TULA RAM Vs. TULSHI RAM

JUDGEMENT

(1.) THIS appeal arises out of a suit for sale upon a mortgage executed on the 5th of July 1904 by Hulas Rai, Jawahir Lal and Dori Lal who were members of the same family. The appellants before us are t ii descendants of Hulas Rai and it is contended on their behalf that the mortgage was executed without any family necessity and is, therefore, not binding on the joint family property which was comprised in the mortgage, The amount secured by the mortgage was Rs. 3,000 and this amount was alleged to have been due to the" mortgagee, Sohanlal, who is now dead and is represented by his adopted son, the plaintiff, under an earlier mortgage of the 19th of June 1891 executed by Hulas Rai and Jawahir Lal in favour of Sohanlal for Rs. 2,000. We may mention that the present appellants have purchased the interests of Jawahir Lal in the mortgaged property and in the sale deed which was executed in their favour one half of the mortgage money due to the plaintiff was left in the bands of the purchasers for payment to the mortgagee Sohanlal. In order to consider whether the mortgage now in suit is binding on the appellants it is necessary to determine whether the earlier mortgage of the 19th of June 1891 was made for family necessity or for the benefit of the family. In the mortgage-deed the necessity for raising the loan is stated to be the purchasing of zemindari shares in the villages of Tajpur and Muriana. It appears that on the 19th of September 1891 a sale-deed of the said villages was obtained in the names of the two sons of Hulas Rai from the Liquidator of the Uncovenanted Service Bank. The consideration for that sale was Rs. 5,250. If that sale was for the benefit of the family, and if the loan was taken on the representation that the money was required for the purpose of obtaining a sale of the aforesaid property, the debt was marred for the benefit of the family and was binding on all the members who belonged to it. It is admitted that the two villages of Tajpur and Muriana which were purchased on the 19th of September 1891 are still in the possession of the family including the present appellants, and that these villages have bean in their possession ever since the date of the purchase. We have evidence before us which shows that this purchase was one which proved beneficial to he family. One of the purchase was Baljit and from his evidence it appears that the revenue assessed on the property purchased at the time of the purchase was Rs. 800 year Baljit further deposed that at the preset time the income from the property is Rs. 1,600 or Rs. 1,700, and that the revenue has been enhanced to Rs. 900. from the fact that at the date of the purchase the revenue assessed on the property was Rs. 800 a year it may reasonably be presumed that the income which the property yielded to its owners was at least Rs. 600 and the fact that at the present moment the products a amount to about Rs. 800 raises a strong presumption that at the date of the sale the purchase was not an unprofitable or improvident transaction but was a purchase for the benefit of the joint family. Had it not been so it is unlikely that the family would have retained possession of this property for nearly 30 years. We may, therefore, take it as established that the purchase which was made in 1891 was a purchase which was beneficial, to the family and not detrimental to its interests. We have now to consider whether the creditor, on whom the burden, of course, lay of showing that the loan was taken for the benefit of the family, took reasonable care to ascertain that the representations made to him were representations upon which he could reasonably and honestly have acted. As we have already stated, it is recited in the mortgage deed that the loan was taken for the purpose of purchasing zemindari shares in the villages of Tajpur and Muriana. There is the evidence witnesses which proves that this was the representation made by Hulas Rai and Jawahir Lal to Sohanlal at the time when the loan was taken from him. The amount of the loan, Rs. 2,000, was paid in cash at the time of registration. It appears that, a matter of fast, the price for the purchase of the two villagers had already been paid by the 4th of June 1391 to the Liquidator of the Uncovenanted Service Bank and, therefore, no purchase-money had actually to be paid at the date of the mortgage in question. If, however, the mortgagors represented that they needed the money for the purposes of the purchase and their statements were believed by the lender upon such January as he could have made from the borrowers and Le honestly believed that the money was required for the purposes of a purchase he would be entitled to realise his money from the mortgaged property which happened to be joint family property. In the well-known case of Hunooman persaud Panday v. Musammat Baboose Munraj Koonweree 6 M.L.J.A. Sin. : Sevestre 253n : 2 Suth. P.C.J. 29 : 1 Sar. P.C.J. 552 : 19 E.R. 147 their lordships observed a follows:

(2.) THEIR Lordships thick that the lender is bound to enquire into the necessities for the loan and to satisfy himself, as well as he can with reference to the parties with whom he, is dealing, that; the manager is acting in the parties instant for the benefit of the estate. But they think that if he does so enquire and eats honestly the: existence of an alleged sufficient and reasonable credited necessary in not a consider percentage to the validity is not a condition percentage instance to the validity of his charge in the present instance the lender ,Shoaling, made enquiry. The sale had not actually taken place and negation for it were in progress if he was satisfied that the sale was about to take place and the borrows represented to him that the money which that they borrow was that the money which they was acutely needed for and so are Husan Rai and Jawahar Lal it must be remembered the data of the mortagee of 1890. The only person who is available and who admitted with Hulas and in this case and not offered his evidence on behalf of the defendants The fact that the adult male members of the two branches of the family who where apparently the mortgage of 1904 and admitted the validity of the mortgage of 1891, in favour of the plaintiffs purchased the share of Jawahir Lal they undertook to pay half the amount of the disputed mortgage to the mortal account of the shared Jawahir Lal under the mortgage also tells strongly in favour of the original mortgage of 891 being a mortgage which was entered into for the benefit of the family. In these circumstances, we must hold that the mortgage of 1891 was binding on the family and that, consequently, the mortgage now sought to be enforced is equally binding. We dismiss the appeal with costs including fees on the higher scale. We extend the time for payment of the mortgage-money for six months from this date.