1. The respondents Nos. 1 and 2 are the sons of one Bhopal Mahton and respondents Nos. 3 and 4 are the sons of respondent No. 2. All the respondents were minors under the guardianship of Serko Koer, mother of respondents Nos. 1 and 2. Serko Koer purchased a certain property in her own name and not being able to pay the considertion money in cash executed a mortgage of the purchased property in favour of the vendors. The vendors assigned their right to the mortgage and the assignee brought a suit on the mortgage against Serko Koer and in that suit made the respondents defendants on the ground of their having been benefited by the mortgage as the property was purchased for the joint family of which they were members. A joint decree was passed on the mortgage against all the defendants. The mortgaged property was sold but the proceeds were insufficient to satisfy the whole decree. In the meantime Serko Koer died and the decree-holder applied for a decree under Section 90 of the Transfer of Property Act against the respondents. They .objected that no such decree could be passed against them as they were not the mortgagors and had received no assets from Serko Koer. The Court of first instance passed a decree under section .90 as asked for but the lower appellate Court has set aside the same, holding that the mortgage decree was given against them as they were benefited to the extent of the morigaged property and no more and as the mortgaged property has been sold, they are not liable any further. Section 90 of the Transfer of Property Act contemplates a supplementary decree against the mortgagor alone or his representatives if he is dead. The word 'defendant' in the section means the mortgagor defendant. The respondents are not the mortgagor's in the sense of being executants of the mortgage deed and it is not shown that they have got any assets from Serko Koer so as to attract upon themselves the liability Serko Koer ; so that prima facie no decree can be passed against them under Section 90. See Ram Lal v. Sil Chand 23 A. 439 : A.W.N. (1901) 131, Mata Amber v. Sridhar 26 A. 507 : (1904) A.W.N. 73 : 1 A.L.J. 250 and al0so Ram Kishore Girv. Suraj Deo Prasad 13 C.W.N. 138 : 1 Ind. Cas. 442 : 9 C.L.J. 5. In the last case a decree under Section 90 was sought for against a Mitakshara son after the death of his father against whom a mortgage decree had been passed. The learned Judges held that no such decree could be passed personally against him but there might be such a decree against him as a Mitakshara son succeeding by right of survivorship and, therefore, filling the position of a representative of his deceased father as held in the case of Amar Chandra Kundu v. Sebak Chand Chowdhury 34 C. 642 : 11 C.W.N. 593 : 5 C.L.J. 491 : 2 M.L.T. 207 (F.B.). In this case, however, no question of that kind arises and the appellants are in no sense the representatives of Serko Koer from whom they are not shown to have inherited any property. It is contended, however, that the appellants were the real mortgagors, Mussammat Serko Koer having acted on their behalf as their guardian and acquired the property for them. This matter was, however, not presented to the trial Court in the mortgage suit exactly in this light. The judgment and decree have been filed and they show that the plaintiff in that case claimed a decree against them as they were members of a joint family and had benefited by the purchase. In any case, the mortgage decree was passed against them on the ground of benefit. But that decree only meant that the mortgaged property was liable to sale. The personal liability must be made out on the terms of the mortgage bond: the bond, however, was not filed in this case nor was any evidence given to prove the personal liability of the appellants. Under the circumstances, the order of the learned District Judge seems to be correct and must stand. Each party to bear its own costs in all Courts.
2. I agree that the question of the liability of the respondents under Section 90 of the Transfer of Property Act is not concluded by the mortgage decree and that no sufficient ground has been shown for any interference on our part with the decision of the Court of appeal below.