Patna High Court
Trilok Singh vs Dwarka Prasad Gupta And Ors. on 17 December, 1957
Equivalent citations: AIR1958PAT262, AIR 1958 PATNA 262
JUDGMENT Sinha, J.
1. This appeal is by defendant No. 2 to an action for a declaration that two mortgages created by defendant No. 3 on 3-3-1948 and 24-8-1948 were not binding on the joint family of the plaintiffs and defendant No. 3, and for recovery of possession of the houses given in mortgage and also for mesne profits.
2. There was one Ramautar Sah, husband of plaintiff No. 3. He had three sons, (1) Rampratap (defendant No. 3), Dwarika Prasad (plaintiff No. 1) and Bishwanath (Plaintiff No. 2). The properties in suit were acquired by Ramautar, who died on 20-6-1942, leaving him surviving plaintiffs 1 to 3 and defendant No. 3 as his heirs. Plaintiff No. 1 end defendant No. 3 had executed a registered power of attorney in favour of plaintiff No. 2 on 23-12-1942. Thereupon, plaintiff No. 2, on 27-3-1944, redeemed a mortgage created by his father, on 24-5-1941, for Rs. 2,500/- in favour of defendant No. 1. It is said that defendant No. 1, therefore, had transactions with the family and knew the family very well.
Thereafter, defendant No. 1, in the name of defendant No. 2, took a usufructuary mortgage from defendant No. 3 on 3-3-1948. it is said that defendant No. 3 was not the karta of the joint family nor was the loan taken for legal necessity, that no benefit accrued to the family thereby, and that, though the mortgage deed was taken in the name of defendant No. 2, defendant No. 2 was merely a benamidar for defendant No. 1. On 24-6-1948, again, defendant No. 3 executed another usufructuary mortgage bond and a simple bond in favour of defendant No. 1 in the name of defendant No. 2. These mortgages were in respect of three houses in the town of Ranchi. The plaintiffs' case is that defendant No. 3 used to drink heavily and was leading a spendthrift life and he was prevailed upon by defendants 1 and 2 to enter into these transactions, although there was no justifying necessity to the family for these transactions. Defendant No. 1 is the maternal uncle of defendant No. 2.
3. These two defendants filed separate written statements. According to the defendant No. 1, defendant No. 3 was the karta of the family, that the mortgages were for legal necessity of the family and that defendant No. 2 was not his benamidar. Defendant No. ,2 raised several defences. According to him, plaintiff No, 3 was not the widow, of Ramautar; the death of Ramautar on 20-6-1942 was denied and it was claimed that the mortgages in question had been taken by him and he was not a benamidar for defendant No. 1. He alleged that the mortgages were created for legal necessity and for valuable consideration and that he had made bona fide enquiry about the necessity of the loan and was satisfied from the enquiry that the family was in need of money.
4. The Court below has come to the findings that plaintiff No. 3 is the widow of Ramautar, that Ramautar died on 20-6-1942, that defendant No. 1 had not advanced the money, that the consideration wag paid by defendant No. 2, who was not the benamidar for defendant No. 1, and that defendant No. 3 was the karta of the family. The learned Subordinate Judge, however, found that there was no legal necessity for the transactions, nor was there any benefit to the family out of these transactions. It was also found that defendant No. 1 was a tenant in a portion of one of the houses, and, although the Court below gave a decree for ejectment of defendant No. 2 from the mortgaged properties, it held that, as defendant No. 1 was occupying a portion of one of the houses as a tenant he should not be ejected from that particular portion of the house.
5. Defendant No. 2, as I have said, has filed this appeal, arid there is a cross-objection on behalf of the plaintiffs which is against the order of the Court below to the effect that defendant No. 1 should not be ejected from the portion of the house he was occupying, and against the findings that defendant No. 2 was not a benamidar for defendant No. 1 and that defendant No. 3 was the karta of the joint family.
