Kulwant Sahay, J.This appeal arises out of a suit instituted by the plaintiff appellant for a declaration that two decrees obtained in two mortgage suits by defendant 1, Manna Lal, and the sales of the mortgaged properties in execution of those decrees were not binding on him, and for recovery of possession with mesne profits of his share in the mortgaged properties.

The plaintiff is a member of a Hindu joint family. The two mortgages, (1) dated 10th November 1906 and (2) dated 26th January 1908, were executed by Pokh Narain Singh, who is otherwise called Bhabu Singh, the uncle of the plaintiff in favour of defendant 1, Manna Lal.

2. The first mortgage was for a sum of Rs. 600, and it carried interest at Rs. 1-4-0 per cent per mensem and compound interest at the same rate with six monthly rests. The necessity stated in the bond for incurring this loan was to meet the expenses of certain cases relating to a village Onawa belonging to the joint family. The second bond of January 1908 was for a sum of Rs. 9,625. It was executed in renewal of a prior mortgage, dated 5th June 1895 executed by Bishnu Prasad Singh, the father of Pokh Narain Singh and the grandfather of the plaintiff, for a sum of Rs. 2,000, in favour of Bihari Lal, the uncle and predecessor-in-title of defendant 1 Manna Lal. The bond of 1895 was executed in lieu of a prior debt of Rs. 585, and for a cash advance of Rs. 1,415, which was stated in the bond to have been borrowed for paying the Government revenue of the estate and for meeting the marriage expenses of the son of the executant. In evidence, it is sought to be proved that the son who was married was Hargobind Prasad, the father of the present plaintiff.

3. This debt of Rupees 2,000, carried interest at Rs. 1-4-0 per cent per mensem and compound interest at the same rate with six monthly rests. It was further provided in this bond of 1895 that the entire amount of principal with interest should be paid within a year, and after the due date of payment if the debt was not satisfied the whole amount was to carry interest at Rs. 2-8-0 per cent per mensem and compound interest with six monthly rests at the said increased rate.

The bond of 1908, which was in renewal of this bond of 1895, was for a sum of Rs. 9,625 which was the amount found due on the bond of 1895 on calculating interest thereon at Rs. 1-4-0 per cent per mensem and compound interest at the same rate; the enhanced rate of interest of Rs. 2-8-0 was not charged and there was some remission, and the sum of Rs. 9,625, was arrived at in this way.

4. The rate of interest provided for in the bond of 1908 was Re. 1 per cent per mensem and compound interest with six monthly rests. The due date of payment was two years from the date of the execution of the bond and it was provided that after the expiry of the due date interest would be charged at Rs. 1-8-0 per cent per mensem and compound interest at the same rate with six monthly rests. In the bond of 1895 shares in the three of the joint family properties were mortgaged. In the renewed bond of 1908 the three properties which were mortgaged in the first bond were mortgaged and in addition to these three properties some other properties also were given in mortgage. No payment having been made two suits were instituted by defendant 1 to enforce the two mortgages of 1906 and 1908. Suit No. 77 of 1914 related to the mortgage of 1906 and was for the recovery of a sum of Rs. 1,928, odd annas; and suit No. 78 of 1914 was on the basis of the mortgage of 1908 and it was for the recovery of a sum of Rs. 27,977 odd. In both the suits all the members of the joint family, adult as well as minors, were impleaded as defendants, besides other persons who had acquired interest in the mortgaged properties subsequent to the mortgages.

5. The plaintiff and his elder brother who were impleaded as defendants were minors and Pokh Narain Singh was nominated by the mortgagee the plaintiff of those suits as their guardian ad litem. Notices appear to have been properly served on Pokh Narain Singh as well as on the minor defendants in the mortgage suits and as there was no appearance on behalf of the proposed guardian an application was made for appointment of another guardian ad litem of the minors. The Court appointed a pleader, Babu Kiran Chandra Sen, as guardian ad litem for the plaintiff and his elder brother as well as for the two minor sons of Pokh Narain Singh.

