Sulaiman, J.:— This is a plaintiff's appeal arising out of a suit for a declaration that a mortgage decree dated 26th July 1922, obtained on the basis of a mortgage-deed dated 5th December 1920 executed by the plaintiff's brother Gulab Chand and hypothesising joint family property was not binding on the plaintiff. It appears that the plaintiff's father, Hardeo Das, carried on business in partnership with his brother-in-law Salyan Mal under the style Hardeo Das Kalyan Mal. He died in 1917 leaving Gulab Chand, his adopted son, and two subsequently born sons, Ratan Chand and Madan Gopal, the latter two being minors. The business in partnership with Kalyan Mal was admittedly carried on till 9th October 1919 on which date there was its dissolution and Kalyan Mal separated. Madan Gopal had in the meantime died. Accounts were made, out standings were divided and liabilities were apportioned. The liabilities, however, exceeded the assets to a very considerable extent and amounted to about Rs. 44,000.

2. On the same date, namely, 9th of October 1919 a business under the style “Hardeo Das Gulab Chand” was started on the same premises by Gulab Chand purporting to carry it on behalf of the family. A new set of books were opened on that date. The balances of the old partnership were not transferred, but the liabilities were debited in a ledger styled Hardeo Das. Subsequently the liabilities were discharged by alienations of the family property with which we are not concerned in this case. Towards the end of 1920 there appears to have been considerable loss suffered in this business the greater part of which was undoubtedly of a highly speculative character. On 2nd September 1920 Gulab Chand applied to the District Judge under the Guardian and Wards Act of 1890 for being appointed a guardian. In his petition he stated that the family was joint, that his younger brother was minor, that the joint business which had been carried on for a long time at the firm styled Hardeo Das Gulab Chand had suffered a loss of about Rs. 35,000 and it was necessary to pay it off by raising money on the security of the family property. Gulab Chand did not state that he was the adopted son of Hardeo Das while his minor brother was the natural born son. Gulab Chand wrongly alleged that the shares of the two brothers were half and half whereas in point of fact Gulab Chand was entitled to only a ¼th share, the rest belonging to Ratan Chand. Apparently there was no objection taken to this application and the District Judge appointed Gulab Chand as the certificated guardian of his minor brother Ratan Chand although the family on the applicant's own showing was a joint Hindu family. On 15th September 1920 Ratan Chand applied for permission to transfer the minor's share in the joint property in order to pay off the debt. The application was most vague. It did not set forth the exact amount of the debt or the particulars of the deed of transfer which the applicant had in contemplation. Apparently without any further enquiry or any fresh notice to the mother of the minor the District Judge on that very day granted the application. The order consists of one word “sanctioned.” It did not comply with the requirements of S. 3 of Act 8 of 1890 and did not recite the necessity or the advantage. Nor did it describe the property with respect to which the permission was given, nor did it specify any condition.

3. Armed with this sanction Gulab Chand acting for himself and as the certificated guardian of his younger brother made a mortgage of part of the joint family property on 5th September 1920 in favour of the present defendant 1 for a sum of Rs. 15,000 bearing interest at the rate of 1 per cent per mensem compounded every three months. It is an admitted fact that the amount so raised was utilized for the payment of debts which had been incurred in connexion with the business styled under the name of Hardeo Das Gulab Chand.

4. In 1920 the mortgagee sued on the mortgage impleading both Gulab Chand and Ratan Chand. The Court appointed Gulab Chand, who was the certificated guardian of his minor brother as the guardian ad litem in the suit. The claim was not contested and a preliminary decree was passed ex parte on 26th July 1922. It is this decree which is impugned in the present suit. The plaintiff attacks it on the ground that he was not properly represented in the former suit as the appointment of Gulab Chand was irregular and improper, that there was no legal necessity for the mortgage and that the amount was actually spent on gambling and wagering contracts.

5. The contesting defendant pleaded that the decree in the previous suit operates as res judicata and cannot be re-opened. It was further pleaded that Gulab Chand as the certificated guardian of the present plaintiff, after having obtained the necessary sanction, had full authority to make the mortgage and the same was binding on the plaintiff. It was lastly urged that the money was required for payment of the debts due from the joint family business and was therefore, for legal necessity.

