Patna High Court
Sheotahal Singh And Ors. vs B. Arjun Das And Ors. on 10 March, 1920
Equivalent citations: 56IND. CAS.879, AIR 1920 PATNA 70
JUDGMENT Das, J.
1. These analogous appeals some before us from the judgment of the Additional Subordinate Judge of Monghyr and arise out of suits instituted by the respondents to enforce mortgage-bonds against the appellants.
2. It appears that the defendants in each of the actions are members of a joint Mitakshara Hindu family. The two families, who were once joint but are now separate, joined in taking a lease for 7 years of certain valuable lands in Mouza Chor Kusumbha, for which they had to pay a premium of Rs. 1,500. They paid the earnest money out of their own funds and on the 14th July 1909 they raised the balance from the plaintiff and executed the mortgage-bonds in question in his favour. Exhibit 1 is the mortgage bond executed by Sita Ram Singh who is one of the appellants in First Appeal No, 197 of 1915. The other appellant in this appeal is the minor son of Sita Ram Singh. Exhibit 2 is the mortgage bond executed by Sheo Tahal Singh and Ram Tahal Singh, who are the appellants in First Appeal No. 196 of 1917. The other appellants in this appeal are the minor sons of Ram Tahal Singh and a son of Sheo Tahal Singh, who was a minor at the time of the transactions in question but who has since attained majority. The learned Subordinate Judge discussed all the issues raised in the suit and gave the plaintiff the usual mortgage decrees.
3. The learned Vakil for the appellants, in the first place, urged before us that the signatures, purporting to be the signatures of Ram Tahal Singh as an attesting witness in Exhibit 1 and as one of the executants in Exhibit 2, are in fact not the signatures of Ram Tahal Singh and that the bonds consequently cannot be sued upon. In the second place he argued, an argument confined to First Appeal No. 196 of 19l7, that Sheo Tahal Singh delivered to the plaintiff 3,969 maunds of grain valued at Rs. 7,131-12-0 by way of part payment and that the plaintiff ought to have given him credit for the whole of this amount in his account, whereas he has given him credit only for Rs. 1,000.
4. The consideration of these points need not detain us long. I will first deal with the question of forgery. On this point the chief criticism is that the Subordinate Judge should have given Ram Tahal Singh a reasonable opportunity to call a handwriting expert. After a careful perusal of the order-sheet in the case I am unable to agree with the learned Vakil. But although I am clearly of opinion that the question of adjournment was in the discretion of the learned Subordinate Judge and that it has not been shown in this case that that discretion was unreasonably exercised, still we intimated to the learned Vakil that we would give him an opportunity to call an expert witness, if the evidence recorded in the case left any doubt in our minds as to the genuineness of Ram Tahal's signatures, A perusal of the evidence in the record has, however left no manner of doubt in our minds that the signatures of Ram Tahal in Exhibits 1 and 2 are genuine and that an impudent attempt has been made to escape from the liability under the mortgage-bonds.
5. It is worthy of note that though Ram Tahal denies his signatures in Exhibits 1 and 2, he admits having admitted execution of Exhibit 2 before the Sub-Registrar. His story is that he and his brother were threatened with a criminal prosecution if he refused to admit the execution of the document before the Sub-Registrar. This atory I absolutely disbelieve for two reasons: first because until he filed his written statement in the Court he never told anybody that the plaintiff had caused his signature to be forged in Exhibit 2, although, if his evidence is to be believed, he certainly knew of the forgery on the 16th July 1909 when he admitted having executed the document before the Sub-Registrar, and secondly because Sheo Tahal in his written statement did not attack the signatures of his brother as forgeries although that would be a complete defence to the suit.
6. In my view the evidence is conclusive on this point, and it would have been useless to adjourn the hearing of the appeal to enable the appellants to call an expert witness. Experts, like lawyers, differ in their opinion, and when the admitted facts lead to one conclusion and to one conclusion only, it would be in the highest degree unsafe to rely on expert testimony, assuming that that testimony would be in favour of the appellants.
