Indian Kanoon - Search engine for Indian Law

22. Now let me turn to the decisions of their Lordships of the Privy Council which have been relied upon as supporting the view that a mortgage executed by a Hindu father in a Mitakshara family not shown to have been made to satisfy an antecedent debt or a family necessity, but not shown to have been for a debt tainted With immorality, is binding upon his sons. The first to which I shall refer is the case of Suraj Bunsi Koer v. Sheo Persad Singh 5 C, 148; 4 C.L.R. 226; L.R. 6 I.A. 88.. In that case an ex parte decree for money had been obtained against a Hindu governed by the Mitakshara law upon a bond, whereby he had mortgaged his ancestral immoveable estate and the estate was attached and sold. Prior to the sale in execution the judgment-debtor died and his infant sons and co-heirs, on filing a petition of objections, were referred to a regular suit. They instituted a suit after the sale against the execution creditor and the purchasers for a declaration of their right to the property sold and to have the mortgage bond, the ex parte decree and the execution sale set aside. It appeared that the father's debt had been incurred without justifying necessity and it was held that as between the infants and the execution creditor neither they nor the ancestral immoveable property in their hands was liable for the father's debt, but that as regards the judgment-debtor's undivided share in the estate sold, whether or not his own alienation was valid by the law as understood in Bengal, it was capable of being seized in execution and that the effect of the execution sale was to transfer the said share to the purchasers, the execution proceedings having at the time of the judgment-debtor's death gone so far as to constitute in favour of the execution creditor a valid charge thereon which could not be defeated by the judgment-debtor's death before the actual sale. It will be observed that as between the infants and the execution creditor neither they nor the ancestral property in their hands were held to be liable for this debt. In delivering the judgment of their Lordships, Sir James W. Colvile remarked that "the rights of the co-parceners in ah undivided Hindu family, governed by the law of the Mitakshara which consists of a father and his sons, do not differ from those of the coparceners in a like family, which consists of undivided brethren, except so far as they are affected by the peculiar obligations of paying their father's debts which the Hindu law imposes upon sons (a question to be hereafter considered) and the fact that the father is in all cases naturally and in the case of infant sons necessarily the manager of the joint family estate. The right of co-parceners to impeach an alienation made by one member of the family without their authority, express or implied, has of late years been frequently before the Courts of India, and it cannot be said that there has been complete uniformity of decision respecting it. All are agreed that the alienation of any portion of the joint estate, without such express or implied authority, may be impeached by the coparceners, and that such an authority will be implied at least in the case of minors if it can be shown that the alienation was made by the managing member of the family for legitimate family purposes. It is not so clearly settled whether in order to bind adult co-parceners, their express consent is not required." His Lordship then referring to the case of Girdharee Lall v. Kantoo Lall L.R. 1 I.A., 321; 22 W.R. 56; 14 B.L.R. 187. observed: "This case is undoubtedly an authority for these propositions: first, that where joint ancestral property has passed out of a joint family either under a conveyance executed by a father in consideration of an antecedent debt, or in order to raise money to pay off an antecedent debt, or under a sale in execution of a decree for the father's debts, his sons, by reason of their duty to pay their father's debt, cannot recover that property unless they show that the debts were contracted for immoral purposes, and that the purchasers had notice that they wore so contracted; and secondly, that the purchasers at an execution sale being strangers to the suit if they have no notice that the debts were so contracted, are not bound to make inquiry beyond what appeal's on the face of the proceedings."

38. According to the law as administered by the Court of this Province, a member of a joint family cannot validly mortgage his undivided share in ancestral estate held in coparcenary on his own private account without the consent of the co-sharers in that estate, Balgobind Das v. Narain Lal 15 A. 339, (P C.); L.R. 20 I.A. 116. It follows from this that if the mortgage in suit is not binding in toto, it is not binding as to the mortgagor's share in the mortgaged property.

