1. This appeal arises out of a suit by the plaintiff Jadunandan Singh to set aside a mortgage and mortgage-decree obtained against his father Bal Narain Singh on the ground of fraud and want of legal necessity. The plaintiff's father executed a mortgage in favour of the ancestor of the answering defendants. The latter brought a suit' on the mortgage impleading both the plaintiff and his father. The plaintiff was at the time a minor. His father was at first named as his guardian ad litem but refused to act. The Nazir of the Court was then appointed guardian. Although notices had been served in connection with the (nomination of the plaintiff's father as his guardian, it appears that no second notice was served on the minor when the Nazir of the Court was appointed nor were any funds provided for the latter to defend the suit. Both the Courts have found that there was no fraud on the part of the defendants but the learned District Judge has held on the authority of Bhagwan Dayal v. Param Sukh 27 Ind. Cas. 623 : 37 A. 179 : 13 A.L.J. 179, that the plaintiff was not properly represented in that suit and on this ground has set aside the decree against him. We may note that the Patna High Court in Pande Satdeo Narain v. Ramayan Tewari 71 Ind. Cas. 705 : 2 Pat. 335 : 4 P.L.T. 147 : (1928) A.I.R. (Pat.) 242, has taken a somewhat different view of the effect of failure to serve notice in connection with the appointment of a guardian ad litem but if we follow the ruling in Bhagwan Dayal v. Param Sukh 27 Ind. Cas. 623 : 37 A. 179 : 13 A.L.J. 179, this does not conclude the matter. If the mortgage executed by the plaintiff's father was executed for legal necessity then the mortgage is binding on the joint family property and would be equally binding even though the plaintiff had not been formally impleaded in the suit. A similar plea of the minor not having been represented was taken in the recent Privy Council case of Brij Narain Rai v. Mangala Prasad Rai 77 Ind. Cas. 689 : 21 A.L.J. 934 : 46 M.L.J. 23 : 5 P.L.T. 1 28 C.W.N. 253 : (1924) M.W.N. 68 : 19 L.W. 72 : 2 P.L.R. 41 : 10 O. & A.L.R. 82 : (1924) A.I.R. (P.C.) 50 : 33 M.L.T. 457 (P.C.). In that case it was admitted before their Lordships that the minors were not properly represented and that the decree was not binding on them but as the mortgage was found to have been duly made for antecedent debt their Lordships nevertheless granted a declaration that it was binding on the joint family property. In this case although no separate issue on the question of necessity was framed the parties went into evidence on the point in connection with the issue of fraud. Indeed apart from limitation and resjudicata the issue of fraud was the only issue raised and is was on this issue that the evidence was adduced on which the respondent succeeded in the Court below.
2. The question of limitation was not seriously argued either before me or in the Court below and there can be no doubt that the suit was within time.
3. We accordingly remit the following issue to the Court below:
4. Was the mortgage in dispute executed for legal necessity or antecedent debt
5. The parties will be at liberty to adduce additional evidence. The finding should be submitted within two months. On receipt of the finding ten days will be allowed for objections.