BAIJNATH THAKUR Vs. SARWAN CHAUDHURY

JUDGEMENT

(1.) This is a second appeal by the defendants from a decision of the District Judge of Muzaffarpur confirming a decision of the Munsif. The facts were that in January 1923, defendant 1, who was the karta of a joint family consisting of himself and his son, defendant 2, took a mukarrari patta of 3 bighas of paddy land for a consideration of Rs. 812-8-0. In December of the same year, he borrowed on mortgage Rs. 900 to pay for the mukarrari patta and for the joint family expenses to the extent of Rs. 87-8-0. The property given in security for this mortgage was the property of the joint family and the 3 bighas of land covered by the mukarrari patta.

(2.) In 1927, Rs. 850 of the mortgage debt was paid. This appeal arises out of a suit to enforce the balance of the mortgage debt. The first Court accepted the plaintiffs evidence that the produce from the 3 bighas covered by the patta is about 20 maunds per bigha besides other catch crops and held that the transaction was one by which the family had benefited. This finding was endorsed by the Court below which was also satisfied that the family benefited by the mukarrari patta. In second appeal it is contended on behalf of the defendants that the karta of a joint family is not entitled to hypothecate ancestral lands for the purpose of acquiring other lands.

(3.) A number of cases of this and other Courts have been cited to us but it is clear that in this Court the decisions are almost unanimous. In Sheotahal Singh V/s. Arjun Das AIR (1920) Pat 70 a Division Bench held that the manager of a joint Hindu family always has the power to alienate joint family property in the ordinary course of management and for the benefit of the joint family, and that the test in each case is whether the transaction was such as a prudent owner would enter into in order to benefit the estate. In that case a mortgage bond executed to pay the premium in respect of a lease taken for the benefit of a joint family was held to be binding upon all the members of the family. In Lalji Singh V/s. Muchkund Singh AIR (1934) Pat 699 a Division Bench held that augmenting the means of livelihood of the family, unless speculative or risky, must be taken to be beneficial to the family. In the recent case in Sital Prasad V/s. Ajablal Mander AIR (1939) Pat 370, it was held that where all the adult members of a joint family had mortgaged the ancestral property and applied the money raised by the mortgage towards part payment of the purchase price of a property purchased for the family, the transaction was one for the benefit of the family, and the mortgage was for legal necessity and therefore that it could not be challenged by minor members of the family.