JUDGMENT
1. This is a plaintiff's appeal under the following circumstances: Ram Das, defendant 3, father of the plaintiff-appellant who is a minor aged 9 years, was sued on foot of a mortgage by defendants 1 and 2, Chhanga Mal and Manga Mal. They obtained a decree for sale on the mortgage but had not impleaded Jwala Nath, the present plaintiff. The money due on the mortgage not having been paid by Ram Das an application for execution of the decree was filed by the two defendants and the property in suit was advertised for sale in execution of the decree in suit No. 281 of 1924. It is upon this action of the defendants 1 and 2, namely, applying to the Court to enforce their decree that the present plaintiff, a minor aged 9, under the guardianship of Mt. Anaro, has filed this suit for a declaration that half of the house mortgaged by Ram Das, being the plaintiff's share, is not liable to be sold in execution of the decree. The plaintiff pleaded that he not having been impleaded in the previous suit, the decree in that suit was not binding on him, that there was no legal necessity for Ram Das to incur the loan and that as a matter of fact, no money had been advanced to Ram Das. The defence of defendants 1 and 2 was that the mortgage was executed to satisfy antecedent debts, that there was legal necessity for the mortgage and, therefore, the mortgage was binding on the plaintiff. The defendants further pleaded that the property in suit was not ancestral as the plaintiff was not born at the date of the mortgage. The last two pleas were not accepted by the learned Subordinate Judge who heard the case. Repelling all the contentions of the plaintiff and holding that the mortgage executed by Ram Das was for antecedent debts which were neither for immoral nor illegal purposes the Subordinate Judge dismissed the plaintiff's suit. The plaintiff has come up in appeal and the learned Counsel for the appellant cannot seriously contend that the finding of the learned Subordinate Judge, that the mortgage executed by Ram Das was for antecedent debts and that those debts were neither for immoral nor illegal purposes, can be challenged. His contention is that the plaintiff not having been made a party to the suit of 1924 the Court was bound to give him a decree because in view of the Full Bench case of Bhawani v. Kallu [1895] 17 All. 537 all that the plaintiff had to prove was that he was a member of the joint family with his father which is not questioned by any one and that he was not a party to the suit. We are unable to accept this contention. In our opinion the case of Bhawani v. Kallu [1895] 17 All. 537 though not overruled by any case in which it was distinctly so stated, the case cannot be held to be binding on us in view of the decision of their Lordships of the Privy Council of Brij Narain v. Mangla Prasad A.I.R. 1924 P.C. 50. In that case it was proved that in the year 1912 when a decree was passed in favour of the mortgagee although the minor sons of the mortgagor were impleaded they were found by concurrent findings of the Subordinate Judge and the High Court not to have been properly represented. It was admitted before their Lordships of the Privy Council (see p. 99 of 46 All,) that the ex parte decree was not binding on the minors inasmuch as they were not properly represented, but in spite of their not having been properly represented their Lordships of the Privy Council decreed the appeal on the ground that, the mortgage was executed for antecedent debts. If the case of Bhawani v. Kallu [1895] 17 All. 537 was good law in the year 1928 when their Lordships of the Privy Council decided the case, the fact that the minors, who were the plaintiffs, not having been properly represented would have been sufficient to give them a decree as prayed for by them, but in our opinion the fact that the minors were not represented was not the crucial point upon which the case was decided.
2. The real point on which that case was decided was whether the mortgage which the father had executed was a valid and legal mortgage binding on the sons. In the present case the learned Subordinate Judge has found, and in our opinion, rightly, that the mortgage was a mortgage binding on the plaintiff. We are, therefore, of opinion that there is no force in this appeal and it must be dismissed. We accordingly dismiss it with costs.