Patna High Court
Kumar Kalika Nand Singh And Ors. vs Kumar Shiva Nandan Singh And Ors. on 19 July, 1921
Equivalent citations: 63IND. CAS.625
JUDGMENT Das, J.
1. The substantial question which we have to decide in these appeals if, whether the plaintiffs are entitled to enforce the mortgage-bonds executed in their favour on the 18th July 1904 and on the 7th November 1912 against the minor sons of the executants. The bond of the 18th July 1904 forms the subject matter of Suit No 464 of 1914 and of Appeal No. 85 of 1918; the bond of the 7th November 1912 forms the subject matter of Suit No. 465 and of Appeal No. 86 of 1918.
2. The material fasts are as follows: Kumar Srinandan Singh, the Malik Zemindar of extensive properties known as Srinagar Raj, died sometime in 1880 leaving a widow, Jugrama Koer, and three minor sons, Nityanand Singh, Kamalanand Singh and Kalikanand Singh. Nityanand was the son of Srinandan by a predeceased wife, and Kamalanand and Kalikanand were his sons by Jugrama Koer. In 1882, the Court of Wards took up the management of the estate on behalf of the minor proprietors and continued to be in possession of the estate until the year 1891 when Nityanand, having attained his majority, took over the management from the Court of Wards. In the same year, Rani Jugrama Koer, as the next friend of her minor sons Kamalanand, and Kalikanand, instituted a partition suit against Nityanand, and, on the 30th June 1892, a final partition decree was by consent passed awarding one-third of the estate to Nityanand and, two thirds of the estate to Kamalanand and Kalikanand jointly. It is important to remember that this decree did not effect a division of the properties by metes and bounds, but that it provided for separate collection of the rents, issues and profits according to the share of the parties which were, defined and acknowledged in the decree. It is also important to remember that the Banaily Raj and the Srinagar Raj (originally constituting one Raj) are tenant-in-common in most of the properties which formed the subject-matter of the partition suit, and that the share allotted to Nityanand was 2-annas, 4-pie in the properties constituting the Srinagar and Banaily Raj.
3. On the 14th June 1894, Nityanand borrowed Rs. 2,00,000 from the plaintiffs on the security of his 2-annao, 8-pie in Tuppa Jamalpur, Nawhatta, and in twenty-two other items of properties, and executed a mortgage bond in favour of the plaintiffs agreeing to pay interest on the money advanced at the rata of 7½ par cent. per annum. On the 6th March 1899, he borrowed a sum of Rs. 3,50,000 from the Banaily Raj, on the security of the entire share allotted to him on partition and executed a mortgage-bond in favour of the Banaily Raj, agreeing to pay interest at the rate of seven par cant, par annum with half yearly rests. In 1901, the Banaily Raj sued upon the security of the 6th March 1899 and, on the 11th March 1902, obtained a mortgage-decree against Nityanand. By the 12th September 1903, the claim of the Banaily Raj against Nityanand on the foot of the mortgage-decree of the 11th Marsh 1902 amounted to Rs. 4,89,679. On that date, a very important transaction took please which it is necessary to mention at this stage. Kamalanand and Kalikanand, both of whom were now of age, purchased the decree obtained by the Banaily Raj against Nityanand for the sum of, Rs. 4,89,673 and, as a security for the payment of the purchase money as well as for an advance of Rs. 11,000 made on that date by the Banaily Raj to Kamalanand and Kalikanand, they executed a mortgage-bond in favour of the Banaily Raj agreeing to re pay the sum of Rs. 5,00,000 with interest thereon at 6 per cent. per annum with half yearly rests "on the expiry of one year from the date of the bond," that is to say, on the 12th September 1904. It appears that the sum of Rs. 679 was paid cash by Kamalanand and Kalikanand to the Banaily Raj. That was the first step taken by Kamalanand and Kalikanand to prevent the family properties from going into the hands of strangers. The next step, obviously, was to purchase from Nityanand such interest as he still had in the properties, namely, his equity of redemption; and this they did on the 28th October 1903 for the sum of Rs. 60,000, oat of which they paid Rs. 6,000 in sash to Nityanand and retained the balance in their hands agreeing to pay Rs. 300 per month to him during his natural life.
4. By the purchase of the 28th October 1903, Kamalanand and Kalikanand made themselves liable to discharge the debt due by Nityanand to the plaintiffs on the mortgage of the 14th June 1894. On the 18th July 1904, the position was as follows: The plaintiffs' claim on the foot of the mortgage of the 18th July 1904 amounted to Rs. 4,33,135. Banaily's claim on the foot of the mortgage of the 12th September 1903 amounted to Rs. 5,25,815. On that date, Kamalanand and Kalikanand took a loan of Ra. 3,00,000 from the plaintiffs and discharged the mortgage of the 12th September 1903 in favour of Banaily Raj by the payment of Rs, 3,00,000 and by the execution of a fresh mortgage in its favour for the balance still due to it, that is to say, for Rs. 2,25,000, Rs. 815 apparently having been paid by them out of their own funds. They also discharged the mortgage of the 14th June 1894 executed by Nityanand in favour of the plaintiffs by executing a fresh mortgage in favour at the plaintiffs binding themselves in the sum of Rs. 7,33,135 whish included the sum of Rs. 3,00,000 advanced to them by the plaintiffs on that date. On the 18th July 1904, therefore, two important transactions took place; first, in consideration of the sum of Rs, 4,33,135 on that date due and owing to the plaintiffs by Nityanand, whose equity of redemption had meanwhile vested in Kamalanand and Kalikanand, and in consideration of a present advance of Rs. 3,00,000 made by the plaintiffs to. Kamalanand and Kalikanand, the latter executed a mortgage-bond in favour of the former, agreeing to pay interest on the sum due at the rate of 6 per cent, per annum with half-yearly rests; secondly, in consideration of the earn of Rs. 2,25,000, whish still remained due and owing by Kamalanand and Kalikanand to the Banaily Raj, the former, in substitution of the security of the 12th September 1903, create a fresh security in favour of the latter and agreed to pay interest at the rate of six per cent. per annum with half-yearly rests. The mortgage-bond executed by Kamalanand and Kalikanand on the 18th July 1904 in favour of the plaintiffs is the subject matter of Suit No. 464 of 1914, and Appeal No. 80 of 1918.
5. Kamalanand died on the 14th April 1910 leaving three sons, Ganganand, born on the 24th September 1898, Ambikanand, since deceased, and Achutanand, born on the Slat March 1607. He did not in his lifetime take any steps to discharge the debt due to the Banaily Raj on the security of the 18th July 1904. On the 7th November 1912, the total gum due to the Banaily Raj was Rs. 3,34,000. On that date, Kalikanand for self and as guardian of his minor sons and nephews borrowed another sum of Rs. 3,00,00- from the plaintiffs and discharged the debt due to the Banaily Raj. It appears that they paid out of their own funds Rs. 34,000 to the Banaily Raj. The mortgage which they executed in favour of the plaintiffs on the 7th November 1912 is the subject-matter of Suit No. 465 of 1914 and Appeal No. 86 of 1918.
6. The only serious defense put forward to the claim of the plaintiffs was by the minor sons of Kamalanand and Kalikanand who contended that the joint family properties could not be affected by the transitions of the 18th July 1904 and the 7th November 1912. The defence was one which is familiar to the Courts of law in this country, namely, that there was no justifying necessity for the loan, and, as it conferred no benefit on the joint family, the, properties belonging to the joint family are not answerable for the claim of the plaintiffs. There were certain other points raised in the written statement of the defendants which it will be oar duty to consider; but the substantial question raised is one of fast, namely, were the debts incurred for a justifying family necessity or in order to confer a benefit on the joint family? The learned Subordinate Judge dealt with the question in a judgment of great ability and fairness. He thought that the question of legal necessity or benefit did not really arise, as the securities sued upon were given in order to enable Kamalanand and Kalikanand to discharge obligations not only antecedently incurred, but incurred distinct and separate, or, in other words, apart from the security sued upon. Dealing then with the question of fact, he came to the conclusion that, though there was no legal necessity for the loans, still the securities were enforceable against the joint family as the debts were incurred for the benefit of the joint family. According to the view of the learned Subordinate Judge, it was a distinct advantage to the joint family to retain Nityanand's one-third share in the family; and as that share was worth more than sixteen lakhs of rupees, and as Kalikanand and Kamalanand paid Rs. 9,67,000 for it, the transaction was intrinsically beneficial to the family. Examining the case from another standpoint, the standpoint of the actual profit made by the joint family from the transaction, the learned Subordinate Judge found that, though the joint family had to pay Rs. 60,000 a year as interest on the debts incurred by Kamalanand and Kalikanand, Nityanand's share was worth to it at least Rs. 95,000 a year. As there may be some doubt as to the actual finding of the learned Subordinate Judge on this point, it is as well to explain that, according to the learned Subordinate Judge, Nityanand derived a profit of at least Rs. 80,000 a year from his share of the properties after meeting the Government demands, rent payable to superior landlord and establishment charges, of which the last item cost Nityanand Rs. 15,000 a year. As there is evidence in the record from the side of the defendants themselves that the joint family did not incur any additional expenditure in respect of establishment charges by the purchase of Nityanand's share beyond Rs. 30 per month, the learned Subordinate Judge thought that that is a matter which ought to be taken into consideration in estimating the benefit that accrued to the joint family. In the result, the learned Subordinate Judge gave the plaintiffs mortgage decrees for the full amount claimed by them.
7. It was not contended by Mr. Manuk in this Court that the full consideration was not paid by the plaintiffs in respect of the securities which the plaintiff a are seeking to enforce against the defendants. Nor was it contended that the money advanced by the plaintiffs did not go in fall to discharge the prior obligation of Kamalanand and Kalikanand. It is not the case of the defendants that the money advanced by the plaintiffs was paid into the hands of Kamalanand and Kalikanand and was wasted and dissipated by the latter in immoral and extravagant living. Indeed, the evidence is occlusive that, after satisfying their own claims in respect of the transaction of the 14th Jane 1894, the plaintiffs paid the balance of the money advanced directly into the hands of the Banaily Raj, first in red not ion of its claim against Kamalanand and Kalikanand on the mortgage of the 12th September 1903, and then in satisfaction of its entire claim against Kamalanand and Kalikanand. It was, however, contended by Mr. Manuk that justifying necessity there was none for the lonas, and, as for benefit, however beneficial the transaction might have been to Kamalanand and Kalikanand it has not, in its result, benefited the joint family as a whole.
8. I propose first to consider whether the transaction of the 12th September 1903 was binding on the joint family; for if it was, then the plaintiffs start with an initial advantage in their favour, for it is conceded that, as to part of the charge in one appeal, and the whole of the charge in the other appeal, they were created by substitution of new securities for old ones. It is, therefore, of the utmost importance to consider the binding character of the transaction of the 12th September 1903. Mr. Manuk's argument is, that that transaction was an improvident transaction into which no prudent owner would enter. Ha accordingly argues that the charge must fail in its entirety, and the plaintiffs' suit dismissed.
9. Now, what was the transaction of the 12th September 1903? It will be remembered that by the compromise-decree passed on the 30th June 1894 (Exhibit 60) there was a disruption of the joint family consisting of Nityanand on the one hand and Kamalanand and Kalikanand on the other. That decree did not effect a division of joint family properties, but it did provide for the separate collection of rents, issues and profits by the parties in proportion to their shares in the joint family properties. Nityanand, in the course of his management of one third share, incurred heavy liabilities both to the plaintiffs and to the Banaily Raj. Banaily Raj obtained a mortgage decree against Nityanand for Rs. 4,57,159-126 on the 11th March 1902. On the 12th September 1903, the liability of Nityanand, on the foot of the decree obtained by the Banaily Raj, amounted to Rs. 4,89,679-3-9. On that date, Kamalanand and Kalikanand, in order ultimately to buy up the share of Nityanand, purchased the decree obtained by the Banaily Raj against Naityanand for the mm of Rs. 4,89,679-3-9, and taking a each advance of Rs. 10,320-12-3, executed a mortgage bond in favour of the Banaily Raj for Rs. 6.00,000, On the 28th October 1903, Kamalanand and Kalikanand obtained a transfer to them of the equity of redemption that was in Nityanand in consideration of a sum of Rs. 6,000 paid to Nityanand in cash and an annuity of Rs. 3,600 a year during the term of his natural life which was valued at Rs. 54,000. Now, in my view, the mortgage of the 12th September 1903, (Exhibit 35) and the purchase of the 28th October 1903 (Exhibit 52) must be considered as one transaction. It is necessary to remember that the share of Nityanand purchased by Kamalanand and Kalikanand on the 28th October 1908 was subject to charges, first, in favour of the plaintiff", secondly, in favour of the Banaily Raj, and, lastly, in favour of his mother Jugrama Koer. The plaintiffs' claim against Nityanand on foot of the mortgage executed by Nityanand in favour of the plaintiffs on the 14th Jane 1894 amounted, at this date, to about four lakhs of rupees. Banaily Raj's claim, as has been mentioned, was Rs. 4,89,679. His mother was entitled to get Rs. 333 5 4 per month which at fifteen years' purchase may be capitalized at Rs. 60,000. The consideration-money paid or agreed to be paid to Nityanand was Rs. 60,000. It will appear, therefore, that Kamalanand and Kalikanand paid rupees 10 lakhs for the share of Nityanand. The question which we have to decide is, was the transaction a prudent one on the part of Kamalanand and Kalikanand?
