Rampini and Pratt, JJ.
1. The suit out of which this appeal arises was brought by the plaintiffs to recover a sum of money clue upon a registered bond, dated the 10th November, 1885. The bond was executed by the first defendant, Moyna Bibi, for herself, and, it is alleged, as mother and natural guardian of her minor daughters, the defendants Nos. 2 and 3.
2. The defence of the first defendant was that the bond was not genuine. The defence of the defendants Nos. 2 and 3 was that they knew nothing about the bond, and that as, under Mahomedan law, their mother had no right to mortgage their shares, they were not bound.
3. Both the Courts below have found that the bond was a genuine one; that it was executed by the defendant No. 1, who is bound by it; that the consideration for it was a sum of money spent by the plaintiffs in conducting a litigation to save the property; and that, as the transaction was for the benefit of the minors, they should make restitution to the plaintiffs in proportion to their shares before they can have them released from liability under the bond. A period of six months was fixed for their making such restitution, and it was ordered that, failing their doing so, their shares, equally with that of the defendant No. 1, should be sold.
4. The defendants appeal to this Court.
5. A preliminary objection has been raised by the respondents that the court-fee paid on the appeal is insufficient. The appellants have paid a court-fee of Rs. 10 only, and it has been urged that an ad-valorem court-fee should have been paid. We think that there is some foundation for this preliminary objection, because the defendants Nos. 2 and 3 certainly seek to have set aside the order directing them to make restitution to the plaintiffs to the extent of their shares. We understand that, in proportion to their shares in the property, they would have to make restitution of the consideration money of the mortgage to the extent of Rs. 2,100k They are, therefore, liable to pay an ad-valorem duty on this amount before they can have their appeal heard. The learned pleader for the appellants has undertaken to pay this amount without delay: so we proceed to deal with the appeal. Of course, the payment of this court-fee will be a condition precedent to any benefit that the appellants can obtain in the decretal order we are now about to make.
6. Turning to the merits, the grounds of appeal are--First, that no personal decree should be given against any of the defendants because the plaintiffs' claim to a personal decree is barred by limitation, the suit having been instituted more than six years after the date of the payment of the mortgage money. This ground of appeal is urged on behalf of all the three defendants. On behalf of the minor defendants Nos. 2 and 3, it is further contended that as their mother was not their guardian de jure or de facto, she had no power to bind their property, and so no decree should have been given against them; that the mortgage of their shares in the property should be declared void; and that they should not be held liable to make restitution to any extent.
7. We are relieved from the necessity of discussing the first ground of appeal by the admission of the pleader for the respondents that he does not, on behalf of his clients, seek for a personal decree against any of the defendants, but entirely gives up the prayer for a personal decree. That being so, we need not discuss any further this ground of appeal: we need only say that we, of course, in the circumstances, set aside the decision of the Lower Appellate Court so far as it gives a personal decree against any of the defendants.
8. As for the second ground of appeal, namely, that the minors are not bound by the act of their mother, the learned pleader who appears on their behalf has cited the cases of Bhutnath Dey v. Ahmed Hosain (1885) I. L. R. 11 Calc. 417, Baba v. Shivappa (1895) I. L. R. 20 Bom. 199, and Nizamuddin Shah v. Anandi Prasad (1896) I. L. R. 18 All. 373. These cases seem to us fully to support the contention of the pleader for the appellants that the mother of the minors, not being their natural guardian according to Mahomedan Law, being only their mother and not one of their paternal relations, and not being a certificated guardian appointed under any Guardian and Wards Act then prevailing, her act cannot, in any way, bind them or their property. We may here montion that, from the terms of the bond, it is clear that when the defendant No. 1 mortgaged the property, although she mortgaged for daughter's shares as well as her own, she did not profess to do so as their guardian de jure or de facto. In these circumstances we consider that we must hold, as has been laid down in the cases cited by the pleader for the appellants, that the act of the mother was entirely void so far as the shares of the minors in the property are concerned.
9. The pleader for the respondents, in reply, has cited the cases of Ram Chunder Chuckerbutty v. Brojo Nath Mozumdar (1879) I. L. R. 4 Calc. 929, and Modhoo Dyal Singh v. Golbur Singh (1868) 9 W. R. 511, a passage from Mr. justice Trevelyan's work on Minors, second edition, page 180, and a passage from Mr. Justice Amir Ali's work on Mahomedan Law, Vol. II, page 476. We think, however, that none of these cases or works furnish a sufficient reply to the contention of the pleader for the appellants. The case of Bam Chunder Chuckerbutty v. Broja Nath Mozumdar (1879) I. L. R. 4 Calc. 929, lays down that Act XL of 1858 does not affect any provision of Hindu or Mahomedan Law as to guardians, who do not avail themselves of the Act. But in the present case the mother was not the guardian of the minors under Mahomedan Law, so this ruling is no authority for the contention that her act binds the minors or their property. The passage cited from Mr. Justice Trevelyan's work on minors is to the effect that ' an alienation by a guardian which does not bind the minor is not void, but voidable at the instance of the ward. Subject to the payment of such money as he may have obtained the benefit of, the minor is entitled before or after obtaining his majority to recover such of the property as by the wrongful and unauthorised act of his guardian has come into the hands of other persons. 'That may be, but the answer for the minors is (1) that their mother was not their guardian; (2) that her act was not voidable, but void; and (3) that they are not seeking to avoid a contract, but that it is the plaintiffs who are endeavouring to enforce a void contract as against them. The case of Madhoo Dyal Singh v. Golhpr Singh (1868) 9 W. R. 511, is the case of a Hindu son who, under the Mitakshara Law, was held entitled to set aside the sale by his father, by which he benefited on his refunding his share of the purchase-money. It has, however, no analogy to the present case; and, though it may be that, if the minors had been suing in this case to recover possession of their shares of the property, they might have been compelled, on the principle that he who seeks equity must do equity, to refund the consideration money of the mortgage to the extent to which they had benefited by it, and though it may be anomalous that they should be in a better position when sued instead of suing, yet this does seem to be the effect of the cases above cited for the appellants, especially of the decision in Nizamuddin Shah v. Ananda Prasad (1896) I. L. R. 18 All. 373, which no authority relied on by the respondent's pleader in any way controverts. In Mr. Justice Ameer Ali's work on Mahomedan Law, Vol. II, it is laid down that ' the mother is not a natural guardian. She is entitled to the custody of the persons of her minor children, but she has no right to the guardianship of their property. If she deals with their estate without being specially authorized by a Judge or by the father, her act should be treated as acts of a fazili. If they are to the manifest advantage of the children, they should be upheld; if not, they should be set aside.' To this it may be replied that, in the first place, it does not appear to 'be for the manifest advantage of the minors that their property should have been mortgaged for a sum carrying interest at the rate of 18 per cent. per annum, and, in the second place, that this passage does not seem to us to be of sufficient authority to justify our disregarding the judicial decisions to the contrary effect above referred to.
10. We accordingly decree this appeal with costs, subject, of course, to the payment? of the ad-valorem court-fee mentioned in the commencement of this judgment. If that fee is not paid within seven days from this date, the appeal will stand dismissed with costs.
11. This decision does not, of course, affect the decree which has been given against the defendant No. 1. It sets aside the decree of the lower Appellate Court only so far as it makes the defendant No. 1 and the other defendants personally liable, and so far as it directs that the defendants Nos. 2 and 3 db make restitution to the plaintiffs, and that their shares in the property be sold.