MARIE PENHEIRO Vs. JOTINDRA MOHAN SEN

JUDGEMENT

(1.) This appeal is preferred by the plaintiffs, who are minors represented by a guardian. They inherited two thirds of their ancestral homestead from their father. The remaining one-third was bequeathed to them by their grandmother or step grandmother Isabella Penheiro. One Mdcdonald Polaooo was appointed executor by the Will of Isabella Penheiro and he took out Probate. About a year after the grant of Probate he executed a lease in respect of one-third of the homestead and in the following December, i.e., 18 months after the Probate was on anted ha mortgaged the entire homestead to the defendant No. 2 in the name of defendant No 3. We are not now concerned with the lease. The suit out of which the present appeal arises was brought by the plaintiffs for a declaration that the mortgage executed by this Macdonald Polacco was inoperative. The first Court granted the plaintiffs a decree. An appeal was preferred by defendant No. A. It was beard ex parte and the learned District Judge reversed the order of the first Court and dismissed the suit.

(2.) The plaintiffs have now. preferred this appeal, and two arguments have been advanced. The first is that the mortgage is entirely void and the second is that, at any rate, it is void with regard to the two thirds, share inherited by the minors from their father.

(3.) So far as the second point is concerned, it seems to me quite clear that the decision of the learned Judge was wrong. The first Court found that Polacoo was not the guardian of the minors and the document itself does not pretend to show that he was acting as their guardian. The first Court also found that there was no necessity for the mortgage. That being so, it is quite clear with regard to the two-thirds inherited from the father that the mortgage was inoperative.