10. It was argued by Mr. Manuk that Hindu Law does not permit the karta of a joint Hindu family to charge the joint family properties except in the case of a justifying necessity, and as justifying necessity there,, was none for the transaction of 1903, that transaction was not binding on the joint family. In my view, the argument is wholly inadmissible in view of the derisions of the Judicial Committee. It is sufficient to refer to two cases, the earliest and the latest, decided by the Judicial Committee. In the celebrated case of Hunoomanpersaud Panday v. Musammat Balooee Munrai Koonweree 6 M.I.A. 393 : 18 W.R. 81n : Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 (P.C.) Lord Justice Knight Bruce laid down the law as follows: "Upon the third point, it is to be observed that under the Hindu Law, the right of a bona fide incumbrancer who has taken from a de facto manager a charge on lands created honestly, for the purpose of saving the estate, or for the benefit of the estate, is not (provided the circumstances would support the charge had it emanated from a de facto and de jure manager) affected by the want of union of the de facto, with the de jure title." And again: "The power of the manager for an infant heir to charge an estate, not his own, is, under the Hindoo Law, a limited and qualified power. It can only be exercised rightly in a case of need, or 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 affected 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 in the particular instance, is the thing to be regarded." In the case of Manna Lal v. Karu Singh 56 Ind. Cas. 766 : 1 P.L.T. : 13 L.W. 652 (P.C.), decided by the Judicial Committee on the 29th July 1919, the question at issue was, whether the mortgagee was entitled as against the joint family to enforce a mortgage executed by the karta to raise a loan in order to enable him to pay a premium on a lease which the karta had taken for the benefit of the family. The Judicial Committee answered the question in the affirmative. Incidentally, it decided that the karta of a joint family was entitled to borrow money in order to purchase property. I have next to Consider whether the transaction was for the benefit of the family, as to which question, the onus is undoubtedly on the plaintiffs. It will be remembered that there was a mortgage by Nityanand in favour of the plaintiffs so far back as the 14th June 1904, and Raja Kamaleshwari Prasad, one of the plaintiffs, swears that, at that time, he ascertained that the income which Nityanand derived from his one-third share was Rs. 1,50,000. Now there is no question that the evidence of the plaintiffs en this point must be accepted, for it is admitted in the written statement of the minors that the income derived by Kamalanand and Kalikanand in respect of two-thirds share of the family properties was "not less than three lakhs of rupees." Naranath Jha, one of the witnesses examined on behalf of the defendants, said that "the income of Kumar Nityanand was about Rs. 1½ lakhs."
11. Now, the question which the plaintiffs have to answer is this: would a prudent owner give 10 lakhs of rupees for a property which yielded an income of 1½ lakhs? As a business man, Raja Kamaleshwari had no difficulty in answering the question in the affirmative. He makes three points in his evidence as to the benefit conferred on the family by the purchase: first, (to quote his own words) the purchase was cheap at the price; secondly, no additional establishment charges were incurred by the family by this purchase; and, lastly, there would have been insurmountable difficulties in the way of the family if Nityanand's share had passed into the hands of strangers.
12. The first point needs no argument. The learned Subordinate Judge bas shown that the value of Nityanand's share was at least 16 lakhs of rupees and that the transaction Was prima facie beneficial to the family. The conclusion of the learned Subordinate Judge on this point is far too favourable to the defendants, for I have no doubt whatever, as I shall presently show, that the value of Nityanand's share was over twenty lakhs of rupees.
13. The second point is not so clear; but, as the learned Subordinate Judge has accepted Raja Kamaleshwari's evidence on this point, and as it is corroborated by the evidence of the defendants' witness Zahurul Hussain, I ought not to differ from the learned Subordinate Judge on this point. That evidence is again inherently probable, as it does not require two persons to collect rent from the same tenant. It will be remembered that the compromise-decree in the partition suit did not effect a division of the properties; it merely provided for the separate collection of rents, and it is probable, as the plaintiff says, and as Zahurul Hussain admits and is the learned Subordinate Judge has found, that no additional establishment charges were incurred by the family as I result of the purchase. Now the acceptance of this evidence has important results, for the value of Nityanand's share must be far greater to the defendants' than to Nityanand.
14. The third point, to my mind, is perfectly clear. The share of Nityanand was part of the Srinagar Raj. It consisted not only of Zemindari properties, but valuable kamat and jote lands and 41 villages comprised in 7 putni mahals and 6 villages comprised in one darputni mahal. I have said before, but it is necessary to repeat, that the partition between the brothers did not effect a division of the properties. It was manifestly undesirable to let in strangers into the land. The question was not merely one of sentiment, but one of imperative necessity. The Raj Banaily had advertised Nityanand's share for sale in execution of its mortgage decree against Nityanand. It is improbable that, at the auction-sale, one purchaser could have been found for Nityanand's share. Banaily Raj was obviously unwilling to purchase, for it sold the decree to the defendants. Now if the integrity of that share had been broken up at the auction-sale, complications of the worst kind would have arisen in the management of the two-thirds share which was in the defendants. This does not require any argument; it is a matter of experience and, in my opinion, the plaintiffs were entitled to assume that the transaction was one into which any prudent owner would enter.
15. The plaintiff's evidence, therefore, raised a prima facie case of necessity and benefit, and it was for the defendants to rebut that case by cogent evidence. Now the evidence on behalf of the defendants may be placed under two heads; first, that the transaction was the result of impulse and not of forethought on the part of Kamalanand who carried it through in defiance of the advice of Kalikanand and of numerous friends whom he consulted; and secondly, that the transaction has, in fact, not benefited the Joint family, On the first point mush reliance was placed on the opinion given by Babu Jogendra Nath Mukherji, Vakil, end on his evidence. The opinion (Exhibit A) was given on the 6th September 1901, and was with reference to the purchase not of the entire share of Nityanand, but of his interest in Pargana Dhapur. The case for opinion showed that the transaction could not be a profitable one and the Vakil had no difficulty in advising his client not to enter into the transaction. The only point established by this document is that Kamalanand accepted the advice of his Vakil and declined to purchase the share of Nityanand in Parganna Dhapur. Now, in his evidence, it was sought to establish that his opinion related to the purchase of Nityanand's share which took place exactly two years from the date of the opinion. Now this is obviously not so, as the opinion itself shows. It was with reference to his opinion that he gave his evidence and in his examination-in-chief he stated that he did not consider the purchase beneficial at the price named, and that he gave his reasons in the opinion which had just been exhibited. In his re-examination, however, he gave another reason for advising against the purchase, not the reason of the lawyer bat the reason of the friend of the family. That reason may be given in his own words: "Judging from the part management of the estate," so his evidence runs, "by the then proprietors and the manner in which they were spending money, they would not be able to pay off the debt that might arise in consequence of the purchase, but they would go on spending whatever they could, leaving the debt as a further burden on their already encumbered estate." Now, hi admits that this was a reason that operated on his mind and that he did not convey it to the proprietors. That, in my opinion, is entirely irrelevant. The case for opinion showed that the purchase of Parganna Dhapur could not be a beneficial one; he said so in his opinion, and his advise was accepted by the proprietors. If, as was suggested, he gave another opinion at the time of the purchase of the entire share of Nityanand, that opinion has not been produced, and we cannot speculate as to what his opinion was, If be was against the purchase, it is certainly remarkable that his name should appear an a witness to the transaction by which Nityanand conveyed his share to Kamalanand and Kalikanand. A lawyer may witness a document, though he may be opposed to the transaction; but then he gives his opinion on the facts that are placed before him; but a friend of the family, for such he has been described by Mr. Manuk, does not usually witness a transaction which he does not approve of. The evidence of Babu Jogindra Nath Mukharji is entirely irrelevant, except in so far as it establishes that his advise as regards the purchase of Parganna Dhapur was aaoepted by Kamalanand.
16. The nest evidence is that of the defendant Kalikanand. He says that there were various consultations before the purchase, and that they were always of opinion that the purchase would not be a beneficial one. He admits, however, that Mr. Weatherall was strongly in favour of the purchase. Now, Mr. Weatherall was the manager of the estate under Kamalanand and Kalikanand, and was the Receiver of Nityanand's one-third share. He was, therefore, preeminently in a position to give correct advice in regard to the purchase. Now, the prominent argument employed by Kalikanand in the discussions with his brother was that the income from the property was not sufficient to pay the interest on the loan. Now this is absolutely false, as I shall presently show. The other argument was that the estate, was already encumbered. Now, as to this, the only reliable evidence is the plaint filed by the Maharajah of Darbhanga against the family to enforce a mortgage-bond execrated by Kamalanand Singh and Kalikanand Singh on the 7th May 1900 to secure an advance of Rs. 3,50,000 made by the Maharaja to the executants. We do not know what the defence of the defendants was to the suit, nor do we know whether the Maharaja has recovered judgment against the defendants. Bat Kalikanand's evidence is that that was an entirely immoral debt not binding on the joint family. If, at the time of the trans action in suit, Kalikanand believed that the debt due to the Maharajah of Darbhanga was an immoral debt and was not binding in the joint family, he could hardly have told his brother that there were various encumbrances affecting the joint family properties. I altogether disbelieve his evidence that he ever advised against the purchase. He could easily have prevented the transaction by refusing to execute the necessary documents. Bui he did execute all the documents and it is not open to him to suggest that he was altogether opposed to this transaction.
17. The next important evidence is that of Jainandan Jha, the present manager of the defendants. His evidence establishes that there were protracted consultations before the transaction was concluded and that hisab kitab took place in the house of Babu Jogindra Nath Mukherji, as a result of which Babu Jogindra Nath gave a written opinion against the purchase. That written opinion has not been produced, and we have the undoubted fact that Babu Jogindra Nath was a prominent witness to the transaction. Now the hisab kitab would disclose the fact (as I shall presently show) that the transaction would be an exceedingly profitable one to the family.
18. I need not pursue this subject any further, but I ought to refer to the evidence of two other persons, Madho Ram, who has been strongly relied upon by Mr. Manuk, and Padarath Jha. Madbo Ram is a rich jeweller and cloth merchant of Benares, and it appears that he used to be extensively patronized by Lady Curzon. He is, in addition, a moneylender who has still to get about three lakhs from the defendants. He says that he has been a friend of the family for a long time and that Rani Jugrama sent for him and his uncle when negotiations were taking place for the purchase of Nityanand's share. The advice which he gave to the family was that the transaction would be an unprofitable one as the income of the property to be purchased would not be sufficient to pay the interest on the loan. Now. the value of his evidence must depend on whether the argument which he advanced had any foundation in fact, If, in point of fact, every one knew that the income was largely in excess of the interest to be paid on the loans, that argument could not possibly have been put forward by him or by anyone else. Quite apart from this, the evidense of this friend of the family must be received with caution. According to his evidence, he knew that the family was in involved circumstances; and yet he does not scruple to go year after year to Srinagar to sell his wares. He knew that the debts incurred by Kamalanand were all for immoral purposes; and yet he never hesitated to lend money to Kamalanand at high rates of interest. I have no doubt whatever that he is an interested witness, for the chance of his recovering his three lakhs of rupees is somewhat remote, unless the plaintiffs' claims in these actions fail.
19. The evidence of Padarath Jha establishes that there were various persons who were in favonr of the purchase, Mr. Weatherall, Nand Kishore Chowdhry, Naranath Jha and Jai Chedan Jha. He adds, however, that he was himself opposed to the purchase.
20. My conclusions on this point are as follows:
1. The transaction was the result of much deliberation and anxious consideration. Not only did Kamalanand take the advise of many persons, but he went into the question of accounts and took the opinion of his Pleader on this point.
2. That opinion not having been produced, we must assume that it was in favour of the purchase, especially as the examination of the accounts would establish that the transaction would be a profitable one for the family. It is probable that the Vakil supported the transaction, as he was a witness to it; and we know that when, two years previously, the Vakil advised Kamalanand not to purchase Parganna Dhapur, he acted on the advise.
3. Mr. Weatherall was the most competent person to advise in the matter, and his advice was undoubtedly in favour of the purchase.
4. The evidence on which Mr. Manuk has relied is wholly unconvincing as it fails at a crucial point, namely, in establishing that the income available from Nityanand's share was not sufficient to pay the interest on the loan.
20. I now come to the next point, namely, whether the transaction has in fast benefited the joint family. Now, on this paint, the most material evidence would be the account books, but these have not been produced by the defendants. Mr. Manuk, however, contended before us that the issue of benefit or no benefits being upon the plaintiffs, it was not his duty produce the books of account, I quite agree that it was for the plaintiffs to establish that the transaction was entered into for the benefit of the family, bat the plaintiffs, in my judgment, have given sufficient evidence to throw the burden on the defendants. The defendants meet the evidence of the plaintiffs by the substantive case that the income from Nityanand's share purchased by Kamalanand and Kalikanand was not sufficient to pay the interest on the loans taken by them to enable them to buy that share. In my view it was for the defendants to establish that case by the production of their books of account. The following observations of Lord Justice Knight-Bruce in the case already cited Hunoomanpersaud Panday v. Musammat Babooee Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81n : Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 (P.C.) are peculiarly applicable to this question: "Consequently, this dictum," said the learned Lord Justice, referring to the dictum of the Sudder Dewani Adalt at Agra on the question of onus of proof in a case which need not be sited, "may perhaps be supported on the general principle that the allegation and proof of facts, presumably in his better knowledge, is to be looked for from the party who possesses that better knowledge, as well as on the obvious ground in such suits of the danger of collusion between father and sons in fraud of the creditor of the former. Bat this case is of a description wholly different, and the dictum does not profess to be a general one, nor is it so to be regarded. Their Lordships think that the question on whom does the onus of proof lie in such suits as the present, is one not capable of a general and inflexible answer. The presumption proper to be made Will vary with circumstances, and must be regulated by and dependent on them. Thus, where the mortgagee himself with whom the transaction took place, is setting up a charge in his favour made by one whose title to alienate he necessarily knew to be limited and qualified, he may be reasonably expected to allege and prove facts presumably better known to him than to the infant heir, namely, those facts which embody the representations made to him of the alleged needs of the estate, and the motives influencing his immediate loan." The mortgagee was not a party to the transaction which we are at present considering, that is to say, the transaction of 1933. The defendants, from their book of account, have an accurate knowledge as to the truth of the allegation made, by them, namely, that the income from: Nityanand's share was not sufficient to pay the interest on the debts incurred by Kamalanand and Kalikanand. The proof of facts is accordingly to be looked for from the defendants who possess this accurate knowledge. I am of opinion that, the books of account having been suppressed by the defendants, we are bound to make every presumption consistent with facts against the defendants.
21. The learned Subordinate Judge has found that the nett income available to Nityanand was at least Rs. 80,000 a year and that, as the interest payable by the defendants on the debts incurred by them for the purpose of acquiring the share was Rs. 60,000 a year, the transaction was undoubtedly a beneficial one to the family, a transaction into which a prudent owner would enter. The learned Subordinate Judge has also found that the establishment charges Cost Nityanand Rs. 15,000 a year and that the defendant", after their purchase, saved this amount as they incurred no additional expenditure in respect of establishment charges. On the finding of the learned Subordinate Judge, therefore, the nett income available to the defendants from Nityanand's share was at least Rs. 95,000 a year. The conclusion at which the learned Subordinate Judge arrived was based on the admissions made by the defendants' witnesses. It does not require mush ingenuity to see that the transaction must have been a profitable one to the defendants, as they had to pay Rs. 60,000 as the interest on the loans.
