TRIBENI PRASAD AND ORS Vs. BISHAMBHAR NATH

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for sale on the basis of a mortgage-deed dated 18th June 1918, executed by Jwala Prasad for himself and as guardian of his minor sons and also by his adult son, Beni Prasad. The mortgage, deed was to raise money in order to save an ancestral property from sale which had been put up at auction on account of a mortgage decree on the basis of a previous mortgage-deed executed by Jwala Prasad. On the face of it the mortgage-deed of 1918 was executed in order to pay off an antecedent debt of Jwala Prasad. The property mortgaged is admittedly the joint family property of Jwala Prasad. It is therefore quite clear that in the absence of any proof that the previous debt of Jwala Prasad had been tainted with immorality the transaction of 1918 would be binding on the sons and grandsons of Jwala Prasad even if they had not joined in the transaotion.

(2.) A suit was brought on the basis of the mortgage-deed against Jwala Prasad and his sons and grandsons among whom was Tribeni Prasad, one of the sons of Jwala Prasad who is the father of Lalla. Lalla also was impleaded as one of the defendants and the plaintiff proposed that Lalla s unole, Gur Prasad, who like Lal-la s father, Tribeni, had attained majority, should be appointed as guardian ad litem. The Court issued notice to Gur Prasad as to whether he would consent to act as guardian. Apparently the summons for the suit was also issued at the same time, which was somewhat irregular. The report of the process-server was that Gur Prasad and the other defendants were inside the house and he had accordingly affixed the summons on the door of the house. The Subordinate Judge, without examining the report carefully, acoepted the servioa as sufficient not only as against the defendants to the suit but also as against the proposed guardian. The suit was beard but no one appeared to contest it as presumably there was no defence to the suit. The claim was decreed ex parte against all the defendants. The form of the decree is however open to question. After the preliminary decree notice was again issued to the defendants of the preparation of the final decree. On this occasion Gur Prasad appeared and stated that he had had no knowledge of the proceedings and he would not act as the guardian of Lalla. He also made an attempt to have the decree against him set aside on the ground that he had no knowledge of the suit, but that attempt failed. A final decree was passed. First Appeal No. 433 of 1930 is an appeal from the final decree in the mortgage suit filed by the defendants. This was followed later on by a personal decree under Order 34, Rule 6. F.A. 433 of 1930 is an appeal from this last mentioned decree arising out of a mortgage suit filed by the defendants including Lalla, who has appealed through his nominated guardian Gur Prasad.

(3.) First Appeal No. 28 of 1929 arises out of a suit brought by Lalla for a declaration that inasmuch as he had not been properly represented through a guardian duly appointed in the mortgage suit, the mortgage decree is not binding upon him. We propose to deal with the decree under Order 34, Rule 6 as against the defendants other than Lalla in the first instance. The form of the decree is that a decree under Order 34, Rule 6 be prepared for the unrealised portion of the mortgage debt with costs against all these defendants but that Tribeni Prasad, Gur Prasad and Har Prasad would not be liable to be arrested under this decree. The decree does not in specific terms say that the personal and separate properties of Tribeni Prasad, Gur Prasad and Har Prasad would be exempt. No doubt the mortgage debt was of the year 1918 and was binding OQ the whole family and the amount could be realised by the sale of the entire joint family property. The Imere fact that later on in 1920 there was a separation would not exempt the joint property from the liability to pay this jdabt of the father when no provision was made at the time of the partition to pay off this debt: Bankey Lai v. Durga Pra. sad . But it is equally clear that although the joint property can be followed the creditor is not entitled to proceed against the personal and separate properties of the three sons of Jwala Prasad which have not come to them as a result of the partition. The sons were minors at the time, and although they were liable to pay the debt of their father out of the family estate, their persons and separate properties were exempt. It has been urged on behalf of the defendants that there was in fact no personal covenant to pay the mortgage debt. This contention cannot ba accepted because the mortgage-deed clearly states: