courts below have found that the Will was invalid, and that Musammat Somari had no title to the property. They have, nevertheless, allowed the suit of the ground that Musammat Somari was the de facto guardian of her minor sons and that the transaction was for legal necessity. That Musammat Somari was not the legal guardian of the minors was admitted. The family was a joint family and they had an elder brother Debi Prasad who was the head of the family.
5. On the facts found by the court below, no question of legal necessity ever arose in the case at all. It is elementary law that one person cannot be bound by the act of another unless it is done in representative capacity either as agent or guardian or in some similar capacity. Here Musammat Somari purported to be dealing as of right with property which was her own. It being found that the property was not hers any dealings with it on her part are ipso facto void, and questions as to the motives which induced her to execute the mortgage or what she did with the purchase-money are entirely irrelevant., If any authority is needed for this proposition it may be found in the decision of their Lordships of the Privy Council in the case of Balwant Singh v. Rev. Rockwell Clancy (1) 14 Ind. Cas. 629 : 34 A 296 : 39 I.A. 109 : (1912) M.W.N. 462 : 11 M.L.T. 344 : 9 A.L.J. 509 : 15 C.L.J. 475 : 16 C.W.N. 577 : 23 M.L.J. 18 : 14 Bom. L.R.422 (P.C.). In that case a mortgage was executed by one Sheoraj Singh who declared that he was the absolute owner in possession of the mortgaged property and that there was no co-sharer therein, and on this footing purported to mortgage it to the Bank of Upper India. In fact, the property was the joint property of Sheo raj Singh and his younger brother Maharaj Singh. Maharaj Singh did not join in the mortgage nor did it appear by the mortgaged that he had any proprietary interest in the mortgaged property. He was, however induced to sign the mortgage deed to afford evidence that he had assented to the taking of the loan by Sheoraj Singh and to the granting of the mortgage. A suit was brought on the mortgage against both brothers and was resisted, by Maharaj Singh on the ground that he was a minor at the time of the execution of the mortgage and that the deed was not binding on him. The question of his minority was material on the plea that though he had not joined in the mortgage he has assented to it. This Courts in India found that he was a minor and diminished the suit. In appeal to the Privy Council it was sought to make him liable on the ground that Sheoraj Singh was his de facto guardian and that the mortgage vv as executed in lieu of antecedent-debt and their Lordships of the Privy Council observed:
Having found as a fact that Maharaj Singh was a minor on the 28th of October 1892 it is not necessary for their Lordships to consider any other issue. This suit has been brought on the mortgage-deed of the 28th of October 1892 by the assignee of that mortgage, and as their Lordships have held that the mortgage was not made by Sheoraj Singh as the manager of the family or in any respect as representing Maharaj Singh, and as Maharaj Singh was then a minor, the mortgage-deed as against him and his interest in the estate was not merely voidable, it was void and of no effect, and must be regarded as a mortgage-deed to which he was not even an assenting party and as a mortgage-deed which did not affect him or his interest in the estate.
6. In the same way, in the present case, the answering defendants were minors at the execution of the mortgage and there is no question of their having assented to it. The mortgage was not made by Musammat Somari as representing the family estate or in any respect as representing the appellants. As against them and their interests the mortgage-deed is, therefore not merely voidable; it was void and is it no effect, and was a mortgage-deed which did not affect them or their interest in the estate. Having found that Muscat Somari Executed the mortgageing representing the estate of the minors, be as claiming to be absolute owner of the property, the Courts below should have dismissed the suit as against the appellants and as against the mortgaged property which belonged to them, A personal decree against Musammat Somari her sell has not been asked for in this suit We accordingly allow the appeal and dismiss the suit with costs in all Courts including fees on higher scale.