22. The finding of the learned Subordinate Judge was attacked before us by the appellants as well as by the respondents. On behalf of the appellants it was urged that the oral admission made by their witnesses should not have been relied upon by the learned Subordinate Judge, but that he should have anted upon the Report of the Survey and Settlement Operations of Srinagar Estate which took place in the year 1887-88. The argument is a bold one, seeing that it was within the power of the defendants to give accurate and precise information to the Court as to the income derived by them from Nityanand's share. But I agree that if the Survey and Settlement Report make it impossible for us to accept the conclusion of the learned Subordinate Judge on this point, we ought not to accept it, I must not be understood, however, to suggest that the learned Sobordinate Judge did not consider the Report of the Survey and Settlement Operations, He did consider it and thought that this conclusion received strong corroboration from that Report.
23. Mr. Manuk's whole argument is based oil the table at page 40 of the Report which shows that the total rent demand of the 16 annas Srinagar Raj was Rs. 2,79,418 and that the actual profit was Rs. 1,97,380-8-8¼ after taking into account the Government revenue and the putni rent payable by the estate, but not the establishment charges which, according to Mr. Manuk, must have been at least Rs. 45,000 a year. He accordingly argues that the nett profit of the entire estate could not have exceeded Rs. 1,50,000, and that the nett profit from Nityanand's share could not have exceeded Rs. 50,000 a year. But, as has been pointed out by the learned Subordinate Judge, there are materials in the Report itself which conclusively establish that the position must have altered considerably between 1887-88 and 1903. For instance, the report shows at page 72 that the Banaily Raj and the Srinagar Estate held between them 10,568 acres of cultivated, but not rent paying, land as »r land, and 84,867 acres of uncultivated land as roads, waste land, etc. Now the Srinagar Raj had admittedly 8 annas share in all these lands, so that, apart from the actual rent demand, the Raj must have received a considerable income from these lands which must have considerably increased as waste lands were gradually brought under cultivation. Mr. Manuk has contended before us that the profit derived from the sir lands must have been taken into consideration in giving the share of the rental which went to the Srinagar Estate, and that there is no evidence, that the waste lands have been brought under cultivation. On the first point, Mr. Manuk relies upon the statement which appears at page 40 of the Report to the effect that the rentals include receipts from halhasli and jaidadi lands estimated at Re. 1-8-0 per acre. Mr. Manuk's point is that the halhasli and jaidadi lands are part of the sir land mentioned at page 72 of the Report and that the rental shown in the table at page 40 included such profits as were made from the sir lands. In my opinion there is no foundation for the argument that halhasli and jaidadi lands are part pf the sir lands mentioned at page 72 of the Report. Now halhasli and jaidadi lands are rent paying lands, as the Report at page 48 shows. They are peculiar to the Bhagalpur District and are found chiefly in the Khubkhand Parganna of Bhagalpur. It is not correct to refer to the lands an halhasli or jaidadi. These are names given to a special tenure existing between landlord and tenant in Bhagalpur District and particularly in Khubkhand Pargana of Bhagalpur. Now the sir lands mentioned at page 72 of the Report are expressly stated to be not rent paying and it will be found that they are not confined to Bhagalpur, but are distributed amongst the different districts in which the Srinagar Raj is interested.
24. On the second point, I quite agree that there is no evidence that the waste lands mentioned at page 72 of the Report were brought under cultivation before the year 1903. But that is entirely irrelevant. The plaintiffs do not rely upon the Settlement Report, Exhibit) M, at all. It is the defendants who rely upon it. It is their case that this Report conclusively establishes that the nett income available to Nityanand could not have execeded Rs. 50,000. It is sufficient for the plaintiffs to say in reply that the Report cannot be accepted as a safe guide as to what the position was in 1903. The Report makes it perfectly clear at page 41 that all this waste land (21 -21 per sent, of the area actually settled with the proprietors) was available for settlement with raiyats.
25. There are other points which emerge from the Report which make it impossible for us to rely upon it as showing the nett income available to Nityanand in 1903. The statements at page 30, page 33. page 34, page 35 and page 36 show that there was a large percentage of lands which were culturable, but not cultivated. In other words, they were all available for immediate settlement. Then, again, it appears that there were large tracts of lands which were not taken up for settlement and ware not included in the statement appended to the Report. For instance, 7,654 acres in 11 villages in Haveli Parganna, Purneah, in which the Srinagar Raj had a small share, ware altogether excluded from the Report (see paragraph 11, page 27). So also were 23 villages in Daphar Parganna, as they were not under cultivation and were covered with grass and jangle (see paragraph 11, page 27), So also were 9,188 acres as there were adverse decisions in boundary dispute cases. I do not suggest for a moment that all these lands became profitable lands in 1903. But I do suggest that all the different circumstances to which I have referred make it impossible for us to rely upon the report as showing what was the nett income available to Nityanand in 1903.
26. Mr. P.K. Sen on behalf of the respondents has contended before us that the estimate of the learned Subordinate Judge on the question of income is far too favourable to the defendants. He says that, the nett income available to Nityanand was far in excess of Rs. 95,000 a year. It must be said in favour of the learned Subordinate Judge that he made no attempt to arrive at a precise figure. His finding is that the nett income available to Nityanand was at least Rs. 80,000 a year and that, in purchasing the share, Kamalanand and Kalikanand made a further saving of at least Rs. 15,000 a year, as they incurred no additional expenditure in respect of establishment charges.
27. Now, in my view it is possible to arrive at a conclusion as to the nett income on the admitted evidence in the case. First, there san be no possible room for controversy that the gross income of 16 annas Srinagar Raj is 4½ lakhs. That was the common case of the parties up to a particular date. The plaintiff in his evidence states that Rs. 1½ lakhs was the income from Nityanand's share. The defendants in their written statement admit that Rupees 3 lakh, was the income of two thirds share in the possession of Kamalanand and Kalikanand, Durga Prasad, the mukhtar am of the Srinagar Raj, supports in his evidence the written statement of the minor defendants as to the income. Naranath Jha, who served the Srinagar Raj in various capacities and was examined on behalf of the defendants, admits that the income of Nityanand's share was Rupees la lakhs. We are, therefore, on safe ground in adapting Rupees 4½ lakhs as the grow income of the entire Raj. In order now to arrive at the nett income, we must deduct, first, the amount payable in respect of Government revenue and cesses, secondly, the amount payable to the superior landlords in respect of the putni mahals, and, lastly, the expenses incurred for the management of the estate. Now, the Settlement Report (Exhibit M) shows that the Government revenue in respect of the entire estate was Rs. 58,142 and that the putni rent payable by the proprietors was Rs. 23,859. In regard to establishment charges, no difficulty arises, as it is the defendants' case that it cost the proprietors Rs. 45,000 a year under this head. There only remains the question of cesses, and this is merely a matter of calculation. We know from the Statute that one anna per rupee is payable on the gross income; and, on the hypothesis that the gross income of the entire Raj was Rupees 4½ lakhs, the cess payable by the proprietors must be Rs. 28,125. Now, these figures receive strong corporation from the admitted evidence in the case. It will be seen that, on these figures, Rs. 16,25.7 was payable by the Raj in respect of Government revenue and cesses. Jainandan Jha, a relative of the defendants and the Assistant Manager of the Raj, said in his evidence that Rs. 85.000 to Rs. 83,030 was payable on account of land revenue and asses. Naranath, who is also intimately connected with the Raj, says that the entire revenue payable by the Srinagar Raj inclusive of cesses is between Rs, 80,000 and Rs. 90,000. These) admissions are most important, for they establish that the cesses payable by the Raj must be about Rs. 28.001, for there can be no controversy that the Government revenue is Rs. 58,142. If once we get the ceases, there is no difficulty in ascertaining the gross income of the Raj.
28. In whatever way you may look at the evidence, there can be no doubt whatever that the gross income of the Raj is Rs. 4,50,000 and that the cesses payable by the Raj amount to Rs. 28,125.
29. By a simple arithmetical calculation it is possible to say, with tolerable certainty, that the nett income of the entire Raj must be Rs, 3,39,874 or thereabout, and that Nityanand's share of this income must have been Rs. 1.1%000.
30. We are now in a position to say whether the transaction has in fast benefited the family. The capitalized value of Nityanand's share at twenty years' purchase is Rs. 22,60,000, and for this the family gave Rupees ten lakhs. I may point out that the learned Subordinate Judge, with his local knowledge, took the value of his share at twenty years' purchase, and Mr. Manuk in his argument before us, did hot assail this method of valuation. We may look at it from another point of view. In calculating the nett savings effected by Kamalanand and Kalikanand, we must, as 1 have shown before, add the sum of Rs. 15,000 to Rs. 1,13,000. In other Words, the nett income available to Kamalanand and Kalikanand was Rs. 1,28,000 a year. Out of this sum they had to pay Rs, 60,000 a year by way at interest, and "Rs. 4,000 a year to Rani Jugrama for and by way of her maintenance. This left them with a clear profit of Rs. 64,000 per year. In my opinion, it cannot be Suggested for one moment that it, this particular instances, the charge is not one that a prudent owner would make. On the one hand, a very large profit was made by the joint family as a result of this transaction; on the other hand, the family not only consolidated the ancestral properties, but averted a danger, a real danger, by this transaction. Had Nityanand's share passed, as it might, to ten different persons, a partition suit would of necessity have followed and, apart from the uncertainty as to allotment which such a Suit would have involved and the loss of income during the pendency of such a suit, the costs of prosecuting such a suit would have been as serious burden on the estate. I am of opinion, that the charge in favour of the Banaily Raj was created honestly for the safety and the benefit of the estate and that the transaction was binding on the joint family.
31. There is one argument of Mr. Manuk which I must not omit to consider. He says that Rani Jugrama purchased certain properties belonging to Nityanand in execution of her decree against him and that, in calculating the income available to the defendants by the purchase of Nityanand's share, we ought to ignore the income of these properties which passed to Rani Jugrama. Mr. Manuk relies upon Exhibits J and J1. Exhibit J shows that Rani Jugrama, on the 8th October 1901, purchased two different lots of properties belonging to Nityanand for Rs. 505 each, each of which she valued at Rs. 500. Exhibit J1 shows that on the 11th August 1900, she purchased three lots of properties belonging to Nityanand, one which she valued at Rs. 300 for Rs. 500, the other which she valued at Rs. 500 for Rs. 900, and the third which she valued at Rs. 800 for Rs. 1,460. It is sufficient for me to say that the properties are so insignificant in value that their income, whatever it may be, may be safely ignored. But I quite agree with the learned Subordinate Judge that there is no reliable evidence that Rani Jugrama ever got possession of these properties.
32. I hold that the charge created by Kalikanand and Kamalanand in favour of the Banaily Raj on the 12th September 1903 was operative against the joint family of which Kamalanand was the karta.
33. I now come to the mortgage (Exhibit 11) executed by Kamalanand and Kalikanand in favour of the plaintiffs on the 18th July 1904, the subject matter of one of the appeals before us. It will be remembered that, so far back as the 14th June 1894, Nityanand had executed a mortgage (Exhibit 1) in favour of the plaintiffs, and that Kamalanand and Kalikanand, by the transaction of the 28th October 1903 (Exhibit 52), had undertaken, as they were bound in law, to discharge Nityanand's debt to the plaintiffs, it will also be remembered that Raj Banaily had a large claim against the defendants on the foot of the mortgage (Exhibit 35) executed by Kamalanand and Kalikanand in its favour on the 12th September 1903. On the 18th July 1904, the position was as follows: Rs. 4,33,135 was found to be due to the plaintiff on the foot of the mortgage (Exhibit 1) of the 14th June 1894, and Rs. 5,25,815 was found to be due to Raj Banaily on the mortgage (Exhibit 35) of the 12th September 1903. On the 18th July 1904, a new arrangement took place to which the plaintiffs, the defendants and the Banaily Raj were parties. The defendants took a loan of Rs. 3,00,000. from the plaintiffs, executed a mortgage-bond (Exhibit 11) in favour of the plaintiffs for Rs. 7,33,135, thus extinguishing the debt due by Nityanand to the plaintiffs, paid the entire sum borrowed by them from the plaintiffs to Banaily Raj, and (Exhibit 2) executed a fresh mortgage bond in favour of the Banaily Raj for Rs. 2,25,000. The transactions of the 18th July 1904 were essentially substitutions of new securities for the old ones. The security created in favour of the plaintiffs, on the 18th July 1904 forms the subject-matter o£ one of the appeals before us the security created in favour of Raj Banaily on that date or rather the security which was again substituted in its place form the subject-matter of the other appeal before us.
34. Now, in considering the binding character of the security created in favour of the plaintiffs on the 18th July 1904, we have to examine, first, the validity of Nityanand's mortgage in favour of the plaintiffs on the 14th June 1894, and, secondly, the validity of the. defendants' mortgage in favour of Raj Banaily on the 12th September 1903. Now, so far as Nityanand's mortgage is concerned, no question) in my opinion, can possibly arise. Nityanand was the sole male member of the family after his separation from his brothers. In this case we have not those familiar figures of our law Courts, the Mitakshara sons, to dispute the validity of the security created by him in favour of the plaintiffs. The defendants took his share not by survivorship, but by purchase, and the defence ordinarily available to the members of a joint family is not open to the defendants. The defendants by their transaction with Nityanand expressly undertook to discharge his liability to Nityanand, Notwithstanding the purchase, the properties which Nityanand had mortgaged to the plaintiffs were still liable for the plaintiffs' claim against Nityanand; and lean see no answer to 'the argument' that, if the purchase of Nityanand's share by the defendants stand good, the mortgage of the 18th July 1904,io favour; of the plaintiffs cannot fail, at least as regards the advance made to the defendants in order to enable them to discharge Nityanand's obligation to the plaintiffs. It was argued, however, by Mr. Manuk that the new security included joint family properties, whereas the old security consisted only of Nityanand's, share in certain properties and that the karta should not have involved the joint family properties in such an undertaking. Bat the question arises only because the joint family properties have been involved. If, indeed, the karta had not included the joint family properties in the security created in favour of the plaintiffs, the question of necessity or benefit could not possibly arise; for, on the hypothesis that the purchase of Nityanand's share was a purchase made by Kamalanand and Kalikanand and not a purchase, by the joint family of which. Kamalanand, was the; karta, the joint family could have no locus standi to contest the transaction. The question of necessity or benefit only arises because the joint family properties were included in the security created in favour of the plaintiffs. In my opinion, the validity of the security mast depend on the validity of the transaction by which the family purchased the share of Nityanand in the joint family properties. That question I have already considered and I have come to the deliberate conclusion that the transaction of 1903 is binding on the joint family. That being so, the deed of the 18tn July 19 A must stand as a security for at least Rs. 4,33,135, the sum which was found due and owing by Nityanand to the plaintiffs on the 18th July 1904.
