PARASRAM Vs. NARAINI DEVI

JUDGEMENT

(1.) SRI H. S. Nigam, learned counsel for the plaintiff appellants, has sought to raise an interesting point in support of this appeal. Learned counsel submitted that the debt having been in curred by the major members of the joint Hindu family for the purpose of the marri age of a minor member would not be binding on the joint Hindu family as the marriage of a minor being prohibited by virtue of the provisions of Child Marriage Restraint Act, 1929, the debt would be for illegal purposes and not for legal necessity. Reliance has been placed on Tattya Mohyaji Dhomse v. Rabha Dadaji Dhomse, AIR 1953 Bom 273, Rambhau Ganjaram v. Rajaram Laxman, AIR 1956 Bom 250 and Hansraj Bhuteria v. Askaran Bhuteria, AIR 1941 Gal 244. Learned counsel for either party at the bar were not able to cite any case decided by the Allahabad High Court on the subject

(2.) THE undisputed facts of the case are that Daulatram and Ghanshyam, second and third defendants in the suit giving rise to this appeal, executed a sim ple mortgage on 19-4-1952 in favour of Smt. Naraini Devi, the first defendant in the suit, for securing a loan advanced by the mortgagee for the purpose of marri age of Horilal, a minor brother of the two mortgagors. A Suit No. 213 of 1958 then was brought by the mortgagee Smt. Naraini Devi for sale of the mortgage property. On 15-5-1959 a decree for sale of the mortgaged property was passed. In execution of the decree the mortgaged property was sold and was purchased by Babulal, the sixth defendant in the suit. The fourth and fifth defendants in the suit were Smt. Bhagwan Dei, widow of the said Horilal, and Km. Rajjo, the minor daughter of the said Horilal, respectively. The four plaintiffs were the minor sons ot Daulat Ram and Ghanshyam, the mort gagors. The relief sought in the suit was sought on the allegations that Daulatram and Ghanshyam were gamblers, they had taken the loan not for any legal necessity but for immoral purposes and that they had taken the loan in then" personal capa cities and not as members or karta of the joint Hindu family, hence the mortgage debt was not binding on the family pro perties therefore the transaction of mort gage, the decree passed in its enforcement and the auction held in execution were void and not binding. A relief for perma nent injunction was claimed against the sixth defendant Babulal, auction purchaser, from taking possession of the properties sold in execution of the mortgage decree. The courts below have recorded a con current finding that the loan was taken by Daulatram and Ghanshiam for perform ing the marriage of their brother Horilal. This finding is binding in second appeal as it has not been shown to be vitiated by any error of law or procedure. Indeed Sri Nigam for the plaintiff appellants did not challenge the correctness of the find ing. The trial court recorded a finding that the loan was taken for legal necessity and on that finding dismissed the plain tiffs' suit. The lower appellate Court, however, took the view that the plaintiffs were not competent in law to question the transaction of loan incurred by their fathers as they were under a pious duty to discharge the debts, there being no evidence that the debts were taken for illegal or immoral purposes. The learned Judge of the lower appellate Court did not, therefore, think it necessary to go into the question whether there was any legal necessity.

(3.) HOWEVER , the question remains whether the minority of Horilal at the time of his marriage in 1952 would make the transaction of loan incurred by his elder brother as illegal and not binding on the family. There are some difficulties in the way of Sri Nigam in satisfying me that the plaintiffs were entitled to a decree on the proof of the fact that Horilal was only fourteen years of age at the time of his marriage as has been elicited from the evidence of Babulal, the sixth defendant. Firstly, the plaintiffs themselves pleaded in the plaint that Horilal was a major when his marriage was performed in the year 1952. I think the law is settled that a plaintiff cannot be allowed to succeed against his own pleadings. Secondly, no plea was raised in the plaint as to the non-binding nature of the mortgage debt grounded on the fact that the marriage of Horilal being violative of the provisions of' the Child Marriage Restraint Act, 1929, any debt incurred for its performance would be illegal, devoid of legal necessity and will not bind the joint family property. Had such a plea been raised, the parties would have been at issue on the question of age at which the marriage of Horilal was performed. A child has been defined under the said Act as a person below eighteen years if a male. Babulal in his evidence stated that the marriage of Hori lal was performed fourteen or fifteen years earlier. He was being examined in the year 1966. That would show that the marriage of Horilal was performed in the year 1952. Then Babulal further stated that Horilal must have been about four teen years in age at the time of marriage. Sri Nigam for the plaintiff appellants has built up an argument for the first time in second appeal on this statement of Babu lal. I do not think I would be justified in allowing a question to be raised for the first time in second appeal which material ly depends upon finding of facts on which the parties in the court below were never at issue. The statement of Babulal, who admittedly is not a member of the joint family, elicited from him in cross-examina tion without the parties being at issue on that question, would hardly be conclusive of the age of Horilal at the time of his marriage. I am, therefore, not inclined to accept the contention of Sri Nigam for the appellants as there is no satisfactory evidence on record on the age of Horilal at the time of his marriage.