6. After the appointment of the pleader guardian, Mt. Anandi Kuar the grandmother of the plaintiff filed an application that she ought to be appointed the guardian ad litem for the plaintiff and has elder brother, and the Court after notice to the pleader guardian appointed her as the guardian of the plaintiff and his elder brother. Mt. Anandi Kuar as such guardian ad litem filed a written statement in each of the suits in which she took all possible objections on behalf of the minors, but at the hearing of the suits she did not appear and the suit proceeded ex parte as against the plaintiff and his elder brother. The other adult members of the family also did not enter appearance although a written statement had been filed on behalf of Guru Prasad Singh, an adult member of the family. The suits were contested by the pleader guardian ad litem Babu Kiran Chandra Sen on behalf of the two minor sons of Pokh Narain Singh.

7. The two suits were however ultimately decreed in favour of the mortgagee on contest as against the minor sons of Pokh Narain Singh and ex parte as against the other defendants. The judgment in the two suits was pronounced on 5th May 1916. Thereafter two applications were made by Mt. Anandi Kuar on behalf of the plaintiff and his elder brother for setting aside the ex parte decrees under Order 9, Rule 13, Civil P.C. These two applications were dismissed by the Subordinate Judge and appeals against the order of dismissal were also dismissed by the District Judge and by the High Court. The sale of the mortgaged properties in execution of the decrees took place on 20th September 1917, and they were purchased by the mortgagee decree-holder himself. Applications were then filed for setting aside the sale on behalf of Pokh Narain Singh under the provisions of Order 21, Rule 90, Civil P.C. and these applications were also dismissed.

8. It may be mentioned that a few days before the date fixed for the sale a regular suit had been instituted by Anandi Kuar, which was suit No. 234 of 1917, to set aside the two ex parte decrees on the ground of fraud and an application was made for issue of an injunction restraining the sales during the pendency of the suit. Injunctions were issued, but on the objection of the mortgagee decree-holder they were withdrawn and the Sales took place as stated above. Thereafter default was made in payment of the court-fee on the plaint and suit No. 234 was dismissed for default.

The mortgagee decree-holder took formal delivery of possession of the properties purchased by him in January 1918 and has since then continued in possession thereof. The present suits were instituted on 18th December 1926, for setting aside the two ex parte decrees and the sales held thereunder on the ground of fraud and collusion between the mortgagee Manna Lal and Pokh Narain Singh and Guru Prasad Singh, the adult male members of the joint family of the plaintiff, and also on the ground that there was no proper representation of the plaintiff by a guardian in the mortgage suits.

9. It is alleged that the mortgages were invalid as not being for any legal and justifying necessity or for the benefit of the family and that Pokh Narain Singh and Bishun Prasad Singh were not the kartas of the joint family and they had no right to execute the mortgages in respect of the joint family properties. The plaintiff alleged that although he came to know of these fraudulent decrees and sales in the year 1919, still as he was then a minor and attained majority only on 12th March 1924, the suits instituted in December 1926 were within the period of limitation. It is stated that his elder brother Mahadeo Saran Singh had not been heard of for a large number of years and was believed to be dead.

10. Defendants 1 and 16, who was the purchaser of some of the mortgaged properties from defendant 1 after the execution sale, only contested the suit. Their defence was that there was no fraud or collusion between Manna Lal and Pokh Narain and Guru Prasad Singh and that the plaintiff was properly represented by a duly appointed guardian ad litem; that the mortgages were valid and were for necessities of the joint family; and that the suit was barred by res judicata, by the operation of Order 21, Rule 92, Civil P.C., and by limitation inasmuch as the plaintiff had attained majority more than three years before the suit. The learned Subordinate Judge in a very careful and well-reasoned judgment has found all the points in favour of the defendants and has dismissed the suit.

11. In this Court the findings of the Subordinate Judge have been assailed on almost all the points. After a careful consideration of the arguments advanced and of the evidence in the case, I find myself in agreement with the Subordinate Judge on all the points except on the question of limitation.

The first point upon which great stress was laid by the learned advocate for the appellant was the question as regards the representation of the plaintiff in the mortgage suits by a properly appointed guardian.

12. I have already said that at first Pokh Narain Singh was nominated by the mortgagee plaintiff of the mortgage suits as the guardian ad litem of the minor defendants in the suit. Notices provided for by Order 32, Rule 3(4) were duly served upon the minor and the proposed guardian and there is no dispute on this point. Pokh Narain Singh did not appear and express his consent to act as the guardian ad litem, and as a matter of fact he could not properly act as guardian inasmuch as he could not very well object to the validity of the mortgages executed by himself. The mortgagee plaintiff thereupon applied to the Court for appointment of another guardian and the Court appointed a pleader Babu Kiran Chandra Sen as the guardian of the present plaintiff as well as the other minor defendants in the suit. This appointment was made on 1st February 1915.