35. I now come to the balance of the consideration paid on the mortgage of the 18th July 1904, Rs. 3,10,000, which went to the reduction of Banaily's claim against the defendants on the mortgage of the 12th September 1903. The question must again depend on the validity of the transaction of the 12th September 1903, and I have already recorded my opinion that the transaction of the 12th September 1903 was binding on the joint family. Mr. Manuk, however, has argued that, though the transaction of the 12th September 1903 may stand, that of the 18th July 1904 is not operative against the joint family, as the plaintiffs knew or should have known if he had made any enquiry at all, that Kamalanand and Kalikanand were wasting and dissipating the estate, and that their only object was to get an additional income to waste on their extravagance. It was not argued by Mr. Manuk that they dissipated the money which they actually borrowed from the plaintiffs, for the evidence is conclusive that every pice which the plaintiffs advanced to the defendants went first to extinguish their claim against Nityanand and then to the reduction of Banaily's claim against the defendants, But it was argued by Mr. Manuk that if, in fact, Kamalanand and Kalikanand were not only mismanaging the estate but were actually leading a life of dissipation and debauchery, the plaintiffs lent money to them at their own risk and cannot make the joint family properties responsible for the debts incurred by them; and he strongly relied upon the following passage in the judgment of the Judicial Committee in the case of Hunoomanrpersaud Panday v. Musammat Babooee Munraj Koonweree 6 M.I.A. 393 : 18 W.R. 81n : Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 (P.C.): "Their Lordships think that 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."
36. In my judgment, the passage cited gives no support to Mr. Manuk's argument. The Judicial Committee laid down two propositions which it is impossible either to misread and misunderstand. First, where, in the particular instance, the charge is one that a prudent owner would make, and the prudent owner would make a charge either in the case of necessity or for the benefit of the estate,--the bona fide lender is not affected by the precedent management of the estate; secondly, if the lender is shown to have acted mala fide, he cannot ask the Court to uphold the charge in his favour against the heir, grounded on a necessity which his wrong has helped to cause. The passage relied upon merely asserts that the lends cannot Act merely upon the representation made to him by the manager but that he is bound to make an honest enquiry into the necessity of the loan with reference to the parties with whom he is dealing, that is to say, with reference to the representation made to him by the parties with whom he is dealing, The necessity for the enquiry, it seems to me, is purely for the protection of the lender; it is an equitable rule framed for the protection of the lender, so that he may not be met with the case that there was no necessity at all for the loan, or that the money lent was wasted and dissipated by the manager; for the Judicial Committee in the nest passage made it quite dear that if the lender does so enquire, and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of the charge and that the lender is not bound to see to the application of the money. But if the lender does see to the application of the money, as he has in the case before us, the question of enquiry becomes perfectly immaterial.
37. I am, therefore, not disposed to agree with Mr. Manuk that the lender is bound to take into consideration what has been described as "the psychology of the situation." It is impossible, according to Mr. Manuk, to regard the intrinsic merit of the transaction as an isolated matter apart from the temperament, character, and the mode of living of the borrower; and if a consideration of these extrinsic matters suggest the inference that the transaction could not possibly be beneficial to the joint family, then the transaction, so Mr. Manuk argued, ought not to stand, however intrinsically meritorious it may appear to be. I confess that the argument is an attractive one, but to accede to it is to reduce the transaction into a speculative one and to place the lender in an almost impossible situation, According to the Judicial Committee, in the case already sited, the actual pressure on the estate, the danger to be averted, or the benefit to be conferred on it, in the particular instance, is the thing to be regarded. In my view, we must examine the transaction to see whether, in the particular instance, there was a benefit to be conferred by it on the family. I Quite agree, however, that if a case of mala fides is established against the lender and such a case is established where it is shown that the lender must have known when be lent the money, chat transaction was bound to involve the family in ruin, and that in entering into it, the borrower was acting in his own interest and for his own benefit and not in the interest and for the benefit of the family, the security cannot be enforced against the family.
38. I will first examine the evidence to see whether any case of mala fides has been established against the plaintiffs. I will then deal with "the psychology of the situation" and see whether, on facts, Mr. Manuk is entitled to succeed, assuming that} he is right as to his interpretation of the law.
39. Now, on these questions, it is important to consider the arguments of Mr. Manuk. He says that Kamalanand began to live a life of debauchery and vice almost as soon as he attained his majority, that so long as he had money to spend on his extravagance and folly, he did not scruple to sacrifice the interests of the family, and that he had made himself notorious in three aides of which Monghyr, where the plaintiffs live, was one. So far as Kalikanand is concerned, it was not suggested that be has ever led a life of vice and debauchery, bat it was suggested that his particular hobby was to buy pedigree dogs and motor cars and to start perfectly useless ventures for the manufacture of soap and cutlery at the expense of the joint family.
40. A few dates will not be out of place here. It appears that Srinandan, the father of Nityanand, Kamalanand and Kalikanand, died in the year 1880, when, his widow Rani Jugrama became, for short period, the manager of the estate under Act XL of 1858. In the same year, the Court of Wards took up the management and relinquished it in July 1891, when Nityanand attained his majority. It is quite certain that the estate was solvent when the Court of Wards made over possession to Nityanand, In 1891, Rani Jugrama, as the next friend of her minor sons, instituted a partition suit against Nityanand, and, on the 30th June 1892, the final partition decree was passed by consent, awarding one thirds share in the estate to Nityanand. From 1892 to 1896, Jugrama managed the two-thirds share of the estate on behalf of her minor sons, and her management was so good that she actually made a saving out of the income which she made over, along with the estate, to Kamalanand when he attained his majority in 1896. On the 7th May 1900, Kamalanand and Kalikanand borrowed Rs. 3,50,000 from the Maharajah of Darbhanga and executed a mortgage-bond in his favour. On the 12th September 1903, Kamalanand and Kalikanand purchased the mortgage-decree for Rs. 4,89,679 which Banaily had obtained against Nityanand on the 11th March 1902, and, being unable to pay the purchase money, executed a mortgage-bond in favour of Banaily on the same date. On the 28th October 1903, they purchased from Nityanand his share in the family estate, subject to three charges, that is to say, charge in favour of the plaintiffs for about four lakhs, charge in favour of Banaily for Rs. 4,89,000 and charge in favour of his mother for Rs. 333-5-4 per month. On the 18th July 1904, they borrowed Rs. 3,00,000 from the plaintiffs and executed a mortgage-bond in their favour for Rs. 7,33,135, thereby extinguishing the plaintiffs' claims against Nityanand. On the same date they paid Rs. 3,00,000 to Banaily and executed a mortgage-bond in its favour for Rs. 2,25,000, thereby satisfying the mortgage-bond of the 12th September 1903. Kamalanand died on the 14th April 1910 without having paid off the debt due either to the plaintiffs or to Banaily. On the 7th November 1912, Kalikanand borrowed Rs. 3,00,000 from the plaintiffs and executed another mortgage bond in favour of the plaintiffs. This mm, together with another sum of Rs. 34,000, he paid to Banaily and satisfied its mortgage of the 18th July 1904.
41. This, in brief, is the history of the transactions of Kamalanand and Kalikanand, and Mr. Manuk has contended before us that the very recital of these events in a chronological order in sufficient to establish that Kamalanand and Kalikanand were wasting and dissipating the estate, and that the plaintiffs must have known that they were wasting and dissipating the estate. It will be noticed, however, that, apart from the Darbhanga bond, every debt incurred by the family is referable to the purchase of Nityanand's share by them. I will assume for the moment that they were leading a life of reckless extravagance regardless of the interest of the family; but the question which we are investigating for the moment is, has a case of mala fides been established against the plaintiffs P Now, it would be impossible, nor is it desirable, to attempt a complete codification of the evidence that would, in all cases, establish: a case of mala fides against the lender. Each case must depend on its own facts; but, speaking broadly, there must be evidence in the case from which the irresistible inference would follow that the lender knew, whether he advanced the money, that the borrowers were so reckless and extravagant that it would be impossible for them to discharge the debt incurred by them, that the lender knew that the object of the borrowers in purchasing the property was not so much to benefit the family as to get an additional income for themselves, and that in giving the loan, the lender had for his object, not so much the return of his money, as the acquisition of the properties mortgaged to him. This, I think, must be established by the family before they can be heard to say that a transaction which, as an isolated matter, if undoubtedly beneficial to the family, is still not binding on it. I do not for a moment suggest that the same consideration will apply when the transaction itself is not beneficial to the family. But here the transaction, as a matter of sold calculation, was undoubtedly for the benefit of the family. But the family says that, though on paper, the transaction may appear to be an attractive one, still, as their managers threw away the entire income on a life of reckless folly and extravagance without ever attempting-to reduce the debts incurred by them, it has not, in its result, benefited it and ought not to bind it. The answer to the argument is that, if the validity of a transaction is to depend on the future conduct and mode of living of the manager, then an amount of risk and uncertainty is introduced so as to make the transaction a speculative one. But the case would be entirely different if mala fides is established against the lender.
42. Now, it is remarkable that in the lengthy cross-examination of Rajah Kamaleshwari there is not one question to suggest a case of bad faith against him. I have read his evidence over and over again, and I can find nothing even remotely suggesting a case of bad faith. I think this is important, and ought to be carefully remembered in dealing with the case of mala fides. But Mr. Manuk's argument is, it does not very much matter whether his case on this particular point was? or was not put to Rajah Kamaleshwari; but, if he has established that Rajah Kamaleshwari Prasad knew only too well what sort of life Kamalanand was leading, he has made out a case of mala fides against Rajah Kamaleshwari. Here, again, the evidence is wholly insufficient. There is no doubt a mass of evidence that Kamalanand had two women, in his keeping, and that he spent large sums of monies on them and that he was fond of shooting, and that he spent lavishly in indulging in that particular hobby of his; but there is not an atom of evidence which even remotely suggests that Rajah Kamaleshwari knew of his vices or that he encouraged him to indulge in those vices. Amongst the mass of evidence that has been adduced on behalf of the defendants, there is just one passage,--the only one which I have beep able to discover,--which was strongly relied on by Mr. Manuk, That passage will be found ID the evidence of Zahurul Hussain and is as follows: " During the Holi dancing and singing took place and all the town people were there, including the plaintiff Rajah Sahib, that took place in 1907 or 1909. In other years during the Holi the Kumar used to go to His Deori." Now, it is perfectly idle to say that this evidence establishes a case of. maleficent against Rajah Kamaleshwari. Holi festivals are recognized festivals in Behar when dancing and singing take plane and it is part of the duty of a rich Zamindar to entertain friends on such a festive occasion. It was then argued that Kamalanand was so lost to all sense of shame and decency that he made himself notorious in three cities, Purnea, Bhagalpar and Monghyr, and that his reputation must have reached the ears of Rajah Kamaleshwari. Here, again, the evidence does not support the argument. We are, for the moment, not concerned with his doings in Purneah and Bhagalpur, for the plaintiffs resided and have their place of business in Monghyr. Now, Jainandan Jha makes it perfectly clear that Kamalanand did not go to reside in Monghyr until the year 1905 or 1906, that is to say, not till long after the execution of the bond of the 18th July 1904, On the question whether Kamalanand had any sense of shame or deanery, it is sufficient to refer to the evidence of Kalikanand himself, of Jainandan Jha and. Madho Ram, all examined on behalf of the defendants. Kalikanand says that Kamalanand did not do any "immoral action" in his presence. Jainandan says that Kamalanand never associated with prostitutes in his presence. Madho Ram says that Rajeswari, one of the women in his keeping, used to some to the Kothi after sunset; and then he adds, "Kamalanand felt ashamed to appear with them in public."
43. It is perfectly clear, then, that Kamalanand did not make himself as notorious as Mr. Manuk would have us believe; and this is a convenient place to investigate what enquiry was made by the plaintiffs before they consented to lend money to the defendants, as the question is intimately connected with the question that we ate at present considering.
44. The actual enquiry was conducted on behalf of the plaintiffs by Mahabir Prasad, who has given evidence in the case and Bhagbat Prasad, who is dead, Mahabir says in his evidence that he, accompanied by Bhagbat, went to Bhagalpur, Purnea and Srinagar. At Bhagalpur, they mat Rai Bahadur Bheo Shankar Sahai, the manager of Banaily Raj and a gentleman of considerable importance in Behar. They learned from him that the family of the defendants was benefited by the transaction by which they had purchased Nityanand's share. They also ascertained that Kamalanand and Kalikanand ware men of good moral character. Their enquiry at Purnea and Srinagar elicited the same facts. At Purnea, they made enquiries from Ram Prasad Lal, a Pleader, who has acted on behalf of the defendants in the present case, and from three or four Pleaders in the Bar Library. At Srinagar they made enquiries from Khublal Khajanahi and Jainandan Jha, both in the service of the defendants. Mahabir explains in his evidence that he was especially asked by the plaintiff Rajah Kamaleshwari to enquire if Kamalanand and Kalikanand were of good moral character and what was their previous debt and if the debt was for legal necessity. He ascertained that they were of good moral character, that the previous debt arose as a result of the purchase of Nityanand's share, and that the family was considerably benefited by the transaction. He reported the result of his enquiries to Rajah Kamaleshwari and Rajah Kamaleshwari swears that he especially questioned Mr. Weatherall and Rai Bahadur Lachmi Prasad, who were, respectively, the manager and assistant manager of the Srinagar Raj, as to the truth of the statements made to him by Mahabir Prasad, and that "they corroborated the facts reported by Babu Mahabir Prasad and Babu Bhagbat Prasad."
45. Rai Bahadur Sheo Shankar Sahai is dead, and he could not, of course, be called by the defendants to contradict the story told on behalf of the plaintiffs. But all the other persons named by Rajah Kamaleshwari and Mahabir are alive, and, in my judgment, it was the duty of the defendants to call them, if it be their case (as has been contended before us by Mr. Manuk) that the whole of the story told by Rajah Kamaleshwari and Mahabir on this point is false. One of the persons named by Mahabir, Jainandan Jha, was indeed sailed by the defend-ants, but no question was put to him as to the enquiry alleged to have been made by Mahabir from him. The others were not called, though, at the date of the trial, they were all alive. In these circumstances, it is quite impossible to ignore the testimony of Mahabir and Rajah Kamaleswari. The consequence is far reaching. It establishes that Kamalanand and Kalikanand, however immoral and extravagant they might have been, were not so flagrantly immoral and extravagant that the report of it must have reached the ears of the plaintiffs.