6. The learned Subordinate Judge has found that the plea of res judicata could not prevail but he has held that the amount had been required for family business and therefore the loan was taken for legal necessity. He has accordingly dismissed the claim.

7. On the question of res judicata the opinion of the Court below is on the authorities undoubtedly correct. The appointment of Gulab Chand as the guardian ad litem of the minor was improper inasmuch as that prevented any plea of the irregular appointment of Gulab Chand or his adverse interest from being raised in the previous suit. No doubt Gulab Chand was the certificated guardian, but no guardian in respect of the minor's interest in the property of an undivided Mitakshara family should have been appointed: Gharibullah v. Khalale Singh . [1903] 25 All. 407. If all the facts relating to the manner in which the sanction had been obtained had been brought to-the notice of the Court it is most probable that the minor's mother or, at any rate, some person other than Gulab Chand would have been appointed his guardian. The suit was on the basis of a deed which had been executed by Gulab Chand himself. It could not be expected that Gulab Chand would repudiate his own transfer or set up a plea that his appointment as the certificated guardan was itself irregular or that no proper sanction had been obtained by him, or even that the debts which had been paid off were gambling debts incurred by himself. As it happened he did not contest the suit and none of the pleas which might have been urged on behalf of the minor were considered.

8. In these circumstances I must on the authorities hold that there was no proper appointment, and that therefore the minor was not properly represented in the former suit. I might refer to the caste of Murli Dhar v. Pitamber Lal . A.I.R 1922 All. 91 and Chiranji Lal v. Syed Ilias Ali . A.I.R 1924 All. 751 and the cases referred to therein.

9. As regards the question whether debts-incurred by a manager in connexion with a family business are binding on the minor members of the family we have the latest pronouncement of this Court in the case of Inspector Singh v. Kharak Singh . A.I.R 1928 All. 403. which is undoubtedly in favour of the appellant. In this case it has been laid down that the manager of a Mitakshara family, even though he be the father, has no authority to start a new business and cannot alienate family property in order to raise money for the purposes of the business. In that particular case, however, money was raised for the purpose of starting a new business of plying motor lorries on hire. No doubt, sitting with other learned Judges, I have expressed a somewhat contrary opinion in earlier cases; but in view of the fact that the present case is itself likely to go before their Lordships of the Privy Council and for the sake of introducing uniformity it is desirable to accept the most resent exposition of the law, even though it be only by another Division Bench, till the controversy is set at rest by their Lordships. I would, however, like to add a few words by way of explanation of the cases decided by Benches to which I was a party, without covering the whole ground over again.

10. In the famous case of Hunooman Pershad Pandey v. Mt. Babooee Munraj Koonweree . [1854-57] 6 M.I.A 393 their Lordships had remarked that the power of the manager to alienate the estate.

Can only be exercised rightly in a case of need br for the benefit of the estate. But where in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate the bona fide lender is not afforested by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded … the lender is bound to enquire into the necessities for the loan, and to Satisfy himself as well as he can with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate.

11. Sir Pramada Charan Banerji, an eminent Judge of this Court, in the case of Tula Ram v. Tulshi Ram . [1920] 42 All. 559, took the passage quoted above as authority for holding that the raising of a loan by a father even for the purpose of acquiring new property, where under the circumstances the transaction was for the benefit of the family which a prudent manager would enter into, was justified. In order to ascertain whether the transaction was such that a prudent owner would consider beneficial, the subsequent event of the debt resulting in a benefit was taken into account. I concurred in that view.

12. In Mahabir Prasad Misra v. Amla Prasad Rai . A.I.R 1924 All. 379 the trade of dealing in elephants had been started by the father himself and had been carried on for some years and the family had benefited by its profits. The money had been borrowed not for the purpose of starting the business which might at the start have been considered speculative, but had been required in the course of the business for continuing it after it had run on for several years. We held that the loan was justified.