13. On 16th March 1915 Mt. Anandi Kuar, the mother of Pokh Narain Singh and the grandmother of the present plaintiff, filed an application (Ex. P) in suit No. 77 and Ex. P-1 in suit No. 78, in which she stated that she was all along the guardian of the present plaintiff and of his elder brother and had acted as such in other suits and that she had no interest adverse to the minors. She accordingly prayed that she may be appointed as guardian of the minors, the present plaintiff and his elder brother, who were defendants 4 and 5 in the mortgage suits. The learned Subordinate Judge heard the pleader for the lady and in the presence of Babu Kiran Chandra Sen ordered that she be appointed guardian ad litem of the two minor defendants, viz. the present plaintiff and his elder brother, in place of Babu Kiran Chandra Sen, and he directed Mt. Anandi Kuar to file an affidavit in support of her petition. AL (SIC) WAS accordingly made by Kuldip Sahay who was her karpardaz and it is Ex. 9 in the suit . Thereafter on 7th June 1915, Mt. Anandi Kuar as such guardian ad litem filed the written statements (Exs. R and R-1) in the two mortgage suits in which she took all possible objections as regards the validity of the mortgages and as regards there being no legal necessity for the execution thereof and the family having derived no benefit thereby.

14. She stated that there was no need for taking the loans and that Pokh Narain Singh was not the karta of the joint family. She further objected to the compound integrate and the enhanced rate of interest after the due date and she alleged that the two minor defendants had been living after the death of their father in their maternal grandfathers house in mauza Teus and that they were in no way benefited by the loans. As regards the bond of 1908, she alleged that Pokh Narain Singh was never the guardian of the two minor defendants and that Bishnu Prasad Singh who had executed the mortgage of 1895, and Pokh Narain Singh who had executed the two mortgages in suit ware not the kartas of the joint family, the real kartas being Bishambhar and after his death his son Guru Prasad Singh.

15. There was a further objection that there was no necessity to execute the renewed mortgage of 1908, by mortgaging several other properties in addition to those already mortgaged in the bond of 1895. There was an allegation of collusion and concert between the plaintiff in the mortgage suits and the other defendants, viz. Pokh Narain Singh and Guru Prasad Singh. The pleader guardian ad litem Babu Kiran Chandra Sen had also filed written statement on behalf of the two minor sons of Pokh Narain Singh in which he had taken most of the objections which were taken by Anandi Kuar in her written statement. Postponements were obtained by Mt. Anandi Kuar on some of the dates fixed for the hearing of the suits and ultimately when the suits were actually taken up for hearing she did not appear and press the objections taken by her in the written statement.

16. The pleader guardian ad litem, however, did contest the suits on behalf of the two minor sons of Pokh Narain Singh. The learned Subordinate Judge considered the objections pressed by the guardian and overruled them and he passed the decree in the mortgage suits as stated above. Now it is contended on behalf of the appellant that the appointment of Mt. Anandi Kuar was not in accordance with law inasmuch as no notice as regards her appointment was served on the minor and that such a notice was necessary under the provisions of Order 32, Rule 3, Sub-rule (4). This contention is obviously not sound. Notice required by Sub-rule (4), Rule 3, has to be served only at the initial stage and not for the appointment of a new guardian in place of a guardian already appointed. The procedure in this respect is laid down in Rule 11, Order 32 and no provision is there made for the service of notice on the minor. Reference is made on behalf of the appellant to Rajendra Prasad and Another Vs. Probodh Chandra Mitra and Others, where it was held that under Order 32, Rule 3, Sub-rule (4), Civil P.C., a Court is bound to issue notice to the minor and his natural guardian, before it appoints a guardian ad litem, and the order of appointment of a guardian ad litem without compliance with the said provision is without jurisdiction.

