DEV KISHAN Vs. RAM KISHAN

JUDGEMENT

(1.) This second appeal has been filed by one Kishan Lal, original defendant No. 1 (during the pendency of this second appeal, Kishan Lal has died and his LRs have been taken on record, but for convenience, the appellants would hereinafter be referred to as appellant-defendant No. 1) against the judgment and decree dated 15-9-1980 passed by the learned Civil Judge, Bikaner in appeal No. 30/77 by which the learned Civil Judge dismissed the appeal of the appellant-defendant No. 1 and confirmed the judgment and decree dated 30-9-1977 passed by the learned Munsiff, Bikaner in Civil Suit No. 17/69 (116/70 after transfer) by which the learned Munsiff decreed the suit of the plaintiffs Ram Kishan and Kailash, respondents Nos. 1 and 2 to this second appeal, but for convenience, they would hereinafter be termed as plaintiffs. The other original defendant Nos. 2 to 5, namely, Madan Lal, Laxmi Chand, Megh Raj and Badri Das have been made respondents in this second appeal also, but for convenience, Madan Lal, who was Karta of the family, would hereinafter be referred to as defendant No. 2.

(2.) It arises in the following circumstances: The plaintiffs Ram Kishan and Kailash filed a suit in the Court of Civil Judge, Bikaner on 18-3-1969 against the appellant-defendant No. 1 and also against the defendant Nos. 2 to 5 with the prayer that the sale deed dated 12-5-1967 (Ex. A/3) and rent deed Ex. A/4 be declared null and void against the plaintiffs as well as against the defendant Nos. 2 to 5. It was alleged in the plaint that the plaintiffs and defendant Nos.2 to 5 were members of joint Hindu Family, but the defendant No. 2 Madanlal, who was Karta of the family, was under the influence of the appellant-defendant No. 1. It was further alleged in the plaint that two houses mentioned in para No. 2 of the plaint were joint properties of that joint Hindu family and the plaintiffs in the month of Jan., 1969 came to know that the defendant No.2 on 12-5-1967 sold the said two houses to the appellant-defendant No. 1 through registered sale deed Ex. A/3 for a consideration of Rs. 2000.00 though the value of these two houses was about Rs. 16,000.00 and not only this, the defendant No. 2 also got the signatures of the defendant Nos. 3 to 5 on that sale deed by undue influence and the amount taken by the defendant No. 2 after sale was not distributed by him to any other members of the family. Thereafter, the plaintiffs approached the appellant-defendant No.1 and asked him to show the documents and upon this, the appellant-defendant No. 1 first tried to avoid, but then he showed to the plaintiffs the sale deed dated12-5-1967 (Ex. A/3) and mortgage deed dated 19-5-1964 (Ex. A/2) and in that mortgage deed Ex. A/2 dated 19-5-1964, there was mention of another mortgage deed dated 6-12-1962 (Ex. A/1). The further case of the plaintiffs was that the defendant No. 2 under the influence of appellant-defendant No.1 first mortgaged the properties in question in favour of the appellant-defendant No.1 for a consideration of Rs. 500.00 on 6-12-1962 and that mortgage deed is Ex.A/1 and furthermore, the same properties were further mortgaged by the defendant No. 2 in favour of the appellant-defendant No.1 on 19-5-1964 for a consideration of Rs.900.00 and that mortgage deed is Ex. A/2 and since the sale deed dated 12-5-1967 (Ex. A/3) was got executed by the appellant-defendant No. 1 through defendant No. 2 in his favour after making influence over defendant No. 2, therefore, it should be declared null and void against the interest of the plaintiff and defendant Nos. 2 to 5 and similarly, the rent deed Ex. A/4 by which the plaintiffs and defendant Nos. 2 to 5 were termed as tenants of appellant-defendant No.1 be also declared as null and void on various grounds mentioned in para 8 of the plaint and one of them was that there was no legal necessity for mortgaging as well as for selling the properties in question in favour of the appellant- defendant No. 1 by the defendant No. 2 and if, at the most, properties were sold for