43. There is another point that ought to be mentioned here. When it is argued that the plaintiffs were actuated by bad faith and that their whole object was to get the property and not the return of their money, it must not be forgotten that they reduced the rate of interest considerably on the transaction of the 18th July 1904. The interest on Nityanand's mortgage in favour of the plaintiffs was seven-and-a-half per sent, with quarterly rests. The transaction of the 18th July 1904 was largely a substitution of a new security for Nityanand's security. The rate of interest on this transaction was six per cant, per year with half-yearly rests. As was said by the Judicial Committee in Hunoomanpersaud Panday's case 6 M.I.A. 393 : 18 W.R. 81n : Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 (P.C.), this was a transaction prima facie for the benefit of the estate. I have taken the trouble to ascertain at what rate of interest the defendants have borrowed money from other moneylenders. I find that the interest on the loan of Rs. 3,50,000 ad canned by the Maharajah of Darbhangaran at the rate of 7½ per cent. with half-yearly rests (Exhibit H); that the interest on the loan for Rs. 7,00,000 advanced by Prithi Chand Lal ran at the rate of 7½ per sent, per annum with half yearly rests (Exhibit H); that Olao Babu charged ten per sent, and Madho Ram nine per sent, (see Madho Ram's evidence). I hold that it has not been established that the plaintiffs were actuated by bad faith in entering into the transaction.
44. I will now deal with the question whether Kamalanand and Kalikanand were actually dissipating the estate, not because I think that the question is at all relevant, but because the question has been argued at great length before us. Now, in considering this question, the date that must be regarded is the 12th September 1903, for the transactions sued upon have all arisen out of the transactions of the 12th September 1903. Bat I do not think that it makes the slightest difference if we regard the 18th July 1904 as the critical date for the consideration of this question.
45. Now, there can be no doubt that both Kamalanand and Kalikanand were thoroughly negligent as to the affairs of their estate and that they spent their life in high, and, indeed, reckless living. But the question which we have to investigate is, did they look to the income of the estate for the satisfaction of their whims and caprices? If, indeed, they borrowed the money which they spent on their pleasure then, so far as the estate is concerned, it has nothing to complain. That would be a personal question between themselves and their lenders without the slightest embarrassment to the estate, for it is well established that such debts are not binding on the estate. Now, on this point, Jainandan Jha, who has long been associated with the Srinagar Raj and is at present the manager of the Raj, says that 'the amounts which Kumar Kamalanand Singh used to spend extravagantly on immoral purposes used to be raised by him on loans." He also says that Kumar Kamalanand 'had also to borrow money for his Shikar parties." Kalikanand in his evidence says that he was indebted to the extent of five or six lakhs before the purchase of the share of Nityanand and that all these debts were incurred, to quote his own words, "to meet our luxurious desires, immorality and hunting purposes." To the same effect is the evidence of Zihural Hussain. Toe evidence established conclusively that, though at times 'Kamalanand took money from the Mufassil, the bulk of the money spent by him for immoral purposes was borrowed by him from various persons. Now, so far as we know, there is only one debt which he incurred on the security of joint family properties before the transaction in suit, the debt in favour of Maharajah of Darbhanga. All the other debts were apparently personal debts which do not affect the joint family properties. In my opinion, this view of the matter has an important bearing on the case. It may be that the creditors from whom Kamalanand and Kalikanand borrowed money could have obtained personal decrees against them, and then compelled a partition of the joint family estate; but the irresistible inference is that, so far as Kamalanand and Kalikanand are concerned, they left the joint family properties severely alone and preferred to borrow money on their personal securities. If I am right in my conclusion on this point, the income of the joint family properties would always be available to discharge the debt due to the plaintiffs. Mr. Manuk has, however, argued that the fast, the undoubted fast, is that the joint family properties will be sold up in execution of the plaintiff' decree, should he be fortunate enough to obtain them. That, in my view, is entirely a matter of speculation. The fast that the suits are contested does not decide that there is not available to the defendants sufficient funds to discharge the debts due to the plaintiffs. That question could only be solved by the production of the account-books of the estate; and those books have been carefully suppressed. On this question, as well as on the question of the income derived by the family from Nityanand's share, the following observations of Lard Shaw in the case of Murugesam Pillai v. Manickavsaka Desika Gnana Sambanda Pandora Sannadhi 39 Ind. Cas. 659 : 40 M. 402 at p. 408 : 21 M.L.T. 288 : 32 M.L.J. 369 : 15 A.L.J. 281 : 1 P.L.R. 456 : 25 C.L.J. 589 : (1917) M.W.N. 487 : 44 I.A. 98 (P.C.) are peculiarly applicable: A practice has grown up, said his Lordship, in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough; they have no responsibility for the conduct of the suit, but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of fasts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. The present is a good instance of this bad practice. It is proved in the case by the first witness that the Mutt has regular fair day-books; they are not now before the Court; ledgers are also maintained in the Mutt.' These ledgers and day-books were in the possession of the defendants or those of them who were heads of the institution, and they are not put in evidence. The proposition that these defendants challenged was that the expenses incurred had been incurred for the Mutt and were necessary for its purposes. The best assistance to a Court of Justice would have been a scrutiny of these documents, and their Lordships feel free to conclude that if they had been by their entries confirmatory of the defendants view the defendants would have brought them into Court."
43. Coming now to the actual evidence of extravagance and waste prior to the data of the first bond sued upon, we have to consider what are the charges made against Kamalanand and Kalikanand. Kamalanand is said to have been thoroughly immoral; he is further said to have organized large shooting parties in which money was lavishly spent. The evidence, in my opinion, fails to establish that he had shown any particular tendency in those directions prior to the 18th July 1904. The defendants have, indeed, produced a large number of letters written by two women, Shahzadi and Rajeswari, to Kamalanand. Those letters do not fix the date at all; and, if they establish anything, they establish that his relation with them was purely a matter of business. Apart from the letters, there are three documents Exhibits G3, G5 and G6, which throw considerable light on the question. They are drafts of ekrar-namahs which Kamalanand and Shahzadi proposed to execute in each other's favour. These ekrarnamahs were, of course, not executed, but they show that the parties looked upon the arrangement between them purely as a matter of business.
44. Mr. Manuk has, however, argued that Kamalanand borrowed between five and six lakhs prior to the 18th July 1904 and that it must follow that his career of extravagance had already commenced. The only documentary evidence on this point is the mortgage-bond executed in favour of the Maharajah of Darbhanga on the 7th May 1900 for Rs. 3,50,000. Now, the bond itself has not been produced in the case, but the plaint filed by the Maharajah has been produced. We do not know what the defence of the defendants was or whether the Maharajah has recovered decree against the defendants on the mortgage of the 7th May 1900. If we go by the allegation!' made in the plains filed by the Maharajah, then it will appear that there was a justifying necessity for the loan. In any event, I am not prepared to regard a debt of Rs. 3,50,000 as conclusive evidence of waste and extravagance. The defendant says that, apart from the loan taken from the Maharajah of Darbhanga, they took loans from Ulao Babu, Chetnarain aid Dharam Chand. Durga Prasad gives two other names, Dabi Marwari and Ram Chand Marwari. There is, however, no documentary evidence on this point; and though it may well be that Kamalanand and Kalikanand took various loans from time to time from various persons, I am not prepared to accept the oral evidence that all these loans were taken prior to the 18th July 1901.
45. So far as Kalikanand is concerted, it has been suggested that he wasted nearly three and a-half lakhs, on dogs, motor oars, horses and in machineries for the manufacture, of soap, knives, etc. In my opinion, the evidence is wholly unreliable. In the first plane, it is admitted by Kalikanand that the account books will not show any expenditure in respect of his extravagance. Now, I can imagine the account-books being silent on the question of money from time to time paid to Sbabzadi and Rajeswari; but am wholly unable to believe that the money paid for buying machineries or motor oars would not be entered in the books of account. There in no reason to doubt that Kalikanand, like others in his position, had motor oars, horses and doge; but it is one thing to say that, from time to time, he bought motor oars, burses and dogs, and quite another that, in respect of these extravagances, he spent nearly three lakhs and a half. I wholly disbelieve that he ever spent money in respect of machineries, for I find it difficult to believe that, if he incurred any expenses in connection with his ambition to learn how soap and knives are manufactured, they should not be entered in the books of account, unless it be that he regarded the enterprise as his personal enterprise, in which case, of curse the estate has nothing to complain. Kalika does say in his evidence that he never took any money from the estate for these purposes but that ha always took loans. If he did, his conduct was meritorious in that he made to attempt to learn an art at the expense of the estate. On his own evidence, he did not impoverish the estate to any extent by the zeal which he is supposed to have shown in acquiring a Very useful knowledge.
46. My conclusions on this point t are as follows:
(1) there can be no doubt that Kamalanand was both immoral and extravagant: but, for the most part, he indulged himself, not at the expense of the estate, bat by borrowing money from different person; (2) there is no reliable evidence that he began his career in this direst ion prior to the 18th July 1904; (3) ac far as Kalikanand is concerned, there is no reliable evidence that he was at any time extravagant.
47. It must follow, therefore, that the security of the 18th July 1904 is enforceable as against the joint family.
48. I have now to deal with the validity of the mortgage of the 7th November 1912 executed by Kalikanand in favour of the plaintiffs. It will be remembered that, at this date, Kamalanand was dead. The transaction of the 7th November 1912 amounted to the substitution of a new security for the security of the 18th July 1904 created by Kamalanand and Kalikanand in favour of Banaily which itself was substituted for the security of the 12th September 1903 in favour of Banaily. The presumption of law, therefore, on the authority of Hunoomanpersaud Panday's case 6 M.I.A. 393 : 18 W.R. 81n : Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 (P.C.), is prima facie to support the charge. Their Lordships in the case sited said as follows: "Consequently, if, as is the case here as to part of the charge, it be created by substitution of a new security for an older one, where the consideration for the older one was an old precedent debt of an ancestor not previously questioned, a presumption of the kind contended for by the appellant would be reasonable." On the authority of the Judicial Committee, there is ground to raise a prima facie presumption in the plaintiff's favour of a consideration that binds the estate. The case of the defendants, again, is the same, namely, that they are not bound by a transaction entered into by one who has throughout lived a life of reckless folly. Bat the transaction of the 7th November 1912 was entered into by Kalikanand, and not by Kamalanand; and, if I am right in my conclusion, there is no reliable evidence the Kalikanand was at any time guilty of waste and extravagance. But, than, say the defendants, though Kalikanand may actually have entered into the transaction, it WAS made inevitable by the waste and extravagance of Kamalanand. To this, there is this answer; that if yon are going to trace the transaction of the 7th November 1912 to its origin, there is no reliable evidence that, on the 12th September 1903, Kamalanand had began his career of waste and extravagance, and that the transaction of the 12th September 190?, if I am right in my conclusion, was undoubtedly for the benefit of the joint family. Quite apart from these considerations, there is not the slightest evidence that the plaintiffs or any of them knew or had reason to believe that, though the transaction was prima facie beneficial, it would not in its result, benefit the family because of the character, temperament, and mode of life of Kamalanand. I am, therefore, unable to see how the validity of the transaction of the 7th November 1912 can at all be questioned.
49. There is, in my opinion, another argument in favour of the validity of the mortgage of the 7th November 1912. The evidence makes it perfectly clear that Banaily was about to sue on the mortgage of the 18th July 1904, and that the plaintiffs found the money for the defendants just in time to prevent the suit. Now, it seems that, though the bond was executed on the 7th November 1912, there was a delay in paying the money to Banaily. On that date we have the following letter (Exhibit 13) from Kalikanand to Rajah Kamaleswari:
My dear Rajah Saheb, I thank you very much for your kindly helping me with the money to pay off the Banaily bond, for which I was in great difficulty.
I further assure you that from now the interest of both of your bonds will be paid very regularly to every six monthly due and if I fail to fulfil my promise, you are at liberty to take any action you will take and for this, I will not blame you.
With kindest regards.
Yours very sincerly, (Sd.) Kalika Nand Singh.
On the 11th November 1912, Rai Bahadur Lachmi Prasad Sinha, who wag at that time, the manager of the Srinagar Raj, wrote the following letter to Rajah Kamaleshwari:
My dear Raja Bahadur, We have arranged to pay up all the Banaily dues except the fifty thousand rupees as arranged. To morrow the Civil Courts will re open and so we must reach Bhagalpur to-night and pay off the money before 10 A.M. to morrow, else I hear Shiva Babu will positively file the suit in the first hour. I, therefore, request that you will kindly send your man with the money this evening by the Loop Mail. They will stop with me at Bhagalpur to-night. There is no any earlier train to-morrow except one which leaves here at 10 A.M. and reaches Bhagalpur at nearly 10 o'clock which I think will be too late. Trusting you are well.
Yours Sincerly, (Sd.) Lachmi Prasad Sinha.
On the same day the following telegram was received by Rajah Kamileshwari from Nishikanta Sen. To Rajah Kamleshreari Prasad Singh, Monghyr.
Please pay your money otherwise suit inevitable balance is being arranged no fear when we are helping Srinagar no anxiety when we take six lakhs wire. Nishikanta Sen.
50. Nishikanta San, it may be mentioned, held a general power-of-attorney from the defendants which was executed in his favour at the time of the execution of the mortgage-bond in favour of Prithi Chand Lat, that is to say, 30th October 1912. There is, therefore, prima facie proof of the representations made by Kalikanand in the mortgage-bond of the 7th November 1912 which are to the effect that Banaily was about to institute a suit en foot of the mortgage of the 18th July 1904 and that, if the claim of Banaily was not immediately satisfied, there was likely to be considerable loss to the family. As the Judicial Committee said in the leading case Hunoomanpersaud Panday v. Musammat Babooee Munray Koonweree 6 M.I.A. 393 : 18 W.R. 81n : Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 (P.C.), the representations by the manager accompanying the loan as part of the res gestae and as the contemporaneous declaration of an agent, though not actually selected by the principal, have been held to be evidence against the heir. The correspondence to which I have referred furnish prima facie proof of such representations.