6. Mr. Government Advocate, on behalf of the appellant, has submitted that, upon the findings arrived at by the Court below, the Court, in the circumstances of this case, should direct that the mortgagor, namely, defendant No. 3, should exercise his proprietary right that is, of partition and that the consideration paid by defendant No. 3 should be made payable out of the property that should go on partition to the share of defendant No. 3; and, in support of his submission, he has referred to the case of Mahanth Ramsunder Das v. Rarhamdeo Narayan Thakur, 14 Cal WN 552 (A). In that case what happened was that some members of a joint family had made a representation to the mortgagee that they had power to charge the property, and, in a suit for a declaration that the mortgages executed by those members of Jhe family were not binding upon the family, it was held that, as the mortgagors, the members of the joint family, had represented to the mortgagee that they had the power Jo charge the joint family property with the debt, these members, namely, the executants of the mortgages, were bound to make good their representation by exercising such proprietary right over it as they possessed, namely, the right of partition.
It was further held that the mortgages, so far as the specific shares of the mortgagors were concerned, were void, but that the Court was entitled to direct that the joint property be held in specific shares and in such a case the lien of the mortgagee Should be fixed to the share of the mortgagors thus specified. In the first place, that case was not a case where the karta of the joint family had incurred certain debts, and, secondly, the members of the joint family, who had executed the mortgages, had made certain representation; and, upon the facts of that particular case, their Lordships gave relief to the mortgagee on equitable grounds. In my judgment, however, the principles of equity have no application where law is certain.
It is the established law that the karta of the Joint Mitakshara family has no right to alienate a property or to contract debts which might be chargeable on the properly of the joint family, except in cases where it is for legal necessity of the family for for benefit to that family. Mr. Chaudhuri, on behalf of the respondents, has referred in this connection to certain decisions of the Privy Council and of this Court, which I would consider presently.
7. In Lachhman Prasad v. Sarnam Singh ILR 39 All 500: (AIR 1917 PC 41) (B), some of the members of a joint Hindu Mitakshara family had joined in borrowing a certain sum of money on the security of the property of the joint family, of which the executants were the heads, without the consent of the other coparceners, and it was found that the mortgage was prima facie invalid as against the family, as being neither for antecedent debt nor for any proved necessity of the joint family. In these circumstances, it was held that the mortgage could not be upheld on the principle laid down in the case of Mahabeer Prasad v. Rarnyad Singh, 20 Suth W.R. 192 (C), which was a case on its own special facts, which did not lay down a general principle of law.
It was also held that the law laid down in the case of Madho Parshad v. Mehrban Singh ILR 18 Cal 157 (D) by the Privy Council governed that case and, according to that case, the mortgage in suit was invalid as against the sons and grandsons of the mortgagors. I might add that the case of Mahabeer Prasad, 20 Suth WR 192 (C) had proceeded on the same lines as the case of Mahanth Ramsunder Das, 14 Cal WN 552 (A), cited by Mr. Government Advocate. In the case of Manna Lal v. Karu Singh, 1 Pat LT 6: (AIR 1919 PC 108 (2) ) (F), it was laid down that where the mortgagee failed to prove justifying necessity, no decree could be passed even against the share of the karta executant, the transaction being void altogether. In Jatadhari Singh v. Dukhi Singh, 4 Pat LT 64: (AIR 1923 Pat 197) (F), a Bench decision of this Court laid down that there was no room for the application of any equitable doctrine where the purchaser or the mortgagee dealing with the karta of a joint Mitakshara family failed to prove legal necessity or honest enquiry for the law did not permit the alienee to act upon the representation unless he satisfied himself that the representation made by the karta was true. It was also observed that the case would stand on a different footing if, in addition to the representation that the karta had power to charge the joint family property, there was a further undertaking that the karta, namely, the executant, would make good the representation by partition or otherwise, and in such a case the Court had power to compel him to do that which he undertook to do; and where there was no such undertaking, a Court had no power, in a suit brought to set aside the alienation of joint family property, to direct that the share of the executant should remain charged for the payment of any money due to the alienee, the transaction, in the absence of legal necessity, being void altogether.