7. The second point is equally without merit. The plaintiff has produced his books of accounts, whereas the defendants have withheld them. There is, no endorsement of the payment of Rs. 7,131 120 on the back of the bond, although the bond itself provides that no payments other than those endorsed on the back of the bond would be recognised. I hold that the decision of the learned Subordinate Judge on these points is right and must be affirmed.
8. I now come to the main and indeed the only point in the case, namely whether the mortgage bonds are enforceable against the joint families. In his very able argument before us Mr. Naresh Chandra Sinha contended that the transactions must inevitably fail on the very recital of the necessity for the loans in the mortgage bonds themselves. The mortgage bonds show that the money was borrowed in order to pay the premium in respect of a lease for 7 years which they took from certain persons. It is established that the lease was of considerable benefit to the joint family, for though they had to pay a premium of Rs. 1,500 and a yearly rental of Rs. 30,000, they made a profit of Rs. 15,000 or Rs. 16,000. This is what Sheo Tahal himself, in the course of his evidence in a previous suit, admitted. Raj Kumar Singh, one of the witnesses called by the defendants, admitted that the income from the property taken over by the defendants was Rs. 40,000. In my view there can be no doubt at all that the families lies have greatly benefited by the mortgage transactions. The defence is, therefore, a dishonest one, but it may still be a legal one, and the question for our determination is--is the defence put forward by the defendants a legal defence?
9. Mr. Sinha argues that the real test is, not whether the transaction was for the benefit of the joint family bat whether it was for a justifying legal necessity. I can find no support for this proposition in the oases. In the leading case of Hunoomanpersaud Panday v. Mummmat Babosee Munraj Koonwatee 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: "The power of the manager for an infant heir to charge an estate not his own is, under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. Bat 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 it, in the particular instance, is the thing to be regarded." This passage has always been understood as recognising the powers of the manager of a joint Hindu family to affect or dispose of joint family property in the ordinary course of management and for the benefit of the joint family. In my view the manager of a joint family has an implied authority to do whatever is best for all concerned, and the test in each case is, was it a transaction into which a prudent owner would enter in order to benefit the estate? Mr. Sinha, however, argues that the latest decisions of the Judicial Committee have modified the rule laid down by Lord Justice Knight Bruce and that the rule is now well-recognised that in order to bind the joint family properties the mortgagee must show that there was a justifying family or estate necessity for the loan. In other words, according to Mr. Sinha, the creditor must show that there was a calamity affecting the whole family requiring the alienation or that the support of the family rendered it necessary or that the indispensable religious duties made it unavoidable. It becomes necessary, therefore, to examine the cases on which Mr. Sinha relies.
10. The first case relied upon by Mr. Sinha is the case of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 21 C.W.N. 698 : 1 P.L.W. 567 : 15 A.L.J. 437 : 19 Bom.L.R 498 : 26 C.L.J. l : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 39 A. 437 : 44 I.A. 126 (P.C.). It was not suggested in that case that the joint family was in any way benefited by the debt contracted by the karta and consequently it was not necessary for the Judicial Committee to discuss the point that has been raised before us. But Lord thaw in the course of his judgment did say as follows: "The law of the Mitakshara has, however, given to the father in his capacity of manager and head of the family certain powers with reference to the joint family property. The general principle in regard to that matter is that he is at liberty to affect or to dispose of the joint property in respect of purposes denominated necessary purposes. The principle in regard to this is analogous to that of the power vested in the head of a religious endowment or Muth, or of the guardian of an infant. In all of the cases where it can be established that the estate itself, that is under administration, demanded, or the family interests justified, the expenditure, then those entitled to the estate are bound by the transaction," It will be noticed that the term deliberately used by Lord Shaw 13 "necessary purposes," which, in my view, is wider than the term "necessity". Family or estate necessity is undoubtedly a "necessary purpose" for which the manager of a joint Hindu family can affect or dispose of joint family property, but is by no means the only 'necessary purpose' contemplated by Hindu Law, as understood and administered in our Courts. In my view the case of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 21 C.W.N. 698 : 1 P.L.W. 567 : 15 A.L.J. 437 : 19 Bom.L.R 498 : 26 C.L.J. l : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 39 A. 437 : 44 I.A. 126 (P.C.), far from narrowing down the dictum of Lord Justice Knight Bruce, has recognised and approved of it.