51. Mr. Manuk, whose robust advocacy is always of the greatest assistance to the Court, objected that the documents which I have net out were not proved according to law, How it appears that Rajah Kamaleshwari, in the course of his evidence on commission, produced these documents. They were then tendered in evidence and, as the defendants did not object to them, they were marked as exhibits by the Commissioner, This took place on the 19th September 1915, though, according to the practice in the Mofussil, they were actually filed in Court so far bask as the 18th May 1915. On the 5th December 1917, when the arguments in the case had commenced, the defendant filed a petition objecting to the admissibility of these documents. The learned Subordinate Judge passed no order on this petition.
52. Mr. Manuk's argument is that the refusal of the learned Subordinate Judge to pass an order on his petition was tantamount to his rejecting these documents. In my opinion, the argument is wholly without foundation. It was not in the power of the learned Subordinate Judge to reject documents which had been admitted without protest. Mr. Manuk does not seam to appreciate the distinction between the relevancy of a document and the proof of a document. That question of relevancy is a question of law and can be raised at any stage; but the question of proof is a question of procedure and is capable of being waived. I hold that the question of proof of these documents was waived by the defendants and can no longer be urged before us.
53. Now, if we are at liberty to consider these documents, they undoubtedly establish that there was necessity, and an urgent necessity, for the loan of the 7th November 1912. There is no reason to doubt that Banaily was about to sue on the mortgage of the 18th July 1904; there was no defence to the suit, and Kalikanand, as the hart a of the family, was entitled to exercise his discretion on the question whether it was better for the family to submit to a decree or to take a further loan to discharge the debt due from the family. He did exercise his discretion and applied for a loan to the plaintiffs to enable them to discharge the debt due to Banaily. I am of opinion that, when the discretion of the managing member is exercised bona fide and, as he conceives, for the benefit of the estate, it should not he narrowly scrutinized by the Court.
54. It was lastly argued that there was no enquiry made by the plaintiffs as to the trans-action of the 7th November 1912, and, Indeed, as to any of the transactions on which the present actions have been brought. I confess that it is difficult to appreciate what enquiry could have been made by the plaintiffs. They ascertained that the original transaction by which the defendants purchased Nityanand's share was undoubtedly for the benefit of the estate. They knew that, in purchasing the share, the defendants had to take a loan from Banaily. They enquired into the moral character of Kamalanand and Kalikanand, and the result of the enquiry was wholly satisfactory. They paid the money not into the hands of Kamalanand and Kalikanand, but to Banaily and thus satisfied the loan given by Banaily to enable the defendants to acquire the share of Nityanand. In other words, they saw to the application of the money, and took the precaution to recover from Banaily the mortgage-bonds of the 12th September 1903 and 18th July 1904 executed in its favour by the defendants. They saw that there was a pressing necessity for the defendants to take a further advance on the 7th November 1912, as Banaily was about to sue on the mortgage of the 18th July 1904. In my judgment, such enquiry as was made by them was quite sufficient, in view of the fact that they saw to the application of the money. In my opinion, the mortgage of the 7th November 1912 is enforceable as against the family.
55. In view of my finding on this point, it is quite unnecessary to deal with the question of antecedent debt.
56. There remain three other questions which were argued before us on behalf of the appellants. It was contended that the personal remedy against Kalikanand on the transaction of the 18th July 1904 is barred by limitation the only question is, whether the part-payments upon which the plaintiffs rely have been established. It is sufficient for me to express my entire concurrence with the reasoning employed by the learned Subordinate Judge in coming to the conclusion that the personal remedy is not barred.
57. The next point is as to the validity of the registration. The argument, is this: the mortgage bond of the 18th July 1904 was executed by Kalikanand and by Kamalanand in two capacities, first, on his own behalf, and, secondly, as the father and guardian of Ganganand and Ambikanand. The document was presented for registration by Lachmi Prasad under a power-of-attorney executed in his favour by Kamalanand and Kalikanand. It was argued before us that there was no valid presentation on behalf of Ganganand and Ambikanand fend, accordingly, the document is invalid as against them. It wan not made clear to us how Ganganand and Ambikanand, who ware minors, could either have executed a power-of attorney in favour of Lachmi Prasad or presented the document themselves for registration. The argument is wholly unsubstantial. The only argument which is open to Mr. Manuk, on the admitted fasts, is that there was no valid execution by the minors; bat then, nobody suggests that there was. If it was, then the document would bind them, and the question of benefit and legal necessity would not arise. It is only because the security was brought into existence by the managers of the joint family that the question of necessity and benefit has arisen. I apprehend that, provided that the transaction is one into which a prudent owner would enter, the manager of a joint family is entitled to bind the joint family properties by a mortgage executed by him. It is wholly immaterial whether the minors join in the mortgage or not. As a matter of law, they cannot join in the transaction. The transaction must stand or fall on the determination of the question whether the transaction was one into whish a prudent owner would enter. If it was, then the transaction must bind the joint family properties, although there was no registration, and, consequently, no execution on behalf of the minors. If it was not, then the transaction fails, and it is wholly immaterial whether there was registration and consequently execution on behalf of the minors. I must overrule Mr. Manuk's argument on this point.
58. These are all the questions that arise in connection with First Appeal No. 86 of 1918. In my opinion the arguments advanced by Mr. Manuk are unsustainable, and I would accordingly dismiss First Appeal No. 66 of 1918 with costs.
59. In connection with First Appeal No. 85 of 1918, another question arises, and it will be my duty now to deal with it. The question is, what are the panels intended to be secured by the document of the 18th July 1904? The 19th clauses of the mortgage-bond runs as follows: "For the payment of the loan, principal, interest and compound interest, and of costs in case of institution of a suit, we do hereby mortgage and hypothecate our shares in mauzas entered in Schedule No. 1, allowing the mortgage lien created (?) the bond, dated 3rd June 1894 to stand good, as also shards in mauzas entered in Schedules Nos. 2 and 3 with all rights and appurtenances, appertaining thereto whish belong to us, or may hereafter belong to us. Until the payment of the loan, principal, interest and compound interest, we shall not have the right to transfer the mortgaged properties in any manner, directly or indirectly, on any allegation whatever. The mortgage in favour of the said Rai Bahadur shall have preference and shall take effect from the 3rd June 1894." It is necessary to state that the date 3rd June 1894 is a mistake for 14th Jane 1894 and that the bond of 14th June 1894, which was expressly kept alive by this transaction, was the bond executed by Nityanand in favour of the plaintiffs whereby he mortgaged each portion and whole of his 2 annas, 8-pie share in 16-annas of each of the mamas in Tappa Jamalpur. The schedule at the foot of the bond is in three parts. Specification No. 1 deals with Nityanand's share in the villages appertaining to Tappa Jamalpur purchased by the family on the 28th October 1903 and it expressly keeps alive the security created by Nityanand in favour of the plaintiffs by the bond of the 14th Jane 1894. Then there is the description of the property mortgaged which runs as follows: "Tappa Jamalpur, Purgannah Pharkia, Police Station and Sab-Registry Office of Gogri asli mahal, the dakhli mauzas at whish are given below with kumat lands." Then there follows a list of 52 dakhli villages the total value whereof would be very insignificant. It is conceded that the enumeration is entirely false in the sense that there are numerous dakhli villages which find no place in the list. It is also conceded that not a single mauza finds a place in the enumeration. Bat it is argued that the enumeration of dakhli mautas must be read as restrictive of the general description of the properties mortgaged, that conveyed by the expression "Tappa Jamalpur, Pargannah Pharkia, Police Station and Sub Registry Office of Gogri."
60. Specification No. 2 deals with the two thirds share of the family in Tappa Jamalpur. It is conceded that if Mr. Manuk's argument with reference to Specification No. 1 is right, he must equally succeed on his argument as to Specification No. 2. No question arises as to Specification No. 3, as Mr. Manuk concedes that all the villages appertaining to Taluka Nauhatta have been vailidly mortgaged.
61. In my opinion, there is no difficulty whatever in construing the schedule. Now, the best consternation of deeds, and the one most satisfactory to the Courts, is to make each part expound the other, so as to make all the parts agree; and, if a doubt arises upon the construction of a grant, and the doubt can be removed by construing the deed adversely to the grantor, this will be done, especially where the deed is executed, as here, for valuable consideration. This rule, however, does not tome into operation until a doubt has arisen upon the constriction of the deed.
62. Now, the critical question is whether the description by enumeration ought to be rejected as inaccurate or false or whether it ought to he read as restrictive of the general description contained in the schedule. Now, there are two important considerations which ought not to be ignored. First, the document makes it perfectly clear both in the operative part and is the schedule, that the security created by the mortgage-bond of the 14th June 1894 was to be kept alive and not extinguished. Now, the security created by the bond of the 14th June 1894 was in respect of each and every village appertaining to Nityanand's 2-annas. 4 pie of Tappa Jamalpur. The plaintiffs held the security in their favour, by the transaction of the 18th July 1904. The defendants, who had meanwhile taken a conveyance of Nityanand's share in the entire family properties, and, therefore, in 2 annas 4-pie of Tappa Jamalpur, discharged the debt due by Nityanand to the plaintiffs by taking a fresh loan from the plaintiffs on the security, according to the plaintiffs, of the 2 annas 4-pie of Tappa Jamalpur, and, according to the defendants, of 52 dakhli mauzas appertaining to the 2 annas, 4 pie of Tappa Jamalpur. The question is, who is right? In my opinion the fact that the plaintiffs expressly kept alive the security of the 14tb June 1894 suggests the inference that all the villages appertaining to the 2 annas 8 pie of Tappa Jamalpur which once belonged to Nityanand were intended to be mortgaged. Now, the whole object in keeping alive a scarcity is to enable a party to hold that scarcity as a shield against a hostile attack upon that security. Now, a shield Tithnut a sword would be perfectly useless to the party; in other words, if the transaction which we are at present considering did not intend to create a security in respect of the entire 2-annas 4-pie of Tappa Jamalpur which once belonged to Nityanand so as to give a right to the plaintiffs to enforce the security in respect of that 2 annas 4-pie of Tappa Jamalpur, it would be perfectly useless for the plaintiffs to be told that they tan use the security of the 14th June 1894 as a sheild against a hostile attack.
63. The other consideration is that we have details in the schedule which suggest that the entire 2 annas 8-pie of Tappa Jamalpur was intended to be mortgaged. First, we have the extent of the mortgaged share, 2-annas 8-pie; 2-annas 8-pie in what? The document says, 2 annas 8-pie in Tappa Jamalpur, Pargannah Pharkin, Police Station and Sub-registry Office of Gogri. Then we have the touzi number; touzi number of what? Not of the few dakhli villages which are enumerated in the schedule which cannot have any touzi numbers but of the entire mahal, Tappa Jamalpur. Then we have the mention of the sadar jama, not of the 52 dakhli villages, but of the 2-annas 8-pie of Tappa Jamalpur.
64. It was then argued by Mr. Manuk that it was clearly unnecessary to enumerate the 52 dakhli villages, unless they were intended to be restrictive of the general description. Now, in my opinion, it is one thing to say that I am conveying the dakhli mauzas, a list of which is given below, appertaining to my Tappa Jamalpur, and quite another that I am conveying my Tappa Jamalpur of which the touzi number is this and the saddar jama is so much, the dakhli mauzas of which are as follows. Now, it is quite true that "if there is some land wherein all the demonstrations are true and some where in part are true and part false, they shall be intended words of true limitation to pass only these lands wherein sail the circumstances are true," Take, for instance, a grant of "all there messuages, etc." in the occupation of B, in the City of W, formerly belonging to the Hospital of W, Now there may be messages in the occupation of B, in the City of W. but not belonging to the Hospital of W. Under the rule just stated they will not pass if there are lands wherein all the circumstances are true."
65. But here the enumeration is confessedly inaugurate; and I am of opinion that the case falls under the other rule stated in the books, namely, whenever there if, in the first place, a sufficient certainty and demonstration, and afterwards an accumulative description and it fails in point of accuracy, it will be rejected. That rule has also been stated in this form: as soon as there is an adequate any sufficient definition, with convenient certainty, of what is intended to pass by a deed, any subsequent erroneous addition will not vitiate it. Llewellyn v. Jersey (Earl of) (1843) 11 M. & W. 183 at p. 189 : 12 L.J. Ex. 243 : 63 R.R. 169 : 152 E.R. 767, Morrell v. Fisher (1849) 4 Ex. 591 at p. 604 : 19 L.J. Ex. 273 : 154 E.R. 1350 : 14 L.T. (o.s.) 398 : 80 R.R. 709. In Wert v. Lawday (1865) 11 H.L.C. 375 : 11 E.R. 1378 : 13 L.T. 171 : 145 R.R. 238 Lord Westbury, L.C., stated the rule in these words: that maxim to which I refer," referring to the maxim of false demonstration, "is applicable to a case where some subject-matter is devised as a whole under a denomination which is applicable to the entire land, and then the words of description that include and denote the entire subject-matter are followed by words which are added on the principle of enumeration, but do not completely enumerate and exhaust all the particulars which are comprehended and included within the antecedent universal or generic denomination. The ordinary principle and rule of law, which is perfectly consistent with common sense and reason, is this, that the entirety which has been expressly and definitely given shall not be prejudiced by an imperfect and inaccurate enumeration of the particulars of the specific gift."
66. In my opinion, the passage cited is entirely relevant to the present enquiry. Here some subject-matter has been mortgaged as a whole under a denomination--Tappa Jamalpur with a definite touzi number and a definite sudder jama, which is applicable to the entire land including the dakhli villages, and then the words of description that include and denote the entire subject-matter, namely, Tappa Jamalpur with a definite touzi number and a definite sadder jama are followed by words which are added on the principle of enumeration, namely, the fifty-two dakhli villages, but do not completely enumerate and exhaust all the particulars which are comprehended and included within the antecedent universal or generic denomination, namely, Tappa Jamalpur. It must follow that the entirety which has been expressly and definitely mortgaged, namely, Tappa Jamalpur, shall not be prejudiced by an imperfect and inaccurate enumeration of the particulars of the mortgage.
67. I must dismiss First Appeal No. 85 of 1918 with costs.
Bucknill, J.
68. These two First Appeals were appeals from a decision of the Additional Subordinate Judge of Monghyr, dated the 22nl December 1917. The litigation concerns a sum of money amounting to approximately twenty lacs of rupees. Although the documentary and oral evidence is very extensive the facts are very simple and are capable of being summarized very shortly.
69. One Kumar Srinand Singh was the proprietor of a Urge estate known as the Srinagar Raj situated in this Province near the Nepal border; it seems, with the closely connected domain known as the Banaily Raj, to comprise about 4,50,000, acres (i.e., approximately 700 square miles).
