Judgement Appeal from a decree of the above Court (Jan. 18, 1898) modifying a decree of the Subordinate Judge of the District of Unao (Jan. 3, 1895). The question decided related to the liability of the respond ents under two deeds of mortgage by conditional sale executed on February 6, 1889, and September 19, 1890. To a suit for relief brought by the mortgagee, the defendant Khalak Singh pleaded that the money was borrowed partly for necessity and partly without it. He stated that he and his brothers constituted a joint Hindu family. Jangli Singh, as a major on his own behalf, and Musammat Lachmin as guardian of Jai Singh, jointly filed another written statement. They admitted the execution of the deeds, and pleaded that the money was borrowed without necessity ; that Jangli Singh and Jai Singh were minors at the time of the execution of the deeds ; and that their mother, as guardian, could not create a valid charge on their property. The Subordinate Judge found that the moneys were borrowed for justifying necessity, and gave a decree for foreclosure. The Judicial Commissioners Court was of opinion that the deeds had been executed by Musammat Lachmin as guardian, and in no sense by Khalak Singh as head of the family. It was conceded that Musammat Lachmin had obtained a certificate of guardianship under Act XL. of 1858, which, though not properly made, as the minors were members of a joint family and possessed of no separate property, was nevertheless, in the opinion of that Court, good in law to constitute her the guardian of the property of her minor sons under the appointment by the Court, and subject to the provisions of the Act under which the appointment was made. It further held that under s. 29, Act VIII. of 1890, and s. 18, Act XL. of 1858, the certificated guardian could not, without the previous sanction of the judge, mortgage the minors property ; and that the mortgages in suit having been executed without such permission were invalid, so far as the interest of the minors was concerned. The Judicial Commissioners also decided that, whether or not the moneys borrowed were spent on legal necessities and for the benefit of the minors, they were under no liability to refund any portion thereof. The Judicial Commissioners also decided that, whether or not the moneys borrowed were spent on legal necessities and for the benefit of the minors, they were under no liability to refund any portion thereof. In the result they dismissed the suit as regards Jangli Singh and Jai Singh; though they granted a foreclosure decree in respect of Khalaks share of the mortgaged property. The Court held that Khalak as a member of a joint family could not mortgage even his own share except for legal necessity or the benefit of the family, but found that to a specified extent necessity had been proved. De Gruyther, for the appellant, contended that on the evidence the Appeal Court was wrong in finding that a portion of the mortgage money was not borrowed for necessity. The deeds in suit were sufficiently executed by Khalak, the karta of the family, so as to create a liability against all the members of the family. Moreover, Jangli Singh was a major at the time of execution ; so that if his concurrence were necessary it was proved. And as regards the minor, he was bound by the act of the karta. No guardian could be appointed for him in respect of his interest in the joint estate. The mother had no doubt obtained a certificate; but that did not render her concurrence in the mortgage necessary either with or without the sanction of the Court. As to power of alienation by the karta, and also in respect of an undivided share of the estate, see Sadabart Prasad Sahu v. Foolbash Koer (( 1869) 3 B. L. R. F. B. 31.) ; Balgobind Das v. Narain Lal (( 1893) L. R. 20 Ind. Ap. 116); Deendyal Singh v. Jugdeep Narain Singh (( 1877) L. R. 4 Ind. Ap. 247.); Suraj Bunsi Koer v. Sheo Proshad Singh (( 1878) L. R. 6 Ind. Ap. 88.); Collector of Monghyr v. Hurdai Narain Shadai. (( 1879) Ind. L. R. 5 Calc. 425.) The respondents did not appear. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. This is an appeal against a decree of the Court of the Judicial Commissioner of Oudh, which varied the decree of the Subordinate Judge of Unao. Ap. 88.); Collector of Monghyr v. Hurdai Narain Shadai. (( 1879) Ind. L. R. 5 Calc. 425.) The respondents did not appear. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. This is an appeal against a decree of the Court of the Judicial Commissioner of Oudh, which varied the decree of the Subordinate Judge of Unao. The three defendants (respondents) are brothers forming a joint Hindu family governed by the Mitakshara law, and as such they are the proprietors of a four annas or five biswas share in the village of Rookarna. On February 6, 1889, a deed was executed which purported to mortgage the family share in the village to Amin-ul-lah to secure a loan of Rs.10,000 and interest; and on September 19, 1890, a second deed was executed which purported to charge the same property in favour of the same mortgagee with a further sum of Rs.1000 advanced by him, with interest. The appellant is the representative of Amin-ul-lah, who brought the present suit in the Court of the Subordinate Judge of Unao to enforce the two mortgage deeds. The material parts of the first deed are as follows " We are Khalak Singh and Jangli Singh, sons of Chet Singh, and Jai Singh, son of Chet Singh, under the guardianship of Musammat Lachmin, wife of Chet Singh, represented by Khalak Singh as her agent." The title of the three brothers is recited, and then follows, "We have mortgaged the same," and the conditions are then stated. The deed was executed by " Khalak Singh with his own pen," " Jangli Singh with his own pen," " Musammat Lachmin with the pen of Mewa Ram, Karinda," and " Jai Singh with his own pen." The acknowledgment for the purpose of registration was signed by " Khalak Singh with his own pen," "Khalak Singh, general agent, on behalf of Musammat Lachmin, guardian of Jai Singh, minor," and " Jangli Singh with his own pen." It states that " Khalak Singh is the general agent of Musammat Lachmin, under power of attorney registered on November 18, 1884, and has authority to mortgage, &c." The forms used in the second deed, that of September 19, 1890, are substantially the same, except that as to Jai Singh the execution is, " Jai Singh, minor under guardianship of Musammat Lachmin and the agency of Khalak Singh," Lachmins name not otherwise appearing, and the registration corresponds. At the times when the two deeds were executed the first respondent, Khalak Singh, was undoubtedly a man of full age, and was the karta of the family. Jangli Singh, the second respondent, appears to have been between eighteen and twenty-one, and therefore of full age if the general rule of Hindu law was applicable to his case. The third brother, Jai Singh, was admittedly a minor. With regard to the object for which the first and principal loan was raised, it is clear that almost the whole of it was borrowed to pay off, and was employed in paying off, pressing claims against the family property; so that to this extent necessity is clearly shewn. And both Courts in India have so found. As to two small sums, however, of Rs.90 4a. and Rs.215 8a., the Appellate Court in India held that there was no evidence of necessity or of inquiry on behalf of the lender. And this view appears to be correct. The Appellate Court in India thus reduced the amount advanced under the first and principal mortgage deed, for which necessity was established, to Rs.9690 7a. 6p., a figure which their Lordships accept as correct. As to the second mortgage, that for Rs.1000, the case is not so clear. There is evidence to shew that the family had long been in a somewhat embarrassed condition, and had difficulty in meeting the necessary family expenses. 6p., a figure which their Lordships accept as correct. As to the second mortgage, that for Rs.1000, the case is not so clear. There is evidence to shew that the family had long been in a somewhat embarrassed condition, and had difficulty in meeting the necessary family expenses. There is evidence, too, that this difficulty was in some years aggravated by floods and drought. And there is the evidence of the witness Durga, who speaks, no doubt, in very general terms, but who says what, if true, to a large extent covers the case, that the Rs.1000 was borrowed, " of which Rs.500 or Rs.600 was paid in Government revenue, and other due expenses were met by it. Out of that, Rs.150 were spent in contracting a marriage for Jai Singh. Of the same money a pair of bullocks was bought for Rs.128." As to the Rs.150 for the marriage, this witness is confirmed by the next. The First Court accepted this evidence; the Appellate Court was not satisfied with it. Their Lordships agree with the First Court to the extent of Rs.778, the sums specifically mentioned, but they think the reference to other expenses too vague for them to place any reliance upon it. The witness Durga, though cross-examined about many things, was not cross-examined upon this point. And the respondent Khalak, the karta of the family and the actual borrower of the money, though he was in Court during the trial, was not called to contradict Durga. Their Lordships, therefore, think it has been sufficiently proved that the Rs.778 above mentioned, part of the loans, was borrowed for family purposes and in case of necessity. The karta of an undivided Mitakshara family, with the con currence of the adult members of the family, can mortgage family property for family purposes in case of necessity, so as to charge the property as against all the members of the family. At first sight, therefore, it would seem that the appellant is clearly entitled to the usual mortgage decree against all the respondents in respect of all the amounts which, as already stated, their Lordships hold to have been borrowed on grounds of necessity. At first sight, therefore, it would seem that the appellant is clearly entitled to the usual mortgage decree against all the