the illegal and immoral purposes, for that the plaintiffs were not bound. Hence, it was prayed that the suit be decreed. The suit of the plaintiffs was contested by the appellant-defendant No. 1 by filing written statement on 4-8-1969 and in that written statement, it was alleged by the appellant-defendant No. 1 that the defendant No. 2 was Karta of the family and he took loan from him for the legal necessity of the family or that loan should be termed as antecedent debt and for that, the plaintiffs and defendant Nos. 2 to 5 were bound to pay. The allegations of influence and immoral or illegal transactions were denied by the appellant-defendant No. 1 and it was further averred that from the mortgage deed dated 6-12-1962 (Ex. A/1), it was clear that the properties in question were mortgaged by the defendant No. 2 in favour of the appellant-defendant No. 1 for the purpose of marrying his daughter Vimla and later on, the same properties were further mortgaged by the defendant No. 2 in favour of the appellant-defendant No. 1 through mortgaged deed dated 19-5-1964 (Ex. A/2) for the purpose of marrying Vimla and Pushpa. Hence, all the transactions were for legal necessity and thus, the suit of the plaintiffs be dismissed. On the pleadings of the parties, the following issues were framed by the learned Munsiff on 20-10-1971 :- (Matter in vernacular, omitted.-Ed.) Thereafter, both the parties led evidence in support of their respective cases. After hearing both the parties and taking into consideration the entire evidence and materials available on record, the learned Munsiff, Bikaner through his judgment and decree dated 30-9-1977 decreed the suit of the plaintiffs against the appellant-defendant No. 1 and declared the sale deed dated 12-5-1967 (Ex. A/3) in respect of two houses mentioned in the plaint and rent deed Ex.A/4 to be null and void against the plaintiffs and defendant Nos. 2 to 5. In decreeing the suit of the plaintiffs, the learned Munsiff came to the following conclusions on issue No. 1 :- (1) That from perusing the mortgage deed dated 6-12-1962 (Ex. A/1), it clearly appears that Rs. 500.00 were taken by the defendant No. 2 from the appellant-defendant No. 1 for the purposes of marrying his daughter Vimla and through another mortgage deed dated 19-5-1964 (Ex. A/2), Rs. 900.00 were taken by the defendant No. 2 from the appellant-defendant No. 1 for the purposes of marrying Vimla and Pushpa and through registered sale deed dated 12-5-1967 (Ex. A3), the amount was taken by the defendant No. 2 from the appellant-defendant No. 1 for the purposes of marrying Ram Kishan, plaintiff No. 1. (2) That Vimla, Pushpa and Ram Kishan were all minors when the properties were mortgaged by the defendant No. 2 in favour of the appellant-defendant No. 1 and when sale deed Ex. A/3 was executed by the defendant No. 2 in favour of the appellant-defendant No. 1. (3) That the loan taken by the defendant No. 2 from the appellant-defendant No. 1 cannot be termed as loan for payment of antecedent debt as the loan was taken by the defendant No. 2 for the purposes of marrying his minor daughters and, thus, the learned Munsiff came to the conclusion that the present transactions cannot be regarded as transactions for payment of antecedent debt. (4) That the learned Munsiff also did not find the case of legal necessity as the expenses in the marriage of Vimla, Pushpa and Ram Kishan (plaintiff No. 1) were not incurred by the defendant No. 2 and furthermore, there was no necessity for taking loan for their marriages. (5) That apart from that, the age of Vimla and Pushpa at the time of their marriages was 12 and 8 years respectively and, therefore, taking loan for their marriages could have not been visualised looking to their age and thus, the submission that the loan was taken for their marriages was wrong. (6) That even for the sake of argument, the loans were taken by the defendant No. 2 from the appellant-defendant No. 1 for the purposes of marrying his minors after executing mortgage deeds and sale deed, such transactions became void