13. The Privy Council case of Sanyasi Charan Mandal v. Krishna Dhan Banerji . A.I.R 1922 P.C 237, which will be discussed by me later, was not cited by counsel. The authorities relied upon by us are quoted in the judgment. We considered that the case of Babadin v. Bansraj . [1915] 18 O.C 84 was clearly in point. There Kanhaiya Lal, J., who subsequently became a Judge of this Court, had held that, in case of a family business, even though not ancestral, the manager had implied authority to raise money for the purposes of the business. That was a case under the Mitakshara law and his view appealed to us. The same learned Judge subsequently expressed similar views in the case of Jagmohan Agrahri v. Prag Ahir . A.I.R 1925 All. 618. (I may note that in the report of Mahabir Prasad Misra's case the word ‘sons’ has been by mistake left out in printing after the word “mortgagors” in the last paragraph but one).

14. The case of Jado Singh v. Nathu Singh . A.I.R 1926 All. 511 was in many respects similar to Tula Rain's case, where joint property which was inconveniently situated and was not sufficiently profitable, was sold by a Hindu father and new properties were purchased in lieu of it which resulted in considerable advantage to the family and the transaction being prudent and beneficial was held to be binding on the family. For the interpretation which we put on the expression “benefit of the eatate,” we relied on certain earlier cases of this Court as well as some cases of the Patna High Court. The correct reference to the third case mentioned in the Law Journal and not in the Law Report is Sheo Tahal Singh v. B. Arjun Das . [1920] P.H.C.C 155.

15. The recent case of Inspector Singh disagrees with the view expressed by the Benches of which I was a member and by the Oudh Court. It relies principally on the judgment of their Lordships of the Privy Council in Sanyasi Charan Mandal v. Krishna, Dhan Banerji. If that case lays down a principle applicable to a Mitakshara family, it is absolutely conclusive on the point. But that case affected a family governed by the Dayabhaga law under which the members are tenants-in-common, mere co-owners, who possess distinct, defined and separate shares in the joint property heritable to the heirs of each and without any right of survivorship, as is the case under the Mitakshara law. The members of a Dayabhaga family are groups of persons associated together whose agreements inter se are regulated by the Contract Act. Under that Act a minor cannot consent to become a full partner of a new business, as the relations of the parties rest on contractual arrangement which cannot exist in the case of a minor. When their Lordships, after discussing the provisions of the Indian Contract Act, remarked on p. 570 that it made no difference that the business was conducted by the members of a family governed by the Dayabhaga their Lordships presumably meant that the principles which applied to an ordinary partnership were applicable to a Dayabhaga family, and not necessarily that the same principles are common to both Mitakshara and Dayabhaga families. A Mitakshara family is a unit by itself, and in its dealings with the outside world it acts through its manager. A joint family, as it can own other properties, might also possess a family business, which was started with the family funds and might have been carried on for years and the family might have been benefiting by it or, indeed, be exclusively supported by it, and yet it might not be an ancestral business in the sense of having been descended from a deceased ancestor.

16. In the case of Niamat Rai v. Din Dayal . A.I.R 1927 P.C 121 their Lordships defined a joint family business as being “a business carried on with joint family funds for the benefit of the joint family.” According to the ruling in Inspector Singh's case even if such a family business was started by the father with the family funds and the whole family is being benefited by its profits there would be no authority in the father to raise money for its purposes so as to bind the family as long as there is any minor member in existence. The learned Judges conceded that the only proper time to start a new family business would be when there are no minor members in the family. So that if sons or grandsons are being born from time to time, which is the case in a normal family, no new business of the family can be started by the father during his lifetime though of course he can have a separate business of his own on his sole responsibility. The learned Judges remarked:

The question that we have to consider is whether under the Hindu law a father may be permitted to utilize not only his share, but also the shares of his minor sons for the purpose of embarking upon a trade. That question arose because there the money had been borrowed for the purpose of starting a new trade of plying motor-lorries, and had not been required for the purposes of an existing family business. At the time when the money was raised the venture was purely of a speculative character. But of course in a joint family there are no defined shares, and the specific share to which a member may be entitled on partition would depend on the constitution of the family at the time.

17. The text of Brihaspati that even a single individual may alienate for “kutumbarthe” is not now taken as authorising any one other than the manager to do so. I am not sure that their Lordships in Hanuman Prasad's case necessarily intended to translate this word when they said “for the benefit of the estate.” If a mere translation had been intended, their Lordships would have said “for the sake of the family.” It might just as well be that their Lordships considered this a necessary incident of the powers of the manager in his dealings with the outside world. The rule giving protection to a transferee after bona fide enquiry is certainly not founded expressly or impliedly on any text. It was the logical result of the modern conception of the manager's powers.

18. It is true that in the case of T. Tammireddi v. T. Gangireddi . A.I.R 1922 Mad. 236 the Madras High Court held that a new trade of a highly speculative character started by a Karnavan, without consulting another adult member was not binding on the flatter. In a later vise another Bench of the same High Court in Achutaramayya v. Ratanajee Bhootija . A.I.R 1926 Mad. 323 was inclined to the view that a trade was nonetheless ancestral because it was started only by the father, the finding being that the hardware business had been carried on by the father for the benefit of the family. I might add that the question whether money borrowed by the father on the security of the family property for the purpose of carrying on an existing family business, even though not ancestral, by which the family is benefiting is for necessity or for the benefit of the family, is not necessarily the same as the question whether the ultimate losses of such a business are to fall on the minor members.

19. It may, in this connexion, be pointed out that even assuming that the relations inter se of the members of a joint Hindu family, governed by the Mitakshara Law, are regulated by the provisions of the Contract Act, it is not quite accurate to say that a minor cannot in any sense be a partner in a newly started business. S. 247 clearly provides that a person under the aga of majority may be admitted to the benefits of partnership, but cannot be made personally liable for any obligation of the firm, but the share of such minor in the property of the firm is liable for the obligations of the firm. Although therefore such a minor cannot be made personally liable for the losses suffered by such a firm, it does not necessarily follow that an alienation of a part of the family property by the father for the purpose of supplying money needed by an already existing profitable business belonging to the family cannot be “for the benefit of the estate” within the meaning of the expression used by their Lordships.

20. But the learned Judges in Inspector Singh's case have considered that the rule laid down by their Lordships in Sanyasi Charan Mandal's case was equally applicable to a Mitakshara family. It therefore follows that the validity of the mortgage transaction, when money is borrowed for purposes of an existing business of a family, depends on whether this business had descended from a deceased ancestor or whether it was started by the present members or some of them even though quite a long time might have elapsed since it was started. It would therefore be the duty of the creditor to make enquiries and discover the origin of the particular business. It cannot be expected that he would ordinarily be allowed access to the account books of the borrower's firm, but he might make enquiries in good faith from persons who might be expected to be acquainted with its affairs. If after having come to know that the business is not an ancestral one he advances money, he undoubtedly takes the risk with open eyes. But if unfortunately for him he does not receive the correct information even after due enquiries I am not sure whether the learned Judges meant that he would not be protected. Of course the lender could not be expected to find out whether it was prudent to raise money to continue the business which might not be profitable or to close it down: Niamat Rai v. Din Dayal.

21. Coming to the facts of the present case, there was undoubtedly a commission agency business in the lifetime of the plaintiff's father Hardeo Das carried on in partnership with Kalyan Mai. After the death of the father it was carried on by the sons, only one of whom was a major. Nonetheless it became an ancestral business of the plaintiff's family. Here the business had belonged to the family, and therefore the death of the father did not under Section 253(10) of the Contract Act, dissolve the partnership as the joint family could not die. The present casa is stronger than that of the Dayabhaga family in the case of Sanyasi Charan Mandal v. Krishna Dhan Banerji, where, as regards the ancestral business, their Lordships assumed that the partnership was not dissolved by the death of the father.

22. But when on 9th October 1919, Kalyan Mal separated there was unquestionably a dissolution of the old partnership. Under Section 253(7) of the Contract Act, the partnership was then dissolved as between all the other members.