This case considered the cases reported in 20 Suth WR 192 (C) and 14 Cal WN 552 (A) (referred to above), and they were expressly dissented from. The case reported in 14 Cal WN 552 (A) also came for consideration before another Bench of this Court in Amar Dayal Singh v. Har Pershad Sahu 5 Pat LJ 605: (AIR 1920 Pat 433) (G) and their Lordships observed as follows:--
"The only question for determination in that case 14 Cal. W. N. 552 (A) was the form of the decree. The right of the mortgagee to relief in one form or another was assumed without argument. The assumption upon which the judgment is based may possibly be justified on the ground that there was a special representation by the mortgagors. But in view of the decision in ILR 39 All 500 : (AIR 1917 PC 41) (B), it can no longer be regarded as an authority for the proposition put forward on behalf of the respondents in the present case .....
The result of the authorities appears to me to be that a mortgage of the whole or a share of the joint family property of a Mitakshara family unless justified by legal necessity or by an antecedent debt or assented to by the other members of the family is void and inoperative as against the property hypothecated and gives the mortgagee no rights even against the mortgagor's undivided share". I respectfully agree with the observation just quoted. Lastly, I come to the case of Brij Narain Rai v. Mangla Prasad Rai 5 Pat 'LT 1: (AIR 1924 PC 50) (H), where, amongst several propositions of law laid down, their Lordships said as follows:
"The managing co-parcener of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity."
I have no hesitation, therefore, in overruling the contention of Mr. Government Advocate, and I hold that, upon the findings arrived at by the Court below to the effect that there was neither a bona fide enquiry made nor legal necessity established, the mortgages in question were not binding upon the joint family, and that even the share of defendant No. 3 which might be in the joint family property was not liable for the mortgage debts, I would, therefore, dismiss the appeal with costs.
8. Mr. L.K. Chaudhuri has submitted, so far as his cross-objection is concerned, that the Court below was not right in giving a direction to the effect that defendant No. 1 should not be ejected from a portion of one of the houses which" he was occupying as a tenant. Defendant No. 1 mentioned no facts in his written statement justifying the inference to which the Court below has arrived. There was not a whisper in the written statement to the effect that he was occupying a portion of one of the mortgaged houses as a tenant and that even in the event of the suit being decreed he was entitled to occupy that portion and remain in possession as a tenant, No issue was raised in this regard. It is true no doubt that there is some oral evidence to the effect that defendant No. 1 was living in a portion of one of the houses as a tenant, but that has no justification for giving a direction in the decree to the effect the Court below has given. Without deciding the question as to whether defendant No. 1 is a tenant or not of a portion of one of the houses in question, I must set aside the direction given by the Court below in this regard. Of course, it will be open to the parties concerned to take recourse, to the provisions of law which they might be advised to follow.
9. There is another submission made in regard to the cross-objection by Mr. Chaudhuri, and it is this that, so far as the finding that defendant No. 1 is not the real mortgagee and that the real mortgagee is defendant No. 2 is concerned, the Court below has come to a wrong finding on the question of benami. I am afraid, the Court below, on the materials on record, could not have come to any other finding, and, therefore, in my opinion, there is no Substance in this submission of Mr. Chaudhuri.
10. The cross-objection with regard to the finding of the Court below that defendant No. 3 was the karta was not pressed.
11. The result is that the cross-objection is modifiedly allowed with regard to the direction given in the decree about defendant No. 1, and the decree should be modified to the above extent. The cross-objection otherwise fails, and is dismissed, but without costs.
12. I am constrained to remark that the judgment of the learned Judge is at times very speculative which will be illustrated by the following extracts from the judgment:
"Similarly P. W. 3 Deoraj Agarwal deposes that on one occasion he found him drunk at about 2 a. m. and quarrelling with bis servants. 'It is curious that he did not report this matter even to the police nor to anybody else ....... ........ Had he been a veteran drunkard, he would have rather preferred a hotel which would have provided him facilities for drink and meat. It is a well known fact that at Ranchi there was no dearth of such hotels in 1948' ......He (P. W. 5) claims to have found him badly drunk in the night following his arrest in June 1947. Admittedly it was on the occasion of the marriage of the plaintiff No. 2. 'It might be that the defendant No. 3 had taken wine in excess on that occasion on account of the marriage ceremony and partly to relieve his sorrow and humiliation caused by the arrest'.
The underlining (here in ' ') has been done by me.