Patna High Court
Hanumat Mahton And Ors. vs Sonadhari Singh And Ors. And Chintaman ... on 11 July, 1919
Equivalent citations: AIR 1920 PATNA 708
JUDGMENT Jwala Prasad, J.
1. This appeal arises out of a suit instituted on 3rd January 1917 to enforce a mortgage bond, dated the 5th January 1904, executed by defendant No. 1.
2. Originally defendant No. 1 the executant of the bond, and his brother defendant No. 2 only were impleaded, hut on the objection of the defendants, their sons also were added as defendants on the 5th March l917. The defendant No. 2 and his sons were, however, subsequently on the application of the plaintiff deleted from the category of defendants. The suit, therefore, proceeded to trial against defendant No. 1 and his sons, who are appellants here.
3. The first Court held that the mortgage-bond in question is a genuine document and was duly executed for valuable consideration. It, however, dismissed the suit on the grounds 11 Ind. Cas. 663 : 34 A. 4 : 8 A.L.J. 1015 that certain necessary defendants were not impleaded in time, and 24 Ind Cas. 356 : 26 M.L.J. 528 : 16 M. L. T. 76 : 1 L. W. 544 that the sons were not benefited by the loan and hence they or the joint family property amortgaged in the bond could not be made liable for the debt.
4. On appeal the learned District Judge agreed with the Munsif that the suit as against the appellants was barred by time, but disagreeing with the Munsif on the second point gave a mortgage decree against defendant No. 1 alone, with the usual direction that the property mortgaged in this bond was liable to be sold for the satisfaction of the decree; This property is said to be the ancestral property of the family in which the appellants as members of the joint family are interested. They have, therefore come to this Court in second appeal and contended that the order in the decree of the lower Appellate Court directing the sale of the family property is illegal and should be' set aside. There is no substance at all in their contention. The ground upon which the mortgage decree is assailed is said to be that there was no family necessity for which the mortgage debt 'was incurred and hence the family property could not be mortgaged by defendant No. 1 and be liable for the debt. The bond in question recites that the money was taken to meet the expenses of litigation. The finding of fact of the Court below that the money was borrowed to meet the expenses of a cattle trespass case brought against the defendant No. 1, the karta of the family, that the family was benefited by this loan and the family property was liable disposes of this appeal.
5. It is, however, contended that the purpose' set forth above, namely, to defray the expenses' of a criminal case against the defendant No. 1 was not a legitimate purpose-for which the family property could be liable and that the loan in question did not in fact benefit the other members of the family, notably the appellants in this case.
6. The point seems to have been settled by the decisions of several High Courts and particularly of this Court. In the case of Beni Ram v. Man Singh 11 Ind. Cas. 663 : 34 A. 4 : 8 A.L.J. 1015 it was held that the necessity of raising money to pay for the defence of the head member of a joint family committed to the Court of Session on serious criminal charges of forgery and fabrication of documents under Sections 467 and 471, Indian Penal Code, was valid and legal, such as would support a mortgage of the family property executed by the father and one of the sons as security for the debt incurred, it was there pointed oat that according to the Mitakshara Law one member of a joint family may effect a gift, mortgage or sale of the family property in time of disgrace and for family purpose? The stigma of a criminal charge against a member of a joint family is regarded among the Hindus as a disgrace to all the members of the family and any expenses incurred to protect the family from such a threatened disgrace would necessarily be in the interest of all the members of the family.
7. The principle was reiterated in the case of Ram ding am Pillai v. Muthayyan 24 Ind Cas. 356 : 26 M.L.J. 528 : 16 M.L.T. 76 : 1 L.W. 544. The early authorities on the subject have all been cited in the aforesaid two oases. No doubt in the case of Nathu Rai v. Dindayal Rai 39 Ind. Cas. 665 : 2 P.L.J. 166, decided by a Division Bench of this Court on the 4th January 19l7, it was held that the manager of a Hindu joint family is not entitled to spend the family funds in his own defence to a criminal charge, nor is he entitled to hypothecate the family property in order to raise money to meet the expenses of such a defence, except upon the ground of consent of the members of the joint family or upon the ground that from the circumstances it could be inferred that the other members of the family had consented. In that case no family property was, however, hypothecated in the bond, nor was there anything in the bond to shew that the debt was incurred by the manager of the family in his representative capacity. Upon the facts of that case the manager of the family intended that the debt should be his own personal debt. It the decision, however, intended to lay a general proposition that in no case the karta of a joint Mitakshara family can bind the other members in respect of debts incurred by him in defending himself against a criminal charge, its authority would be liable to objection, it is obvious, however, that there was no such intention of the learned Judges in that case to lay down such a broad proposition, for the judgment of the Court was delivered by Mr. Justice Chapman, who only a few months later on the 22nd of March 1917 held in the case of Chuman Chaudhury v. Musammat Ram Sunder Chwihurain 39 Ind. Cas. 861, which is on all four's with the present case, that the son would be bound to pay the debts incurred by his father in defending himself against a criminal charge, especially when the offence charged did not involve any moral turpitude.
8. This last case was, therefore, rightly followed by the Court below. The contention of the learned Vakil is, therefore, ovarruled and the appeal is dismissed with costs, Das, J.
9. I agree.