23. The learned advocate for the respondents relies on the statement of Samer Chand, a witness for the plaintiff, who stated that the old firm of Hardeo Das Kalyan Mal was, after Kalyan Mai's separation, styled Hardeo Das Gulab Chand and that formerly this firm carried on commission agency business but, when the firm was styled Hardeo Das Gulab Chand it began to carry on wagering contracts. He also relied on the statement of the defendant Ram Lal that the business of Gulab Chand and Ratan Chand was in the beginning carried on under the style Hardeo Das Kalyan Mal and afterwards it was carried on under the style Hardeo Das Gulab Chand, and that when Kalyan Mal separated the same shop was styled Hardeo Das Gulab Chand and the same business was carried on there. He also relies on the circumstance that the books of the old firm were closed on 9th October 1919, on which very date the new books were opened and that an outsider seeing that the business of the same character was carried on in the same shop would infer that it was the same firm. The report of the commissioner appointed by us does indicate that at least for a few months after 9th October 1919, business of the same character was carried on as had been carried on between 1917 and 1919, but that afterwards the commission agency business dwindled and forward contracts in the nature of wagering transactions increased enormously. Prom these circumstances the learned advocate for the respondents asks us to infer that it was a continuation of the old firm and therefore an ancestral business of the plaintiff. But the mortgage-deed dated 5th December 1920, in favour of the defendant itself recited that after the shop (Hardeo Das Kalyan Mal) had been discontinued, the executants started a shop with their own funds styled Hardeo Das Gulab Chand, though it was on the same date. The effect of the provisions of the Contract Act certainly is that the old partnership was dissolved and a new business began. This new business was started, not even by a Hindu father bub by a brother. The effect of the ruling in Inspector Singh's case is that this new business was unauthorized and money required for its purposes cannot be treated as a loan binding on the minor member.

24. As a matter of fact on the report of the commissioner the plaintiff's case is stronger still. That report shows that the losses sustained by this new firm were mostly on account of the forward contracts or wagering transactions that were carried on by Gulab Chand in cotton and gold. He points out that no transit charges were debited but only differences were settled. His conclusion is that these large forward contracts were really gambling transactions. Such being the case they would be illegal debts which could not in any event be the subject of legal necessity: Ganpat Rai v. Munni Lal . [1912] 34 All. 135.

25. Having succeeded in showing the nature of these debts, the minor plaintiff in entitled to say that they can in no way be binding on him, with the result that the charge created by the mortgage-leaves the joint property wholly unaffected. It may be a misfortune for the mortgagee that he might not with ordinary diligence have been able to discover the nature of the transactions which had resulted in a loss to the business. But he had clear notice that the former partnership of which Kalyan Mal was a partner had been discontinued and a shop styled under a different name had been started which had incurred debts. In view of the most recent exposition of the law by a Bench of this Court in Inspector Singh's case the mortgagee should not have advanced the money on the security of the joint property. The result, therefore, is that this appeal must be allowed, the decree of the Court below set aside and the plaintiff's suit for declaration decreed with costs in both Courts.

Lindsay, J.:— I agree with my learned brother that this appeal should be allowed. The lower Court was in my opinion right in holding that the decree obtained in the suit on the mortgage of 5th December 1920, is not binding upon the minor appellant Ratan Chand. It is clear that he was not properly represented in that suit for the reasons given by my learned brother. As for the merits of the case they are, I think, with the appellant.

26. On the fact it appears to me to be clearly established that the business begun on 9th October 1919 was a new business and cannot be treated as the continuation of an established family business. Till the date in question there was being carried on a family business which had been going on in the lifetime of the father of Ratan Chand and Gulab Chand under the style of Hajrdeo Das Kalyan Mal, the latter being the brother-in-law of Hardeo Das.

27. That business came definitely to an end by dissolution of partnership on 9th October 1919 when Gulab Chand (representing Hardeo Das) and Kalyan Mal separated and divided between them the liabilities which the partnership had incurred.

