GOPALACHANDRA Vs. BHAGWATINAND BRAHMANCHARI

JUDGEMENT

(1.) THE suit under revision has been brought by Gopalchandra and his brothers against their father Ramchandra and another brother Shankarlal for a declaration that the mortgage of their ancestral house by their father and brother in favour of defendant No. 1 Bhagwatinand is not binding on them. The plaintiff-applicants alleged that the mortgage was withocut consideration, it was not for the benefit of the joint family; that there was no antecedent debt; that the transaction was immoral and that the mortgage was not binding on them as they were not parties to the same. The trial Court framed a preliminary issue regarding payment of court-fee, decided it against the plaintiffs and passed an order calling upon the plaintiffs to pay ad valorem Court-fee on the valuation of the decree which they wanted the Court to set aside. The plaintiffs have preferred this revision against the said order.

(2.) THE trial Court has relied on a case reported in AIR 1943 Nag 70, Vinayakrao v. Mt. Mankuwarbai. In that case the sons brought a suit for declaration that a decree passed against his father was not binding on them as they were not parties to the suit. Mr. Justice Bose (as he then was) obseived:

(3.) THESE observations are based on the principle that in most cases there is a presumption that the father as a manager represents the family and the sons have been all deemed to be constructive parties. But this case as will appear from the facts refers to a money decree against the father and there is no allegation as we find in the present case of any alienation like mortgage. In fact in mr 1949 Nag 37, Pandurang v. Bhojalu, Mr. justice Sen had occasion "to discuss the ruling reported in AIR 1943 Nag 70 and in his lucid judgment lie has clearly shown the distinction between the two types of cases. In the latter case which Mr. Justice Sen was dealing and which was on all fours with the instant case, a suit was brought by the sons against their father and his transferee challenging the mortgage and the decree passed on the basis of it. In that case his Lordship Mr. Justice Sen held that "such a suit is a suit for a pure declaration in which no consequential relief is involved ana ad valorem court-fee is not payable under Section 7 (iv) (c) Court-fees Act but a fixed court-fee is payable under Article 17 (iii) Schedule 2, of the act. " He distinguished the case reported. in ILR 1943 Nag 440 : (AIR 1943 Nag 70) on the ground that it was a case of simple money decree and not of a mortgage decree and that there is a difference between simple money decree and a mortgage decree. In execution of a simple money decree, the entire joint family property inclusive of the interest of the sons is liable to be sold in execution of that decree. The Sale can only be avoided by the sons if they are in a position to prove that the debt incurred by their father was tainted with illegality or immorality. In the case of a mortgage decree it is not necessary for a son to allege or prove that the debt was incurred for an illegal or an immoral purpose; he can succeed if it is proved that the mortgage was not for legal necessity or for the payment of antecedent debt.