ABDUL AZIZ Vs. NANDAN PRASAD

JUDGEMENT

(1.) The facts out of which this appeal arises are as follows:

(2.) The property in suit belonged originally to one Sheo Charan. Tie died leaving a son Sital. Sital had three sons, Debi, now dead, Nandan and Sheo Nandan. On the 6 of August. 1906, Sital made a will in favour of his wife Musarnmat Somari of the property in suit and died soon after its execution. On the 16 of August, 1908, Musarnmat Somari mortgaged the property in favour of the wife of the plaintiff. This suit was brought by the heirs of the mortgagee to recover the amount then due under the mortgage, by sale of the mortgaged property, and it was brought against Musarnmat Somari alone. In the plaint she is described as the mortgagor and there is no mention of her sons. Subsequently, on the application of Nandan Prasad for himself and as guardian of his minor brother Sheo Nandan, they were brought on the record as defendants and they alone defended the suit. They denied the execution of the deed or that there was consideration. In their written statement they said that Musammat Somari had no legal right to mortgage the house and that she had no claim whatever in it. In the mortgage-deed the will is recited, and Musammat Soman claims to be in full proprietary possession of the property under the will, and as owner she purports to mortgage the property for a sum of Rs. 250 for the payment of "miscellaneous debts and other needs." There is no mention in the deed itself that the money was required for the use of the minors.

(3.) The mortgage was executed by Musammat Somari claiming to be sole owner of the property under her husband's will. The suit also was brought on this basis against Musammat Somari alone. Nandan and Sheo Nandan, the two younger sons of Sital, asked to be joined in the suit on the ground that the property belonged to them and not to their mother. In other words, they claimed a title paramount to that of the mortgagor. Under these circumstances the trial court might well have refused to allow them to be joined or to allow the title of the mortgagor to be brought into controversy, as against third parties, in a mortgage suit. This course was, however, not adopted. The courts below have found that the will was invalid, and that Musammat Somari had no title to the property. They have nevertheless allowed the suit on the ground that Musammat Somari was the de facto guardian of her minor sons and that the transaction was for legal necessity. That Musammat Somari was not the legal guardian of the minors was admitted. The family was a joint family, and they had an elder brother, Debi Prasad, who was the head of the family.