70. Kumar Srinand Singh, who died in 1880, had more than one wife. By the first he had one son, Nityanand Singh, who was born about 1870. By the second he had two sons, Kamalanand Singh and Kalikanand Singh, the former born in 1875 and the latter in 1877. Kamalanand died in 1910 leaving three son, (1) Ganganand Singh, born in 1898, who is here the second defendant; (2) Ambikanand Singh, born in 1903, who was the third defendant, bat who died during the course of the litigation, and (3) Achitanand, born in 1907, who is the fourth defend-ant. Kalikanand is alive and is the first defendant; he, ton, had three sona, (1) Abhayanand, who is the fifth defendant, (2) Bigayand, the sixth, and (3) Jianand, who also died during the course of this litigation. Shortly after Kumar Srinand Singh died, it is stated, that disputes arose between the two widows, i.e., namely, the mother of Nityanand and the mother of Kamalanand and Kalikanand, with the result that in 1882 the management of the estate was placed under the Court of Wards. The property was thus, and well, looked after until 189l when Nityanand Singh, coming of ago, he took over the control of the Raj. The estate was at this date in a very flourishing condition.
71. For some reason, it has been suggested that she was apprehensive as to his management--the mother of Kamalanand and Kalikanand brought on their behalf in 1891 against Nityanand a partition suit which resulted in a compromise decree in 1892 under which Nityanand received one-third and Kamalanand with Kalikanand two-thirds of the Raj. From 1892 to 1896 (when Kamalanand attained his majority) his mother looked after her two sons' joint two-thirds share, bat in the latter year Kamalanand then being of age was naturally placed in charge.
72. In 1898 Kalikanand same of age.
73. Nityanand appears to have led an extravagant and careless life, and though his estate had a revenue of what is said to have been roughly 80,000 rupees per annum he seems quickly to have run into debt. His two step-brothers wore also doubtless improvident for, though in receipt of extremely handsome revenues from their property, their mode of living was so luxurious and their expenses so great, that they, too, seem to have found their income inadequate to provide for the large an ma spent by them (partially in entertaining and hunting) and had recourse to borrowing.
74. None of the three kinsmen appear to have taken any personal part in the management of their domains but to have been content to leave it is the charge of others and merely to revenues and spend their revenues.
75. It is from the string of borrowing translations indulged in be these three gentlemen that the present litigation emanates. The following is a short history of these arrangements:
1. On June 6th, 1894, Nityanand, who had no son, borrowed from one Babu Kamaleshwar Prasad (who was the father of the first plaintiff in these suits) two lacs of rupees: as security he mortgaged (the mort gage bond is Exhibit 1) "each portion and whole of my 2-annas 8 pies share in my proprietorship and possession in 16 annas of each of mutual in Tappa Jamalpur, etc., asli with dakhili, specifications whereof with Parganah Police Station, Registry Office, and sadar jama are entered at the foot of this bond, with all rights, Kamat lands and Zamindary Kutchery, etc.
76. In this deed Nityanand recites that "it is necessary for me and incumbent on me, on account of heavy interest and repeated demands to re-pay Rs. 1,51,677-7-10 principal and interest due under rokas, dated 6th December 1893, 7th December 1893, 28th January 1894, and 25th May 1894, executed by me in favour of Anant Ram Marwari of Bazar Sajaganj, etc., as also under barikhata accounts due to Kalu Main, a Mahajan of Benarea, and on account of fees of B, Grishahandra Banerji, Vakil of Adampur, a quarter of Bhagalpur (torn) I require Rs. 45,322-8-2 for preparation (torn) and purchase of stamp of this bond and for other domestic purposes and there does not appear to be any other means of re-payment and of meeting the necessary expenses than borrowing."
77. The rate of interest was 10 annas per hundred rupees per month, i.e., 7½ par dent., but it was compound interest with rests at the end of every four months, Nityanand does not appear to have paid the interest as it fell due but to have allowed it to accumulate.
2. On March 6th, 1899, Nityanand executed another mortgage bond in favour of Kumar Kamalanand Singh and Kumar Kirtyanand Singh. In it he recited that ha had become involved in heavy debts of which he gives a schedule; that his properties ware held in mortgage on account of several debts; that various decrees had been obtained against hi a and that, in execution of certain of such, come of his properties had bean advertised for sale and that, without borrowing money for the satisfaction of all these debts, there was no hops of saving the properties from being sold. The mortgagees were relatives of Nityanand, being descendants from a recent common ancestor; they were the minor sons of one Raja Dilanand Singh Bahadur and were represented in this transaction by Rani Sita Pati, their mother and guardian. This branch of the family has been referred to in this litigation as the "Banaily Raj."
78. Nityanand borrowed under this deed 3½ lacs at 7 per cent. compound interest with half-yearly rests. (The mortgage bond is Exhibit 45). In the schedule of the debts given, the lean of June 6th, 1894, to Babu Kamaleshwar Prasad is included; with the accrued interest the total then due seems to have been Rs. 2,90,000. Nityanand furnished as security and mortgaged my Zemindari, putni, istimrari, durpatni, and lakheraj rights, etc., to all the immoveable properties in the District of Bhagalpur, Monghyr, Darbhanga, Maldah and Purnea," some of these properties (which were contained in a schedule) had already bean mortgaged; others had not.
3. On May 7th, 1900, Kamalanand and Kalikanand (the former then having one son born in 1898) borrowed from the than Hon'ble Maharaja Sir Rameshwar Singh Bahadur, G.C.I.E., proprietor of the Darbhanga Raj, 3½ lacs at 7½, par sent, compound interest with half-yearly rests. Kamalanand and his son and Kalikanand were members of a joint Hindu family which was governed by the Mitakshara School of Hindu Law. Kamalanand was its karta. We have not had any copy of this bond placed before us but from Exhibit H(1), which is a certified copy of a plaint in a Mortgage Suit No. 172 of 1916 brought on the 28th April 1916 by the Maharaja against Kalikanand and his (then two living) sons and the two (then living) sons of Kamalanand Singh who had, as I have mentioned before, died in April 1910, a certain amount of information can be gleaned as to its nature. In paragraph 4 of this plaint it its recited that Kamalanand and Kalikanand, the adult members of the joint family, were in 1900 in need of about 3½ lacs of repees for the purpose (a) of paying off joint family debts due to different creditors on demand Chitha and on demand notes, etc., and incurred on account of the marriages of Kamalanand and of his relations and those of Kamalanand Singh, as also for the performance of the Namkaran ceremony of the children of the said Kamalanand, and (b) for meeting the expenses of the marriages of the daughters of Kamalanand which were about to take place in the near future, and (c) also for the purchasing of property for the benefit of the joint family.
79. Kamalanand and Kalikanand as security for this loan, mortgaged a considerable quantity of their properties belonging to their joint family. Apparently, there was a covenant by them in the mortgages bond that they would pay off the whole of the principal and the interest within a period of 19 years and that if the arrears due on account of interest exceeded at any time the sum of Rs. 40,000, the mortgagee was to be at liberty forthwith to sue for the entire principal, interest and compound interest due As a matter of fact, only a very small amount was paid off by the mortgagors.
4. On the 11th March, 1902, Kumar Kamalanand Singh and Kumar Kirtyanand Singh, from whom Nityanand had borrowed 3½ lacs, obtained a decree against him under the mortgage, for the sum of Rs. 4,41,286-4-0 which represented the amount due on the original loan plus the interest due. On the 12th September 1908, these decree-holders by a deed of transfer sold to Kamalanand and Kalikanand all their rights under the decree for the sum of Rs, 4,89 679-3-9 This deed of transfer is Exhibit 36. In it after reciting how the decree-holders had lent is a lacs to Nityanand and how and why they had obtained their decree against him, it is indicated that as the properties in the Srinagar Raj belonged as to one third part to Nityanand and as to two-thirds to the transferees but had not been partitioned the transferees had under such circumstances and for their own benefit, decided to buy all the rights and interests possessed by the transferors under their mortgage-bond on the basis of which the decree had been obtained. The transferors did not pay sash for their purchase but entered into a mortgage-band with the transferors under which they borrowed from the transferors 5 lacs of rupees. From this sum was deducted the purchase price of Rs. 4,89,679-3-9. This mortgage-bond is Exhibit 35 and was entered into by the mortgagors Kamalanand and Kalikanand on behalf of their Joint family. This bond recites that they purchased the mortgagee's decree from the decree holders for the benefit of the joint family "with the advise of friends and well-wishers" but that "as they (the mortgagors) had no money in cash at present to pay the price of the said decree as well as to meet other necessities" the loan of 5 lass had accordingly been arranged. The money carried 6 par sent, compound interest with six-monthly rests and was to be paid back on the expiration of one year from the date of the bond. As security, the mortgagors hypothecated a large amount of their family property which it detailed in long schedules.
5. On the 28th October 1903 Kamalanand and Kalikanand bought by deed from Nityanand what he describes as "the whole and the entire interest that I have got together with the right of redemption" with respect to what may be shortly described as his share in the Srinagar Raj. This deed is Exhibit 52 and is a somewhat carious document. It recites the connection between himself and his two step-brothers; how he had encumbered his property and had been unable to pay his debts; the different charges to which the property was subject and how he feared that if he was giver, any considerable lump sum he might spend the whole amount. The consideration was a sum of Rs. 60,000, but this was (with the exception of the sum of Rs. 6,000 which was to be utilised to pay off certain petty debts whish he had contracted) to be doled out to him in the shape of a monthly allowance of Rs. 300. There can be no doubt that Kamalanand and Kalikanand made this purchase on behalf of their joint family in order to round off the previous transaction by which they had acquired the rights in the decree obtained by the Banaily Raj under its mortgage against Nityanand's property.
6. It will be remembered that, under the mortgage of the 12th September 1903, it was nominally incumbent upon Kamalanand and Kalikanand to re pay to the Banaily Raj at the end of the year the 5 lacs which they had borrowed from it. They were not in a position to do so, and accordingly a new arrangement was some to with the present first plaintiff, Raja Kamaleshwar Prasad Singh.
7. Kamalanand and Kalikanand on the 18th July 1904 entered on behalf of their joint family into a mortgage bond whish is Exhibit 11, which is the first bond sued upon this is the bond sued upon in Suit No. 464 of 1914 which is the subject matter of the present Appeal No. 85 of 1918. Both the date of and the bond itself are of vary great importance. It recites at great length the circumstances whish had given rise to the position as it stood that day. Under the mort-mage of the 3rd July 1894, Rs. 4,33,135-8-0 were due to the mortgagee whilst to the Banaily Raj under that of the 12th September 1903 the amount due was Rs, 5,25,815. The mortgagors accordingly borrowed from the plaintiff Rs. 7,33,135-8-0. This sum represented, first of all, the amount due on the bond of the 3rd June, 1904, and, secondly, the sum of 3 lacs of rupees which was utilised in paying off a portion of the Rs. 5,25,815 due by the mortgagors to the Banaily Raj. This large sum carried 6 per cent. compound interest with six-monthly rests. As security, the mortgagors hypothecated their share in a large number of properties over such of which, however, as were already pledged under the mortgage of the 3rd June 1894 the lien of that charge being declared to have preference. There is no doubt that this mortgage was entered into on behalf of the joint family. The interest was never properly paid by the mortgagors in respect of this transaction, and on the data when the plaintiff brought his suit, Section e., in 1914 the, slaim in respect of principal and interest had already amounted to Rs. 12,15,045-7-9.
8. On the same date, viz., the 18th July 1904, Kamalanand and Kalikanand executed a mortgage-bond in favour of the Banaily Raj. This mortgage-deed only really constituted are arrangement of the previous mortgage of the 20th September, 1903. Under the mortgage the amount due was Rs. 5,25,815. With the money borrowed from the plaintiff the mortgagors had paid off 3 lac of this amount and in addition another small sum, and they now gave a fresh mortgage for the balance, viz., Rs. 2,25,000, after having made some adjustments with regard to the properties which they gave as security for the new substituted loan. The loan bore compound interest at 6 per cent. with six-monthly rests.
9. The last transaction, which concludes the series, was entered into on the 7th November 1912. On that date Kalikanand, purporing to act on behalf of the joint family, (Kamalanand being then dead) executed a mortgage in favour of the first plaintiff. The effect of this bond was to extinguish the bond of the 18th July 1904 executed by Kamalanand and Kalikanand in favour of the Banaily Raj and to substitute the first plaintiff in its plans. The amount of the debt due under that bond had reached Rs. 3,34,000, The sum now borrowed from the first plaintiff was 3 lacs which was utilised (together with the sum of Rs. 34,000 otherwise provided) to pay off the amount due under the mortgage of the 18th July 1904 to the Banaily Raj; and mush property was given by the mortgagors as security for the loan. This bond forms the basis of Suit No. 465 of 1914 and of Appeal No. 86 of 1918. The amount claimed in respect of principal and interest under the bond was Rs. 3,41,029-3-0.
80. The Officiating Subordinate Judge of Monghyr, by his decision, dated the 22nd December 1917, decreed both suits in full in favour of the plaintiffs with costs. The arguments which were put forward before this Court were very numerous and very lengthy, but it will be seen that the whole subject-matter of the two suits can rightly and conveniently be divided into three headings:
(1) That part of the mortgage of the 18th July 1904 (Exhibit 11) executed by Kamalanand and Kalikanand in favour of the first plaintiff which relates to the payment of the Rs. 4,33,135 due under the mortgage of the 6th June 1891, which was secured on Nityanand's separate share in the property.
(2) That, part of the same mortgage, Exhibit 11, which related to the payment to the Banaily Raj of 3 lass of rupees in respect of the Rs. 5,25,815 then due to it under the mortgage of the 12th September 1903 made by Kamalanand and Kalikanand in its favour in respest of the purchase of that Raj's decree for Rs. 4,89,679 as a result of its mortgage over Nityanand's share made on the 6th March 1899.
(3) The mortgage of the 7th November, 1912 (Exhibit 17) which is again in relation to the payment of what still remained then due to the Banaily Raj in respect of the same transaction mentioned in heading (c).
81. With regard to (1). It is quite clear that when Kamalanand and Kalikanand bought on behalf of the joint family on October 28th, 1903, the rights remaining in his property of their step-brother Nityanand they purchased the estate subject to the encumbrance created by the mortgage of June 6th, 1894; but at that date they incurred no direst obligation to the plaintiff as the liability was then only upon the land and upon Nityanand. The crucial date is, of course, July 18th, 1904, when Kamalanand and Kalikanand, on behalf of joint family paid off the sum of 4,33,135 rupees, at which sum the liability under the mortgage of June 6th, 1894, then stood; borrowing money on the security of the joint family property so to do.