17. But that was a case of the appointment of a guardian at the initial stage and not a case of a change of guardian after a guardian had already been appointed. This question, was considered in two later decisions of this Court in Ram Sundar and Another Vs. Amrit Pajiyar and Another, and Sri Thakur Radha Krishna Gopal Lalji v. Lakshmi Narayan AIR 1923 Pat 385 . In the latter of these two decisions it was held that there was nothing in Order 32, Rule 3 which required a notice to be given to the minor after the nominated guardian refused to act and the Court appoints another person as guardian ad litem, and reference was made to Order 32, Rule 11, which did not require a notice to the minor where a guardian is discharged and a fresh guardian ad litem is appointed by the Court; and the previous decision in the case of Rajendra Prasad and Another Vs. Probodh Chandra Mitra and Others, was explained.

18. There was therefore no illegality in the appointment of Mt. Anandi Kuar for want of notice to the minor.

Next it is contended that as a matter of fact there was no representation of the minor in the mortgage suits by Mt. Anandi Kuar and that the petition alleged to have bean filed by her for her appointment was not her petition but it was all the doing of Pokh Narain Singh in collusion with the mortgagee Manna Lal. (After discussing the evidence on this point and holding that collusion has not bean proved, and that ,the plaintiff was properly represented by Anandi Kuar, the judgment proceeded).

19. It is next contended that the guardian ad litem Mt. Anandi Kuar was guilty of gross negligence and that the present plaintiff was very prejudicially affected by her conduct in not prosecuting her defence in the mortgage suits. The mere fact that the guardian ad litem did not appear at the hearing of the suit and prosecute the defence, would not necessarily go to show that the guardian was grossly negligent. A guardian ad litem is not bound to defend a suit if there is no valid defence to take. It is contended that the points taken in the written statement were all good and substantial points and ought to have been placed before the Court. Now most of the points raised by Anandi Kuar in her written statement had been raised by the pleader guardian ad litem, Babu Kiran Chandra Sen and they were pressed and considered by the Subordinate Judge, and he came to the finding that there was no substance in those points,

20. The only point which does not appear to have been taken by Babu Kiran Chandra Sen and which was taken by Anandi Kuar in her written statement, was the act of Pokh Narain in giving more properties in mortgage in the bond of 1908 than those given in the bond of 1895. It is said there was no justification for encumbering all the joint family properties. On examining however the matter in greater detail it appears that there is no substance in this objection. The additional properties mortgaged in the bond of 1908 consisted of small shares in village Onawa comprised in four tauzis, and small shares in Saidpur Dumrawan Shahpur Dumrawan, otherwise called Ramibigha (tauzi No. 974) and Mouza Asthana (tauzi No. 267).

21. They were all of small value and in the subsequent sale fetched a comparatively small sum as compared with the three villages which had been mortgaged in the bond of 1895 and having regard to the sum secured by the mortgage of 1908, it cannot be said that it was an imprudent act on the part of Pokh Narain Singh in giving this security. There was not the slightest chance of this objection succeeding had it been pressed by Anandi Kuar in the two mortgage suits.

22. It is further contended that the objection as regards the validity of the mortgages for want of justifying and legal necessities ought to have been urged in the mortgage suits. It is true that they were not urged; but the point has been elaborately discussed before us, and after considering the arguments advanced and looking in the evidence, we are not in a position to say that there was no justifying necessity for the loans. As regards the loan incurred by the original bond of 1895, executed by Bishun Prasad Singh, it is to be noted that that was at a time when neither the plaintiff nor his elder brother was born; in fact the loan appears to have been taken for the marriage of Hargobind Prasad the father of the present plaintiff, and no serious attempt has been made to show that there was no necessity for the loans of Rs. 2,000, for which the bond of 1895 had been executed.

23. But it is contended that there was no necessity to execute the renewed bond of 1908. At the time this bond had been executed the personal remedy under the bond of 1895 had become barred by limitation and the mortgagee could proceed to realize the sum covered by the bond of 1895 by the sale of those three mortgaged properties only which were given in mortgage in the bond of 1895. Now it has already been shown that the bond of 1895 carried interest at Rs. 1-4-0 per cent per month with compound interest at six-monthly rest and there was an enhanced rate of interest after the due date.

