HEM CHANDRA SARKAR Vs. LALIT MOHAN KAR

JUDGEMENT

(1.) This appeal arises out of a suit upon a mortgage bond executed by the mother of the defendants, while they were minors, in favour of the plaintiff. The defendants mother was their guardian appointed under Act VIII of 1890, but she did not obtain permission of the District Judge for the mortgage.

(2.) The learned Subordinate Judge held that the mortgage bond was executed by the mother in her personal capacity. We are of opinion, however, upon a consideration of the bond as a whole that the mother executed the bond on behalf of her minor sons though it is not so mentioned in it. The statement in the bond that she would make over the mission granted by the District Judge to the mortgagee makes the point clear.

(3.) A mortgage executed by a guardian appointed under Act VIII of 1890 without the permission of the Court is not absolutely void, but, as laid down in Section 30 (read with Section 29), it is only voidable. It has been held, in the case of Eastern Mortgage and Agency Co., Ld., v. Rebati Kumar 3 C.L.J. 260 that it is not necessary for a person in the position of the defendants to bring an action to set aside the transaction and that it is sufficient if he declares his will to rescind by way of defence when an action is brought to enforce the mortgage against him. It has been found in the present case by both the Courts below that the money raised on the mortgage by the mother was for the benefit of her minor sons. It was held in the case cited above that, under such circumstances, a person in the position of the defendants cannot avoid the mortgage without restoring the benefit which he had received under the mortgage and that the said equitable doctrine applies rot only when he as a plaintiff seeks a declaration that the mortgage is not binding but also when he is a defendant in an action upon the mortgage. We are bound by that decision.