1. This appeal arises out of a suit upon a mortgage-bond executed by defendants Nos. 1 and 2 for selves, as executors to the estate of their father and as certificated guardians of their four minor brothers, the defendants Nos. 3 to 6. The suit has been decreed by both the Courts below against the defendants, and defendants Nos. 3 to 6 have appealed to this Court.
2. It is contended on behalf of defendants Nos. 3 to 6 that they were minors at the date of the mortgage bond, that defendants Nos. 1 and 2 who had obtained a certificate of guardianship did not obtain sanction of the Court for the mortgage and that, therefore, the mortgage was not binding upon them.
3. Before dealing with this contention, we have to consider the powers of the defendants Nos. 1 and 2 under the Will, as they executed the mortgage bond not only as certificated guardians of the minors, but also as executors. By the Will it was provided that all the brothers would be 'entitled to what remained after performing the obsequial ceremony.' The two elder brothers (the defendants Nos. 1 and 2) were appointed guardian? of the minors, and they were directed to manage the estate during the minority of the younger brothers and were given the power of transferring the two Mahals specified in the Will for paying off debts. The mortgage was executed 10 years after the death of the testator, and before the date of the mortgage the defendants Nos. 1 and 2 had taken a certificate of guardianship in respect of the property of the minors, thus treating the estate to have been absolutely vested in the brothers. We think that in these circumstances the real position of the defendants Nos. 1 and 2 at the date of the mortgage was that of guardians and managers and not that of executors. But even assuming that the position was that of executors, we are of opinion that the Will imposed a restriction on their power to mortgage. Under Section 90. Sub-section (2) of the Probate and Administration Act, the power of an executor to dispose of immoveable property vested in him is 'subject to any restriction which may be imposed in this behalf by the Will appointing him, unless Probate has been granted to him and the Court which granted the Probate permits him by an order in writing, notwithstanding the restriction, to dispose of any immoveable property specified in the order in a manner permitted by the order.' In the second paragraph of the Will the executors were authorised to grant a permanent settlement of or sell two Mahals specified in the Will for the purpose of liquidating the testator's debts. There is no express restriction on their power to mortgage, but the restriction need not be express and the question is whether having regard to the terms of the Will there was my implied restriction on the power of the executors to mortgage the property. The testator in the second paragraph of the Will states that ha had debts amounting to about Rs. 9,000, that the annual interest payable thereon exceeded the income of his property, that there was little means of paying off the debts and that, therefore, the executors should save him from the sin of debt by granting some permanent settlement of or by sale of the two Mahals specified in the Will.
4. It is clear, therefore, that the intention of the testator was that his debts should be paid off by sale of the two Mahals, so that the remaining portion of the estate might be saved and that he might be saved from the 'sin of debt' It cannot be contended in the circumstances that the intention of the testator was that the debt, which was such a large sum (Rs. 9,000), was to be paid off by another mortgage-debt the existence of which would be equally injurious. It may be mentioned that the mortgage-bond in suit provided for interest at the rate of Rs. 14-4 0 per annum with half yearly rests.
5. Sir Barnes Peacook in the case of Sreemutty Deeno Moyee v. Tarrachurn Koondoo Chowdry 3 W.R. Mis. 7 note : Bourke A.O.C. 48, after referring to the case of Haldenby v. Spofforth (1639) 1 Beavau 380 : 8 L.J. Ch. 238 : 3 Ju 241 : 48 E.R. 99 : 49 R.R. 390 in which it was laid down 'that a trust to make sale or dispose of the testator's real estates, does not authorise a mortgage, there appearing an intention on the part of the testator that the whole estate should be converted,' observed: 'In the present case, we think that the clear intention of the testator was that if it should become necessary to raise money for the purposes of his estate, the house in Calcutta should be sold, and the surplus proceeds, if any, would be invested in Government securities. When a testator says, that the proceeds of a sale are to be applied in a particular manner, he practically points out very distinctly that the, house is not to be mortgaged, more especially that it is not to be mortgaged at a high interest which must almost necessarily be injurious to the estate. 'See also the case of Kanti Chandra Chattopadhya v. Kristo Churn Acharjee 3 C.W.N. 515. No permission of the Court was obtained for mortgaging the property in the present case and we are accordingly of opinion that defendants Nos. 1 and 2 had no power to mortgage as executors under the Will.
6. Our attention has been drawn to the case of Purna Chundra Bakshi v. Nobin Chandra Gangopadhya 8 C.W.N. 362. In that case the learned Judges held that where a 'Will gave the executor power to sell the testator's property to pay off the debts incurred by him or if the property was a losing concern, there being no provision in the Will against the executor mortgaging the property, he had power to mortgage such property and the case of Kanti Chandra Chattopadhya v. Kristo Churn Acharjee 3 C.W.N. 515 was distinguished The decision of the learned Judges, however, turned upon the terms of the Will, and they held that it was clear that the testator never prohibited or intended to prohibit the executor mortgaging the property in case of necessity. In the present case the intention, as stated above, was that the property should be sold and not mortgaged and we think, therefore, that there was an implied restriction on the power of the defendants Nos. 1 and 2.