respondents in respect of all the amounts which, as already stated, their Lordships hold to have been borrowed on grounds of necessity. But a difficulty was raised in India on the ground that on the face of the mortgage deeds it is shewn that one at least of the three brothers constituting the family was a minor, that the mother had obtained a certificate of guardianship (presumably of property), that one at least of the mortgage deeds was executed in her name with others, and that she as guardian could not (by reason of Act XL. of 1858, s. 18, and Act VIII. of 1890, ss. 29 and 30) make a mortgage of her wards property without the sanction of the Court, which admittedly was not obtained. The Appellate Court in India gave effect to this objection, considering that the mortgages were mortgages of a guardian, and were invalid for want of the sanction of the Court. Their Lordships are unable to concur in this view. It has been well settled by a long series of decisions in India that a guardian of the property of an infant cannot properly be appointed in respect of the infants interest in the property of an undivided Mitakshara family. And in their Lordships opinion those decisions are clearly right, on the plain ground that the interest of a member of such a family is not individual property at all, and that therefore a guardian, if appointed, would have nothing to do with the family property. And applying these observations to the present case, their Lordships think that the mortgages under consideration were not mortgages by the guardian, assuming the mother to have been a guardian, but mortgages by the family, entered into by the karta of the family with the concurrence of Jangli, the only other adult member of the family, if indeed he was an adult. And this leads up to the only remaining question in the case. If it be true that the respondents mother was appointed guardian of the second respondent as well as of the third (as seems to have been assumed in India), that appointment might under Act XI. of 1875, s. 3, have the effect of prolonging the minority of that respondent until he attained twenty-one. If it be true that the respondents mother was appointed guardian of the second respondent as well as of the third (as seems to have been assumed in India), that appointment might under Act XI. of 1875, s. 3, have the effect of prolonging the minority of that respondent until he attained twenty-one. The effect of this, if it were accepted, would be very trifling it would only affect that respondents liability to a personal decree. for me two small sums of Rs.90 4a. and Rs.215 8a. advanced under the first and principal mortgage, and for Rs.222 under the second mortgage, but as to which necessity has not been established. As to this it seems sufficient to say that the second respondent is now of full age and able to bring his case before the Court; that at the time of the mortgages in question he was of full age according to the general Hindu law ; that he executed the mortgages himself as a person of full age; and that if there were any grounds for exempting him from liability, it was for him to shew them, which he has failed to do. It follows that the appellant is entitled to a mortgage decree against the property under the first mortgage, and to similar relief under the second mortgage, to the extent above indicated as to each. He is further entitled to a money decree against the first two respondents personally in respect of the two sums of Rs.90 4a. and Rs.215 8a. excluded from the security of the first deed, and Rs.222 under the second deed. Their Lordships will, therefore, humbly advise His Majesty that this appeal ought to be allowed; that the decree of the Court of the Judicial Commissioner ought to be discharged with costs; that the decree of the Court of the Subordinate Judge ought to be varied by substituting for the sum therein declared to be due to the plaintiff a sum made up of Rs.10,468 la. 6p. principal, and interest in accordance with the two mortgages respectively and the costs throughout; that the period of redemption ought to be extended to six months from the date of His Majestys order on the appeal; that there ought to be an order against the first two respondents personally for Rs.527 12a. 6p. principal, and interest in accordance with the two mortgages respectively and the costs throughout; that the period of redemption ought to be extended to six months from the date of His Majestys order on the appeal; that there ought to be an order against the first two respondents personally for Rs.527 12a. and interest; and that the case ought to be remitted to the Judicial Commissioner to ascertain the precise amount payable on the above footing. The respondents must pay the appellants costs of this appeal, exclusive of the costs of restoring the same; and, in view of the great delay which took place in the prosecution of the appeal, their Lordships direct that the appellant only be allowed such costs as he would have incurred if he had prosecuted his appeal with due diligence.