39. I have examined the later decisions of the Judicial Committee with a view to ascertain if there be any pronouncement which, supports the broad interpretations of the ruling in Suraj Bunsi Koer's case 5 C. 148; 4 C.L.R. 226; L.R. 6 I.A. 88., for which the plaintiffs respondents contend, but without success. On the contrary, their Lordships express their indisposition to extend the doctrine of the alienability by a co-parcener even of his undivided share without the consent of his cosharers beyond the decided cases. In Lakshman Dada Naik v. Ram Chandra Dada Naik 5 B. 48, (P.C.);.L.R. 7 I.A. 181; 7 0. L.R., 320 Sir James W. Colvile, who delivered the judgment in Suraj Bunsi Koer's case 5 C. 148; 4 C.L.R. 226; L.R. 6 I.A. 88., referring to the principle that the co-parcener's power of alienation is founded on his right to a partition, pointed out that Suraj Bunsi Koer's case 5 C. 148; 4 C.L.R. 226; L.R. 6 I.A. 88. was one of an execution against a mortgaged share and was decided on the ground that the proceedings had then gone so far in the life-time of the judgment-debtor (in report 'mortgagor') as to give, notwithstanding his death, a good title against his co-sharers to the execution purchasers." He then remarks: "Their Lordships are not disposed to extend the doctrine of the alienability by a co-parcener of his undivided share without the consent of his co-sharers beyond the decided cases." In the case of Kameswar Pershad v. Sun Bahadur Singh 6 M.I.A. 393; 18 W.R. 81., it was held by the Judicial Committee that in transactions such as the alienation by a Hindu widow of her estate of inheritance derived from her husband, a creditor seeking to enforce a charge on such an estate is bound at least to show the nature of the transaction and that in advancing his money he gave credit on reasonable grounds to an assertion that the money was wanted for one of the reognised necessities. Sir James W. Colvile again commented upon the decision in Hunooman Pershad Pandey's case 6 M.I.A. 393; 18 W.R. 81. and the law as therein laid down, and then observed: "It appears to their Lordships that such being the law, any creditor, who comes into Court to enforce a right similar to that which is claimed in the present suit, is bound at least to show the nature of the transaction and that in advancing his money he gave credit on reasonable grounds to an assertion that the money was wanted for one of the recognized necessities". This was, it will be observed, the case of a mortgage. In the case of Madho Parshad v. Mehrban Singh 18 C. 157,(P.C.); L.R. 17 I.A. 194, in which it was held that where a Hindu without the consent of his coparcener had sold his undivided share in the family estate for his own benefit and received the purchase money to his own use; his surviving co-parcener was entitled on his death, under the Mitakshara law, by survivorship to recover the share so sold from the purchaser, and that the latter had no equity or charge thereon against such survivor in respect of his purchase money. Lord Watson, who delivered the judgment of their Lordships, commented upon the decision in Suraj Bunsi Koer's case 5 C. 148; 4 C.L.R. 226; L.R. 6 I.A. 88. and pointed out that the right of the purchaser in that case was affirmed on the ground that before the death of the judgment-debtor execution proceedings had gone so far as to constitute in favour of the judgment-creditor a valid charge upon the joint estate to the extent of the undivided interest of the deceased, which could not be defeated by that event, but at the same time observed that if no proceedings had been taken to enforce the debt in the life-time of the judgment-debtor, his interest in the property would have survived on his death to his sons so that it could not be afterwards reached by the creditor in their hands." Then again in the case of Balgobind Das v. Narain Lal 15 A. 339, (P C.); L.R. 20 I.A. 116., it was held to be the settled law of the Mitakshara, as administered in Bengal and the North-Western Provinces, that a Hindu cannot, without the consent of his co-parceners, sell or mortgage his undivided share in ancestral estate for his own benefit. Sir Richard Couch in delivering judgment approved of the passage in the judgment in the case of Lakshman Dada Naik v. Ram Chandra Dada Naik 5 B. 48, (P.C.);.L.R. 7 I.A. 181; 7 C.L.R., 320, which I have quoted, and also the judgment in Madho Prasad v. Mehrban Singh 18 C. 157, (P.C.); L.R. 17 I.A. 194. In regard to the judgment in the last mentioned case, he observes: "In the judgment delivered by Lord Watson it is said that the counsel for the appellant conceded in argument that the rules of the Mitakshara law, which prevail in the Courts of Bengal, are applicable in Oudh to the alienation of interests in a joint family estate, and that he likewise conceded that the sales being without the consent of the co-parcener, and not justified by legal necessity, were according to that law invalid: but he maintained that the transactions being real and the prices actually paid, the respondent could only recover the shares sold subject to an equitable charge in the appellant's favour for the purchase money. It was held that it might have been quite consistent with equitable principles to refuse to the seller restitution of the interest which he sold, except on condition of its being made at once available for the repayment of the price which he received but that the respondent who took by survivorship was not affected by any equity of that kind and that an equity which might have been enforced against the seller's interest whilst it existed could not be made to affect that interest when it has passed to a surviving co-parcener except by repealing the rule of the Mitakshara law." In view of these rulings it seems to me impossible to hold that their Lordships have extended the principle which underlies the decision in Suraj Bunsi Koer's case 5 C. 148; 4 C.L.R. 226; L.R. 6 I.A. 88. On the contrary, they seem to me to have guarded themselves against the suggestion that the clear and explicit rule of the Mitakshara, which precludes the alienability of immoveable property by a co-parcener without the consent of his co-parceners, had been repealed or might be treated as a dead letter.