7. The learned District Judge also was of opinion that as the bond was executed some ten years after the death of the testator, it did 'not appear that defendants Nos. 1 and 2 took the loan as executors of the Will, the more so, as in the Will it was laid down that the testators' debts were to be discharged by the sale of two specific properties.'
8. The next question is whether the mortgage by defendants Nos. 1 and 2 as certificated guardians of the minors is binding upon the latter. There is no doubt that under Section 29 of the Guardians and Wards Act, VIII of 1890, the guardian of the property has no power, without the previous permission of the Court, to mortgage the property of his ward, and under Section 30 the disposal of immoveable property by a guardian in contravention of Section 29 is voidable at the instance of the minor. It is contended, however, that the defendant No. 1 was karta of the family and that, therefore, he had power to mortgage even though he had not obtained sanction of the Court, which would be required in the case of a certificated guardian in effecting a mortgage. But if the karta of a joint Hindu family chooses to apply under Act VIII of 1890 for being appointed a guardian of a minor and has been appointed as such guardian, we think that he comes under the control of the Court and cannot exercise the powers of a karta. As pointed out by Macpherson, J., in the case of Surut Chunder Chatterjee v. Ashootosh Chatterjee 24 W.R. 46 : 15 B.L.R. 350: 'Having been appointed under Act XL of 1858 the guardian could no longer act for the minor otherwise than under his appointment by the Court. If one who is the natural guardian is appointed by the Court and acts under the appointment, he can have no power other than that given him by Act XL of 1858.' The same view was taken in the oases of Bhupendro Narayan Dutt v. Nemye Chand Mondul 15 C. 627 : 7 Ind. Dec. (N.S.) 1001 and Ranjit Sing v. Amullya Prosad Ghose 9 C.W.N. 923 at p. 927. Reliance is, however, placed on behalf of the respondents upon the case of Gharibullah v. Khalak Singh 30 I.A. 165 : 25 A. 407 (P.C.) : 5 Bom. L.R. 478 : 7 C.W.N. 681 : 8 Sar. P.C.J. 483. But that case is clearly distinguishable. There the minor belonged to a Mitakshara family and although a guardian was appointed of his property, it was pointed out by the Judicial Committee that the guardian of the property of an infant cannot properly be appointed in respect of the infant's interest in the property of an undivided Mitakshara family, on the plain ground that the interest of a member of such a family is not individual property at all, and that, therefore, a guardian, if appointed, would have nothing to do with the family property. In the present case the family is governed by the Dayabhaga, and defendants Nos. 1 and 2 had been properly appointed guardians. That being so, the mortgage executed by the guardians without the sanction of the Court is certainly voidable at the instance of the minor.
9. Nor does the plaintiff's case stand on a better footing if the position of the defendants Nos. 1 and 2 be taken to have been that of testamentary guardians (assuming that they could exercise their power as such after having been appointed guardians under the Guardians and Wards Act), as we have found that an implied restriction was imposed on their power by the Will which appointed them guardians.
10. The learned District Judge, however, was of opinion that defendants Nos. 1 and 2 as adult male members of a joint Hindu family were entitled to borrow what they considered necessary for joint family expenses. One of them was the karta of the family, but the question of family necessity or benefit of the minors was not; raised in the plaint, and the case was brought on the footing that the minors were liable because the mortgage was executed by defendants Nos. 1 and 2 as executors and certificated guardians of the minors. The learned District Judge says that the defendants had an opportunity of meeting this aspect of the case, because it was raised in the examination of the witnesses. But as there was no allegation in the plaint on the point, the defendants might have considered it unnecessary to adduce evidence on the point. Apart from that there is no finding that the minors have been actually benefited by the money borrowed by defendants Nos. 1 and 2, and it is only where it is shown that the debt or any portion of it was actually applied for the benefit of the minors that they can be equitably held liable. The case will, therefore, go back to the lower Appellate Court in order that the question whether the mortgage debt or any portion of it was applied for the benefit of the minors may be decided. If it is found that the minors had been benefited, then they will be made liable to that extent.
11. The last contention is as regards interest. The rate of interest provided in the bond cannot stand, as the contract! is not binding on the minors. In the event of it being shown that the minors were benefited by the debt they should be made liable for interest at a reasonable rate, and in order to obviate any further discussion on the question as to the rate of interest, the appellant has suggested 6 per cent. per annum and the respondent not objecting to it, we think that interest at that rate should be allowed on such amount (if any) for which defendants Nos. 3 to 6 may be held liable. As against defendants Nos. 1 and 2 the mortgage degree will stand.
12. Costs will abide the result except as regards the defendants Nos. 1 and 2.