11. The next case relied upon by Mr. Sinha is that of Palaniappa Chetty v. Sreemath Deivasikamony Pandara Sannadhi 39 Ind. Cas. 722 : 40 M. 709 : 21 C.W.N. 729 : 16 A.L.J. 485 : 1 P.L.W. 697 : 33 M.L.J. 1 : 19 Bom.L.R. 567 : 22 M.L.T. 1 : (1917) M.W.N. 507 : 26 C.L.J. 153 : 6 L.W. 222 : 44 I.A. 147 (P.C.). In that case, the grant, at a fixed rent and on payment of a premium, of a permanent lease by a Shebait of a portion of the lands dedicated to the worship of the idol, of which he was a trustee, was in question before the Judicial Committee, and the Judicial Committee held that such a grant was invalid as against the successor in Shebaitship, as the evidence did not establish that the Shebait was constrained by any necessity to make such a lease, or that any benefit accrued to the estate from it. When the case is carefully examined, it will be found that the decision really rests on the view of the duty of a trustee to act in accordance with the trust deed. Lord Atkinson, in the course of his judgment, said as follows: 'Should the property, the subject of such an endowment as this, have been formally dedicated to the deity or the idol for worship in the temple by a deed of endowment, it would presumably contain directions as to the mode in which the property is to be used, and its income applied for the particular religious or charitable purposes mentioned in the instrument. But where, as in the present case, no deed of this kind is forthcoming, the rules according to which the property and its income are to be dealt with in order to carry out the intention of the original endower can only be ascertained by inference from the practice proved by evidence to have been followed in the particular case of Ram Parkash Das v. Anani Das 33 Ind. Cas. 583 : 43 C. 707 : 20 C.W.N. 802 14 A.L.J. 621 : (1916) 1 M.W.N. 406 : 31 M.L.J. 1 : 18 Bom. L.R. 490 : 3 L.W. 556 : 24 C.L.J. 116 : 20 M.L.T. 267 : 43 I.A. 73 (P.C.). But these rules, so to be inferred, must not in their Lordships' view be inconsistent with or repugnant to the very nature and purpose of the endowment. If, for instance, the worship of the idol in the temple be intended to be perpetual, as it could hardly fail to be, then the preservation and use of the dedicated property to support and maintain that worship must, they think, be assumed to have been similarly intended to be perpetual. A rule, therefore, which would authorize and empower the Shebait of such a temple, arbitrarily, at his own mere will and pleasure, to alienate the dedicated property, either bit by bit or en bloc would be so repugnant to the whole purpose and object of the endowment that it could not, in their view, be rationally held to embody the intention of the original endower." He did undoubtedly examine the meaning of the terms "necessity" and "benefit of the estate": but I do not think that his judgment contains a complete definition of those terms. The arguments before us proceed on the hypothesis that the powers of a Shebait to affect or dispose of trust properties are exactly the same as those enjoyed by the manager of a joint family property. This, in my view, is a mistake. The powers are no doubt analogous to those of the manager of a joint family property, in the sense that they correspond or bear some resemblance or proportion to the powers of the manager of a joint family property; but still, in determining whether in a particular case the authority has been exceeded or not, we must have regard to what is usually done in the ordinary course of management, The manager of a joint Hindu family may embark in money-lending business in the ordinary course of management, and for that purpose sell a property, which brings no income to the family. But the Shebait of an idol may not do so, because such an act, unless empowered by the terms of the endowment, cannot be said to be in the ordinary course of management of the debettur property, and must, therefore, amount to a breach of trust. Where the manager of a joint Hindu family, in the ordinary course of management and for the benefit of the family, sells an unprofitable piece of land and invests the proceeds in a lucrative transaction, it is proper to imply a consent of all the persons entitled to that piece of land. It is impossible to imply the consent, either of the idol or of the founder of the endowment, where the She-bait, unless expressly permitted by the terms of the endowment, disposes of trust property for the purpose of embarking with the proceeds thereof in a lucrative and attractive business. I do not; think that the decision of Lord Atkinson in any way helps the argument advanced on behalf of the appellants.