being opposed to public policy in view of prohibition of child marriage under the Child Marriage Restraint Act, 1929 (hereinafter referred to as "the Act of 1929") and, therefore, the amount, if spent on the marriages of minor children, cannot be termed as legal necessity. (7) That sale deed Ex. A/3 dated 12-5-1967 was executed on the same day when there was marriage of Ram Kishan, plaintiff No. 1 and, therefore, when the marriage of plaintiff No. 1 Ram Kishan was going to be performed on the date of execution of sale deed Ex. A/3, to say that the amount taken by the defendant No. 2 from the appellant-defendant No. 1 through sale deed Ex. A/3 dated 12-5-1967 was to be utilised for the purpose of marriage of Ram Kishan, plaintiff No. 1 was wrong one and thus, the learned Munsiff came to the conclusion that the amount even of sale deed Ex. A/3 dated 12-5-1967 was not utilised by the defendant No. 2 for the marriage of Ram Kishan, plaintiff No. 1. (8) That it is difficult to believe that the properties worth Rs. 7000-8000.00 would be mortgaged or sold for a consideration of Rs.400-500.00 on the pretext of marrying minor daughters, as according to the learned Munsiff, other brothers and mother of these minor daughters were earning members and, therefore, in no case, the properties were mortgaged for taking loan for the purposes of marrying minor daughters. In these circumstances, since the properties were not mortgaged and sold by the defendant No. 2 in favour of the appellant defendant No. 1 for the purposes of legal necessity and there was no question of payment of antecedent debt, therefore, the learned Munsiff came to the conclusion that the plaintiffs and defendant Nos. 2 to 5 would not be bound by the terms of the sale deed dated 12-5-1967 (Ex. A/3) and that should be declared null and void against them. Thus, the learned Munsiff decided issue No. 1 in favour of the plaintiffs and against the appellant-defendant No. 1 and decreed the suit of the plaintiffs in the manner as indicated above. Aggrieved from the said judgment and decree dated 30-9-1977 passed by the learned Munsiff, Bikaner, the appellant-defendant No. 1 preferred first appeal before the learned District Judge, Bikaner, which was transferred to the learned Civil Judge, Bikaner and the learned Civil Judge, Bikaner through his judgment and decree dated 15-9-1980 dismissed the appeal of the appellant-defendant No. 1 and upheld the judgment and decree dated 30-9-1977 passed by the learned Munsiff, Bikaner holding inter alia:- (1) That the debt was taken by the defendant No. 2 from the appellant-defendant No. 1 for the purpose of marriages of his minor daughters through mortgage deeds dated 6-12-1964 (Ex. A/1) 19-5-1964 (Ex. A/2) and that debt was opposed to public policy because of prohibition of child marriage under Act of 1929 and in this respect, the learned Civil Judge placed reliance on the decision of the Orissa High Court in Maheshwar Das v. Sakhi Dei, AIR 1978 Orissa 84 and the law laid down in Parasram v. Smt. Naraini Devi, AIR 1972 All 357 and Rulia v. Jagdish, AIR 1973 Punj and Har 335, was not found favourable by the learned Civil Judge. Thus, he confirmed the findings of the learned Munsiff on that point. (2) That the expenses of the marriages of Vimla, Pushpa and Ram Kishan were not borne by the defendant No. 2, father of these minor children, but on the contrary the expenses were borne by their mother and brothers, as they were earning members and thus, the amount taken by the defendant No. 2 from the appellant-defendant No. 1 was not utilized for the welfare of the family. (3) That no liability of the plaintiffs was found in respect of the antecedent debt also and in this respect, the learned Civil Judge also confirmed the findings of the learned Munsiff. Aggrieved from the said judgment and decree dated 15-9-1980 passed by the learned Civil Judge, Bikaner, this second appeal has been filed by the appellant-defendant No. 1.

(3.) This Court while admitting this second appeal framed the following substantial questions of law on 22-1-1981:-