82. Now, how can such a transaction be justified or supported?
83. It is urged here that it can on three different grounds-
(a) On the ground of family necessity.
(b) On the ground of family benefit.
(c) On the doctrine of antecedent debt.
83. As to (a) Family necessity. Now, what was the real nature of the transaction? It was simply part of the purchase of Nityanand's property.
84. Now, although this purchase may have been Very desirable and convenient both from a practical and sentimental point of view--practical, because it brought together once more properties which were being separately administered, and sentimental, because it prevented the falling into the hands of strangers of a large portion of what had once been the old ancestral domain of the Srinagar Raj--I cannot bring myself to regard it as in any way a family necessity; so obvious do I consider this fact that I do not propose to discuss this point further.
85. With regard to (b) Family benefit. This is a far more debatable question.
86. It has to be considered whether the purchase was really for the family benefit; and it is on this point that the main part of the lengthy arguments have been addressed to us.
87. The contentions put forward on behalf of the minors have been presented to us upon two general lines.
A, That, having regard to what has been frequently designated the "psychology" of this case, the plaintiff must have known that the transaction would not actually ensure to the benefit of the family.
B. That, in fact, the transaction was a bad bargain for the joint family at the date of the loan (18th July 1904).
88. I think it is as well to point out as a preliminary that it must be always borne in mind that, although large turns are-being dealt with in connection with all these loans and this litigation, the principal figures, i.e., Nityanand, Kamalanand, Kalikanand and the Kumars of the Banaily Raj, were and some still are largo landed propitiators of great wealth and considerable importance.
89. There was adduced before the Court below a great quantity of evidence (much of which has been read before us and of which I have no doubt a certain amount is true) to show that the three sons of Srinand Singh were of very extravagant habits, and that Nityanand and Kamalanand ware in addition dissolute and immoral.
90. I am quite prepared to assent the view that all three wars always very careless about money, that Nityanand and Kamalanand lived, at times, what, by more respectably minded people, would be regarded as profligate and sinful lives; that vary large amounts wore at times expended upon hunting parties, sporting or luxurious hobbies or pursuits, entertainments, and even upon courtezans, and other parasites; and, indeed, there is no doubt that, generally speaking, these young men succeeded for a long time in living beyond their handsome income a and failed to perform, to their position or their inheritance, those duties which they, quite wrongly, thought beneath their dignity.
91. All these features may be vary lamentable, but the salient fast remains that on the data of the mortgage, i.e., 18th July 1904, Kamalanand (than 29 years of age) and Kalikanand (then 27) who were the proprietors of an estate worth perhaps 40 lacs, had, so far as we clearly know, only encumbered their estate (apart from the purchase of their step-brother's property) by borrowing in May 1900 3½ lacs from the then Maharaja of Darbhanga (Exhibit 41); and that loan was contrasted, so far as we know legitimately, for various beneficial or necessary family purposes.
92. I do not think that such an encumbrance is of any material importance assuming even (as I do for the moment) that it was known to the first plaintiff in this case.
93. It is also important to notice that the money barrowed for paying off the mortgage of June 6th, 1894, did not go into the pockets of Kamalanand and Kalikanand.
94. The fact that, as it has turned out, little attempt was made, apparently, to pay off the principal or even interest on the loan contracted on 18th July 1904 seems to me to be not very material. I think that it would be throwing far too great a burden upon one who lands money to the karta of a joint Hindu family subject to Mitakshara Law to demand from him a correct prophecy at the date of the transaction as to whether it will or will not turn out beneficial to the family.
92. Whilst, no doubt, if the transaction does, in fast, later, show advantage, his position is thereby strengthened if not actually substantiated (one may be sure it would never be repudiated), the converse is not, necessarily, the case; there may be innumerable reasons why an affair which at the data of its inception promises well subsequently emerges unsuccessful.
93. This line of argument cannot really be put higher than by way of suggesting that the habits of the borrowers ware so notoriously bad that the lenders must or ought to have known that there was no likelihood of the brothers attempting to meet their obligations under the bond and that their real object in entering into the transaction was merely to gain an immediate increase of their income from the revenues of the purchased property with the object of indulging further in their thriftless modes of life. I do not think that this is an argument which can really be supported. I do not think, the it at the date of the transaction, there existed any ground which would justify this Court in saying that the lenders were merely pandering to improvident persons. The truth is, that one must be thrown bask, in order to express a proper opinion, upon a consideration of whether in fact the bargain at the date of the loan was one beneficial, so far as a prudent person could any, to the interests of the family, It may here by pointed out that the transaction was apparently carried out, under the advise of Mr. Weatherall, the Manager of the Raj, and not in haste or without investigation and consideration, A great deal of ingenuity has bean displayed and much detailed matter placed before this Court in an endeavour to show that the bargain was prima facie a bad one; bat I feel that this effort has on the whole quite failed. I feel satisfied that the revenue derived from the property was far more than adequate to meet the interest payable and that the value of the estate was very much more than was paid for it by the borrowers. In my view, therefore, this part of the transaction was justifiable as being for the benefit of the family.
94. This being my view, it seems hardly necessary to express any opinion as to whether this part of the loan could be supported, as is argued, on ground (c), i.e., by the application of the doctrine of antecedent debt; but I think, perhaps, that it is desirable that I should do so even if very cursorily. It appears to me that when the two brothers bought on October 28th, 1903, from Nityanand his estate, it is clear that they then took upon themselves and incurred the debt which Nityanand owed under the mortgage of June 3rd, 1894, and became liable at any rate to indemnify Nityanand in respect thereof. They thus incurred a liability which, go far as the relative part of the transaction of the 18th July 1904 was concerned, might in law be regarded as to it an antecedent debt and on that ground capable of supporting the corresponding material portion of the loan now under consideration.
95. We next have to deal with heading No. 2, i.e., the other portion of the transaction of July 18th, 1904. It consists of the borrowing by Kamalanand and Kalikanand of 3 lacs from the first plaintiff for the purpose of, paying off to the Banaily Raj a substantial portion of what was owing by them to that Raj under the mortgage of September 12th, 1903. Kamalanand and Kalikanand had borrowed this money in order to pay for the purchase of the decree obtained by the Banaily Raj against Nityanand and the present transaction constitutes to my mind a typical instance of the kartas of a joint Hindu family governed by Mitakshara Law charging the family property with an encumbrance for the purpose of paying off an antecedent debt. This antecedent debt was certainly not incurred for immoral purposes but for the purposes of buying the decree which the Banaily Raj had obtained against Nityanand's property and though it may be that this antecedent debt was itself secured by a mortgage on the family property, yet we are bound by the recent decision of the Full Bench of this Court in Second Appeal No. 370 of 1919, Mathura Misra v. Rai Kumar Misra 62 Ind. Cas. 132 : 2 P.L.T. 407 : (1921) Pat. 245. The two debts are clearly disassociated both in time and in fact. On this ground, therefore, it seems to me that this portion of the transaction is unassailable.
96. But, apart from this, this part of the transaction is also one actually attached quite as closely as was the other portion to the acquisition by the two brothers of Nityanand's estate; and if that part of the transaction first dealt with is capable, PS I have stated that I thought it was, of being supported on the ground of family benefit there is no reason why this other portion of the transaction should not be similarly upheld. For the above reasons, I am of the opinion that the plaintiffs should succeed on this bond in their suit.
97. We now some to (3), that is to say, the transaction which is identified with the mortgage-bond of November 7th, 1912 (Exhibit 17) which formed the basis of suit No. 465 of 1914. Now, here, the circumstances surrounding and the date of this bond were different to those connected with the transaction of the 18th July 1904.
98. First of all, the money, 3 lacs, is borrowed to pay off the amount still remaining due to the Banaily Raj under the mortgage by Kamalanand and Kalikanand executed on the 18th July 1904 in favour of the Banaily Raj. The amount was the balance due under the old transaction of 1903 under which the brothers had bought the decree of the Banaily Raj which it had obtained against Nityanand. But Kamalanand had died on April 14th, 1910, and this bond (Exhibit it) now sued on is executed by Kalikanand as karta of the family on behalf of himself, his three sons and the three sons of the deceased Kamalanand. It is not contended that the doctrine of antecedent debt can be applied in the case of this transaction, nor could it indeed, have been successfully urged; for the reason that Salikanand's nephews would not be amenable to the incidences of the doctrine which is only applicable where the relationship of father and son exists; and, though, if Kalikanand and his sons had alone' been affected by the transaction, the doctrine might well have been sailed in aid by the plaintiff, the existence of the nephews, whom Kalikanand purported to bind as their karta, prevent it from being untilized. The liability of Kalikanand and his sons under the doctrine of antecedent debt cannot be supported if other mortgagors (here the nephews) are not liable under the same doctrine; it is not legally possible to split the liability of mortgagors in any such way as this.
99. But it is contended that though it is admitted that the doctrine of antecedent debt cannot be applied here yet it was open to Kalikanand to bind his nephews (Kamalanand's sons) if the transaction was either for family benefit or family necessity. It is strongly urged for the respondents that in this transaction both elements of family benefit and family necessity were present and these contentions must both be carefully examined.
100. Firstly, then, as to family benefit: At the date of the loan (1912) was the transaction really a beneficial one to the family? A good deal had taken place since 1904. Kamalanand had died after living a forward and no doubt extravagant existence; the interest on the Banaily Raj's loan had not been fully paid and rather more than a lac had accumulated and was due. The old loan had been made at 6 per sent, compound interest with half-yearly rests; the new loan was on the same terms. Was there any advantage, then, in substituting the first plaintiff for the Banaily Raj? In the first place, it is said that the Banaily Raj was threatening to sue on its mortgage; and it is no doubt true that this was so. It may be said that to avoid this suit which could not but be followed by a sale of the property, the new arrangement was for the family benefit; and though this argument has been addressed more fully towards the contention that there was family necessity, it is not possible to consider the question of family benefit disassociated from this pressure or threat of litigation. Eight years had elapsed since the loan by the Banaily Raj end during that period the amount due under the bond had swollen, owing to the fact that the interest had been but irregularly paid, from 2,25,000 rupees in 1904 to 3,34,000 rupees in 1912. The Banaily Raj could only have sold, in execution of any decree which it might have obtained under its mortgage, such properties as were mortgaged to it. The effect of the new transaction on the family property was that Kalikanand pledged to the plaintiff more property than had been hypothecated to the Banaily Raj to secure a sum less than that due to the Raj by Rs. 34,000. Such a transaction, considered without further factors, would not prima facie be for the family benefit; but if it was entered into for the purpose of saving the sale by the Banaily Raj of the family property mortgaged to it, the transaction may very well be regarded as for the benefit of the family.
101. True it is, that more of the family property had to be charged, but that was due to the non-payment of interest in the past and was a fact which, however regrettable, had to be faced. True, too, it may be that, in the interval, the conduct of the brothers had been marked by extravagance but, unless it can be shown that the first plaintiff was here in making this loan, deliberately and mala fide merely indulging Kalikanand in his desire to be extravagant, or knowing as a prudent man from Kalikanand's past unbusiness like and careless habits that the transaction could not, within any reasonable probability, turn out to the family's benefit, I do not think that either the passing of the years with the brother's conduct in the interval between 1904 and 1912 or the accumulation of interest are very material factors, if it is clear that, as I consider was the case, the object of the new arrangement was to save the family property from being sold. I do not consider that there is any evidence adequate to saddle the plaintiff with any such imputation.
102. I think, therefore, that, under all the circumstances, the transaction must be regarded as having been for the benefit of the family.
103. As I have already expressed my view that the transaction was for the benefit of the family, it may seem somewhat redundant to give any opinion as to whether the transaction was for family necessity; but the point was strenuously argued and I do not like to pass it over.
104. I have already said that I did not think that the question of family benefit could fairly be dealt with separately and apart from the factor which is here urged as constituting family necessity. There is, to my mind, ample evidence to show that the Banaily Raj had been pressing the mortgagors to make payments due under the bond of July 18th, 1904; and further, that the defendants were aware that that Raj was on the verge of commencing a suit against them (Exhibits 14 and 15).
105. The fast is incidentally referred to in the mortgage-deed itself where in Section 7 it is recited that "the Banaily Raj was inclined to institute a suit." Nor is it a matter for surprise as for sometime nothing material had been paid under the bond to the Raj.
106. Now, if a parson who has lent money to a karta on the security of joint family property gives clear evidence of his intention of forcing there payment of the loan and if the borrower sees no means of paying back the loan to the lender without sacrificing the family property, are such circumstances which can be called family necessity justifying the borrower making arrangements with some third person ready to pay off the loan and as it were to be substituted as lender.
107. I have no doubt but that it should be in general so regarded. Nor do I feel any doubt that it was the pressure from, and the threatening attitude of, the Banaily Raj which led the defendants to make the new arrangement with the plaintiff.
108. I, therefore, consider that there were conditions of family necessity here present which justified a re-arrangement and the execution of the new bond, and that the plaintiffs should suaceed in their suit upon it.
109. Before concluding my observations I think it desirable that I should take notice of the fact that there were certain minor points which were argued before us for the appellants in connection with portions of their appeal. These were three in number.
(1). A contention that in connection with, the transaction of the 18th of July 1904 any personal remedy against Kalikanand was barred by limitation. I need only say with regard to this contention that I felt satisfied, that there had been periodical payments which take the question of limitation outside the region of any practical argument. These payments were, in my opinion, satisfactorily established and, although it was suggested that they had not really been made in behalf of the mortgagees, I think that there can be no doubt whatever that they were in fact payments made on behalf of the debtors in the ordinary course.
(2) It was contended that the registration of the bond of the 18th July 1904 was not made on behalf of the minors and that, therefore, as far as they were concerned, the bond did not bind them. I have had the advantage of, reading the judgment of my learned, brother on this point and 1 entirely agree with the conclusion at which he has arrived, namely, that as the bond was executed by the kartas on behalf of the joint family so a registration by the kartas would, whether the minors were at the registration mentioned by name or not, be effective in binding the minors.
(3) The third question which arose was so to the extent of the property which passed as security under the mortgage of the 18th May 1904. Here, again, I have had the advantage of perusing my learned colleague's observations upon this point. There is no doubt that the schedule is somewhat misleading when read with Clause 19 of the bond. On the other hand, when the document is considered as whole, it seems to me that it is quite clear that my learned colleague has taken the correct view of what passed under the mortgage, and, to what he has stated, I do not think I need add anything except to say that I am in agreement with him.