1. This is an appeal by the defendant No. 3 from the decision of the learned Subordinate Judge of Hooghly reversing the decision of the Munsif of Howrah. The plaintiff brought the suit to enforce a mortgage. The mortgage was given by the second defendant acting on behalf of her minor sons, of whom she was the certificated guardian. The sanction of the Court was not, however, obtained under the provisions of Section 29 of the Guardians and Wards Act. The defendant No. 3, who is the appellant, subsequently purchased the mortgaged property from the guardian mother acting on behalf of the minors and the sanction of the Court was obtained to that sale. Therefore, under the provisions of the law, that property properly passed to the defendant No. 3. It is said now that as the mother properly spent the money that she borrowed on the mortgage for the benefit of the minors and as the minors were benefited, therefore, the purchaser who has got a regular and complete title in the way provided for by the law took subject to this inchoate right of the plaintiff. Nothing of the sort. The case in Hem Chandra Sarkar v. Lalit Mohan Kar (1.) does not lay down any such proposition at all. That case is against the view put forward by the plaintiff and, when properly read, it is an authority in favour of the appellant. The correct decree in this case is clearly the one that was passed by the Munsif, that the money is liable to be re-paid to the mortgagee by the mother personally. One cannot have a good mortgage on a property when the law says that certain formalities should be observed and those formalities have not been observed. To hold otherwise is to give the go by to the provisions of the law.
2. Then it is said that the sale to the defendant No. 3 is voidable unless the minor has elected to confirm the transaction. There are two answers to that, First the subsequent election of the minor cannot affect the defendant No. 3 whose title has probably matured in the meantime. Secondly, the minor at the time of the suit was still a minor and obviously could not make any such election.
3. The decree of the learned Subordinate Judge must be set aside and the decree of the Munsif restored with costs both here and in the lower Appellate Court.