1. There has been no investigation into the merits of the case so far as the minor defendants are concerned. Where a plaintiff comes into Court alleging that a mortgage has been executed in his favour by one of the defendants acting on behalf of himself and other defendants, some of whom are minors and all of them constitute a joint family, it is incumbent upon the plaintiff to prove legal necessity for the mortgage, whether the minor defendants' guardian has pleaded the absence of such necessity or not. In Shamsundar Lal v. Acchan Kunwar (1898) 25 I.A. 183 the Privy Council observed that in a suit " on a bond made by a person with restricted power of alienation the defendants are not required to plead the absence of legal necessity for the borrowing. It is for the plaintiffs to allege and prove the circumstances which alone will give A validity to the mortgage. "
2. That was no doubt a case of an alienation by a Hindu widow and here the alienation set up by the plaintiff is by defendant No. 1 as manager of an undivided family. But, as is pointed ' out by their Lordships in the same case, though the position of a Hindu widow is not by any means the same as that of the head of an undivided family, yet even in the latter case, where some of the members of the family are minors, the validity of the alienation by the manager depends on proof of legal necessity for it, because, " the touchstone of the authority is necessity. " The law in fact is that a manager of a joint family has authority to bind it by a mortgage or other alienation only where such mortgage or alienation is for the benefit of the family, or where the mortgagee or alienee enters into the transaction with "the manager after having satisfied himself on bond fide enquiries that there was a necessity for it binding upon the family. Konwur Doorganath v. Ram Chunder Sen (1876) L. R. 41. A.52. Now here the plaintiff himself having alleged in his plaint that the family of the defendants constituted a joint family, that rule of law applies although the parties are Malomedans. That is not disputed before us. But this aspect of the case seems not to have been considered either in the Court of first instance, or in the Court of appeal. The first Court did not consider it, probably because, it came to the conclusion that the mortgage was void for want of codsideration, but the lower appellate Court, having held otherwise on that point ought to have gone further and determined the merits of the case, so far as the interests of the minors were concerned. It is true that their guardian, namely defendant No. 1, did not set up that case, but where minors are concerned, it is the duty of the Court to examine the pleadings and raise such issues in regard to the minors as may be called for by the legal aspects presented by the plaint or the pleadings. It is specially the duty of the plaintiff to raise such issues and if he neglects it, he fails to prove his case against the minor defendants.
3. The second point urged before us is that the defendants are agriculturists and that therefore they are entitled to a decree, making the amount of the debt payable by instalments. This question does not appear to have been raised in either of the Courts below. The plaintiff himself describes the defendants as agriculturists and Mr. Dandekar, the learned pleader for the appellants, has referred us to a conciliator's certificate which is on the record as evidence showing that the defendants are agriculturists. As agriculturists they are entitled to invoke the aid of the provisions of the Dekkhan Agriculturists' Relief Act. Now Section 15(b) of that Act gives the Court the power to make a decretal amount payable by instalments in the course of any proceeding. That power is discretionary, but having regard to the object of that Act, we think, the Court ought to raise that question suo motu, even if it is not raised by the agriculturist, in order to determine whether the circumstances of the cage are such as to call for a proper exercise of the discretion.
4. The third point urged before us in support of this second appeal is that the decree passed by the lower appellate Court is not in accordance with the provisions of Sections 86, 88 and 90 of the Transfer of Property Act. That point we reserve for consideration and disposal after the findings on the issues directed for trial by this order are remitted to this Court by the Court below.
5. The following issues ought to be sent down for the lower appellate Court to determine :-
1. Whether the mortgage in dispute was executed for an actual legal necessity binding on the family to which the defendants belonged ? If not, whether the plaintiffs father lent his money on the mortgage bona fide after having honestly made sufficient enquiries and ascertained that there was a legal necessity for the mortgage?
2. Whether the defendant No. 1 executed the mortgage in the capacity of manager of the family, for and on behalf not only of himself but also of the minor defendants ?
3. Whether the amount of the mortgage ought to be made payable by instalments having regard to the condition and circumstances of the defendants and their family and, if so, what the amount of instalments should be ?
6. We notice that defendant No. 1 has acted until now as guardian ad litem of the minors, but having regard to the fact that the mortgage executed by him is in question, we think it desirable that some other person in the discretion of the District Judge should be appointed their guardian for the purpose of the enquiry which is hereby directed to be made. It will be for the District Judge to appoint the Nazir or some other fit person as guardian in the place of defendant No. 1.
7. Parties will be at liberty to give fresh evidence upon the issues and after the guardian to be appointed has put in his written statement on behalf of the minors, it will be for the Subordinate Judge to frame and try such other issues also as may arise upon the pleadings.
8. Findings upon all the issues to be returned within four months.