24. In the renewed bond of 1908 enhanced rate of interest was not charged and some remission was made even in the interest at Rs. 1-4-0 per cent per mensem. Moreover the manager of a joint family cannot be said to act imprudently in renewing an old mortgage on more favourable terms instead of allowing the properties to be sold for realization of the sum due on the old mortgage: the rate of interest in the renewed bond was reduced to 1 per cent and time was obtained within which the family, if it was in a position to do so, could pay off the debt. It is said that Pokh Narain Singh was not the karta of the family and that he had no power to mortgage the family properties. The evidence shows that Pokh Narain and before him his father Bishun Prasad were transacting the business of the family. It is true that Bishambhar Singh and his son Guru Prasad Singh, who were in the junior branch of the family, were said to be the kartas of the family; but Bishun Prasad and his son Pokh Narain Singh who came from the senior branch, appear to have been transacting the business separately, although the family was joint. A partition suit was instituted by Pokh Narain Singh; against his uncle Guru Prasad Singh; that suit was ultimately compromised and the petition of compromise filed in that partition suit is Ex. W in the case.

25. On reference to the document Ex. W it appears that the two mortgages of 1906 and 1908, executed by Pokh Narain were treated as valid family debts and Guru Prasad Singh and his branch of the family undertook to pay a little less than a half of the money due under the bond of 1908, although the whole of the money due under the bond of 1906 was allotted to Pokh Narain Singh. It further appears on looking at Schedule 6 of the petition of compromise (Ex. W) that a large number of bonds had been executed by Pokh Narain Singh and Bishun Prasad Singh separately from Guru Prasad Singh and all these bonds were considered as family debts and were apportioned amongst the members of the family. Assuming therefore that Pokh Narain or Bishun Prasad were not the kartas of the family and that Bishambhar Singh and Guru Prasad Singh were the kartas, then the kartas of the family did as a matter of fact accept these two bonds as having been executed for justifying family necessities and took upon themselves the liability to pay the money covered by them.

26. There is therefore no substance in the contention that the mortgage bonds were invalid because they were not executed by the karta of the family or that they were not for justifying necessities. Moreover it appears that a decree was made in terms of the compromise and the present plaintiff was a party to the partition suit and was represented by Pokh Narain Singh as his guardian. Although the order-sheet or the decree is not on the record, yet it must be assumed that before making the decree upon the compromise the Court did satisfy itself that it was for the benefit of the minor.

27. Reference has been made to the observations of the Privy Council in the well-known case of Hunoomanpersaud Pandey v. Mt. Babooee Munraj Koonweree. (1856) 6 MIA 393 and it is contended that the power to mortgage a joint family property can only be exercised in case of need for the benefit of the estate and that there was no need to execute a renewed bond in 1908 nor was it executed for the benefit of the estate. It is clear from the evidence that the family was unable to pay the debt of 1895. It also appears that there was pressure on the estate inasmuch as the period of limitation for bringing a suit on the mortgage of 1895 was about to expire and the mortgaged properties would have been sold if the bond had not been renewed. There was also benefit to the estate inasmuch as the rate of interest was reduced and time was obtained to pay up the debt. On a consideration of these points it appears to me that the guardian ad litem, Mt. Anandi Kuar, cannot be said to be guilty of gross negligence in not pressing the points raised in her written statement.

28. As regards the mortgage of 1906 the necessity recited therein was to meet the expenses of the case relating to Onawa. There is evidence on the record that there were several criminal cases in respect of this village. The order-sheets in the proceeding u/s 144, Criminal P.C., [Exs. A (aaa) and A (aaa-1)], the judgment in the criminal case u/s 147, I.P.C., in which Pokh Narain Singh and others were the accused [Ex. Z (zz)], as well as the oral evidence on the record show the existence of the criminal cases. It is said that the 144 proceeding was finished before the date of the mortgage which was 10th November 1906; but it is possible that the costs were incurred by taking verbal loans and they were repaid by the money raised under the bond of 1906. It is next argued that there is nothing on the record to show that the income of the joint family Was not sufficient to meet the expenses of the criminal cases; but it was not necessary for the lender to inquire as regards the previous management. It was sufficient to justify the loan if there was a need to borrow money. Moreover, it appears from the judgment in the mortgage suits that the Court was satisfied that the mortgagee had made proper inquiries before advancing the loans. On a consideration of the entire evidence, I am of opinion that the plaintiff was properly represented in the suits; there was no negligence on the part of the guardian in not defending the suit; and there was no collusion or fraud between the mortgagee plaintiff and Pokh Narain Singh and the other adult male members of the family in the matter of the mortgage suits.