28. From the examination of the books of the firm Hardeo Das Gulab Chand which came into existence on the day of the dissolution of the partnership just referred to it is manifest that the business which Galab Chand was starting was in fact a new business. There was no carry over of the balance of the old account. The books undoubtedly represent the beginning of a new business and in view of the recitals in the mortgage-deed of 5th December 1920 it is to my mind impossible for the mortgagee now to assert that the money he advanced was lent for the purpose of financing a business which was nothing but the carrying on under a new name of the ancestral family business which had come down from Hardeo Mal.

29. On this finding, if we follow the latest decision of this Court in Inspector Singh v. Kharak Singh, as I think we ought, we must hold that Gulab Chand who started this new business could not enter into pecuniary engagements which, if they resulted in losses, would be binding upon the interest of his minor brother, Ratan Chand, in the family estate. My learned brother in his judgment has referred to the various cases in which the liability of a minor member of a joint. Hindu family for debts contracted by the manager of the family business has been considered, and it must be admitted that there is a diversity of judicial opinion concerning the question whether the minor's liability is confined to those issues only in which it is shown that the family business is ancestral or whether it extends to other cases in which the business has not descended from an ancestor. There are difficulties in accepting the view that a family business cannot be set a going so long as there are minor members in the family—a view which obviously imposes a fetter upon commercial enterprise by limiting the authority of the managing member to act on behalf of all.

30. On the other hand it is apparent that it would be dangerous to invest the managing member with unlimited discretion in the conduct of a business financed from the funds of the family and indeed it has never been claimed that a managing member has such absolute authority to bind the other members by his acts. He can only bind the others by acts done in the course of prudent management. What is found in the present case from examination of the account books of the new business begun and carried on by Gulab Chand under the name Hardeo Das Galab Chand is that the indebtedness which led up to the making of the mortgage on 5th Deoamber 1920 resulted from reokless dealings in the cotton and gold markets. Gulab Chand, it is proved, gambled heavily in these commodities and incurred huge losses and it would be hard to discover any principle upon which the estate of his infant brother should be made liable to contribute. As my learned brother points out, even in the case where the father is the managing member of the family gambling debts which are treated as tainted with immorality do not bind the infant son. A fortiori they would not bind in the case where the managing member is a brother. Prima facie, therefore, the debts which ware liquidated in the present case by raising money on the mortgage of 5th December 1920 are not binding upon the minor appellant Ratan Chand.

31. The question then is whether the mortgagee, a third person, can insist that they are binding upon Ratan Chand's interest in the ancestral family property mortgaged to him. He may do so if he makes the reasonable inquiries referred to in the well-known case of Hanuman Prasad Pande cited in the judgment of my learned brother. The evidence as to inquiry proceeds from the witness Ram Lal who, as manager for the estate of the idol Sri Thakurji, advanced the money. His statement does not in my opinion disclose that he made unnecessary inquiries. He was told that Galab Chand owed money to a number of creditors, but there is nothing to show that he took the trouble to ascertain how this indebtedness had arisen or what was the nature of the dealings which led up to it.

32. Ratan Lal appears to have relied mainly upon the circumstance that the District Judge had given sanction to Gulab Chand as the certificated guardian of his minor brother to alienate the property to satisfy debts; and it is true that such sanction was, most unfortunately, given without any proper inquiry having been made by the District Judge. Indeed the whole business of guardianship was a blunder for Gulab Chand had no right whatever to be appointed guardian of the property of his minor brother who was with him a member of a joint Hindu family and Ratan Chand, the minor, is entitled to say that neither the appointment of Gulab Chand as guardian of his property nor the sanction to alienate the property given to Gulab Chand as such guardian can be relied upon by the mortgagee so as to bind him (Ratan Chand). I come to the conclusion, therefore, that, even on the assumption that debts incurred in connexion with the starting of a new family business could be made binding upon the property of a minor member of the family, the debts in the present case are, for the reasons just given, not so binding and cannot be enforced under the decree obtained upon the mortgage of 5th December 1920.

D.D

33. Appeal allowed.