12. The last case relied upon by Mr. Sinha--the case of Manna Lal v. Karu Singh 55 Ind. Cas. 766 : 1 P.L.T. 6 (P.C.).--is a direst authority against him. In that case, as in the case before us, one of the mortgages was expressed to be for payment of premium of a lease due in respect of a certain Mouza. That mortgage was upheld by the Judicial Committee as against co-parcenerg, who were not parties to the mortgage transaction. If the decision of the Judicial Committee in the last mentioned case is right, then the argument advanced before us by Mr. Sinha must fail.
13. That being so, the only other question that remains for our consideration is--was this a transaction in the ordinary course of management and for the benefit of the joint family? It cannot be disputed that the transaction, in its result, has undoubtedly benefited the joint family. But Mr. Sinha has argued with considerable force that we must carefully scrutinize the purpose for which the transaction is entered into, and that if we are unable to say that benefit must inevitably accrue to the joint family, we ought not to uphold the transaction as against persons who are not parties thereto though, in the result, benefit has in fact accrued to them. The argument is in part unassailable, but I am unable to accept the whole of it. I quite agree that the manager of a joint family has no authority whatever to affect or dispose of any portion of joint family property in order to enable him to embark on speculative transactions, but I cannot say that the mortgagee must in each case satisfy the Court that the transaction was bound to benefit the joint family. There is a certain element of risk in every business transaction and if we are to hold that when the business has succeeded and the entire family has benefited by it, we ought not to uphold the mortgage transaction entered into by the manager to enable him to embark on such a business unless the mortgagee satisfies us that the business was bound to succeed and that benefit was bound to accrue to the family, we would unnecessarily handicap the managers of joint Hindu families and place a limitation on their powers which would have the affect of stopping all business transactions in every Mitakshara family. In this connection great reliance has been placed on the judgment of Mr. Justice Mookerjee in the case of Chakouri Mahton v. Ganga Pershad 12 Ind. Cas. 609 : 15 C.L.J. 228 : 10 C.W.N. 519 : 39 C. 862, in which that great and distinguished Judge summarised the provisions of all the texts relating to the non-obligation of the son to pay the debt of the father. Commercial debt is said to be one of the debts which a son is not under any obligation to pay. The short answer to the argument is that Mr. Justice Mookerji was merely summarising the texts on the subject, not giving his decision on the texts. On referring to the texts, it will appear that Gautama is the only writer who says that the son is under no obligation to pay the commercial debts of the father. Gautama made no distinction between 'gambling debts' and 'commercial debts;' but neither in the Institutes of Manu nor in the Institutes of Yajnavalkya nor in the commentary on Yajnavalkya by the author of Mitakshara is 'commercial debt' mentioned as one of the debts which a son is under no obligation to pay, although in each of them gambling debt' is mentioned as a debt which a son is exempt from paying. It was argued that it is at times difficult to distinguish between gambling debts and commercial debts. That may be so, but the mere difficulty of distinguishing between the two is no ground for holding that a son is not bound to pay the commercial debts of the father. The question is, in each case, a question of fact, and will be decided by application of principles which are well recognized in Courts of law. The question of the liability of the son to pay the debt of the father does not, however, directly arise in this case, though it may be conceded that a transaction which a son is not bound to recognize after the death of the father, is not a transaction which can be said to have been entered into in the ordinary course of management. In this case, we are concerned with the power of the manager of a joint family of taking a beneficial lease for the benefit of the joint family. The test, in my view, is was it a transaction into which a prudent owner would enter in the ordinary course of business; if it was, then the transaction ought to be upheld. In this case I have no doubt at all that the transaction was one into which a prudent owner would enter in the ordinary course of management of joint family properties. The lease was a lease of 3,000 bighas of khudkasht land and there was every probability that the transaction would be a profitable one for the joint family, It has undoubtedly been a profitable one and in my view the mortgage bonds ought to be enforced as against the joint families. In my view, the decision of the learned Subordinate Judge is right and ought to be affirmed, I would therefore dismiss these appeals with costs.
Adami, J.
14. I agree.