29. In this view of the case it is not necessary to examine in detail the issues in bar. On the question of limitation however the learned Subordinate Judge has found that the plaintiff has failed to establish that he attained majority within three years of the suit. On this point a question was raised whether the period of limitation was three years under Article 95 or one year under Article 12, Lim. Act. Sir Sultan Ahmed on behalf of the respondents has argued that the present suit was one under Article 12 inasmuch as it was a suit to set aside a sale in execution of a decree of a civil Court. The suit however is based on the ground of fraud and Article 95 is clearly applicable. In the Court below the parties proceeded on the assumption that Article 95 applied. It is not necessary to refer to the large number of authorities cited at the Bar on this point.

30. It is sufficient to refer to the decisions of this Court in Kumar Ramishwar Narain Singh Vs. Mahabir Prasad and Others, where it was held that if a sale is sought to be set aside on the ground of fraud the specific Article 95 ought to be applied in preference to Article 12 which is a general article. In Jugdeo Singh v. Ajodhya Singh AIR 1919 Pat 134 it was held that a suit for recovery of possession of immovable property on the ground that the decree, on the basis of which the defendants dispossessed the plaintiff, was obtained by fraud is governed by Article 95 and not by Article 144, Lim. Act. In Bhan Prasad Choudhury and Others Vs. Bhirgu Nath Choudhury and Others, the suit was for redemption by the Mitakshara sons who had not been impleaded in the mortgage suit against their father and there does not appear to be any allegation of fraud, as it was a suit purely with prayer to set aside the sale on the ground that the plaintiffs were not parties to the mortgage suit in which the decree was passed.

31. As regards the question whether the plaintiff attained majority within three years of the suit, it is necessary to find when the plaintiff was born. According to him he was born on 12th March 1906 and therefore attained majority on 12th March 1924. The defendants do not give any specific date but merely assert that he had attained majority more than three years before the suit. The plaintiff has produced a horoscope alleged to have been prepared by Murlidhar Pande who was a member of a Brahmin family who officiated as purohit (priest) of the plaintiffs family. Murlidhar is dead and the horoscope has been proved by his brother Shamlal Pande (P.W. No. 7). Shamlal in his deposition states that the horoscope was written by his brother Murlidhar in his presence, that it is the horoscope of the plaintiff Madho Saran Singh, that the first portion of the horoscope was written on the date of the plaintiffs birth and the remaining portion was written within a week of it, and that the date of birth stated in the horoscope was the correct date.

32. The learned Subordinate Judge appears to be of opinion that much reliance cannot be placed upon it as it can be prepared at any moment and that a look at the horoscope would show that the whole of it was written at one time. These do not appear to be sound reasons for discarding the horoscope. It is not possible to say by merely looking at the document that the whole of it was written at one time. As regards the admissibility of the horoscope, the learned Judge has relied upon a decision of this Court in Kumar Ganganand Singh and Others Vs. Maharaja Sir Rameshwar Singh Bahadur and Another, and has held that the document was admissible in evidence. Sir Sultan Ahmed refers to Satis Chunder v. Mohendro Lal (1890) 17 Cal 849, where it was held that the horoscope was not admissible u/s 32(6), Evidence Act. But in the present case the horoscope is said to be used as evidence not u/s 32(6) but in order to corroborate the evidence of a witness Shamlal Pande who says that it was written in his presence on the date of the plaintiffs birth and it helps him to fix the date of the birth. Whatever may be said as regards the horoscope, the Hathchita (Ex. 5) of the chaukidar containing the date of birth of the plaintiff is certainly admissible in evidence. It was no doubt written by the dafadar Neyamat Husain (P.W. 6) as the chaukidar was illiterate; but Rule 126(a) at p. 61 of the Police Manual provides that the Hathchita is to be kept by the chaukidar in the prescribed form and that in case of his illiteracy it could be written up by someone else.

33. Neyamat Husain swears that he wrote the entry at the request of the chaukidar who was illiterate. We have examined this Hathchita and we are satisfied that it is a genuine document and the entry therein about the date of birth of the plaintiff is a genuine entry. I am therefore of opinion that plaintiff has established that he attained majority within three years of the suit. The suit however fails on the merits and the appeal must be dismissed with costs.

Courtney Terrell, C.J.

34. I entirely agree and have nothing to add.