SM PANKAJINI DEBI Vs. PRAMATHA NATH GHOSH

JUDGEMENT

(1.) This appeal arises out of a suit brought by the plaintiff to enforce a simple mortgage bond dated 7 November 1925, executed by Gopiram Naik, defendant 1. At that date Gopiram was a member of a joint Mitakshara family with his brother Jagannath Naik. The mortgage was in respect of his undivided half share in a certain house. In 1930 Gopiram filed a partition suit against his brother Jagannath. As a result of the partition decree passed in that suit, Gopiram obtained the southern portion of the house and the northern portion was allotted to Jagannath. In 1932 Gopiram executed a mortgage of his half share in the house in favour of defendant 2. The latter sued on her mortgage and obtained a mortgage-decree on 15 November 1935. The decree was executed, and the mortgaged property was sold and purchased by defendant 2. In due course she obtained delivery of possession. The present suit was instituted on 18th September 1936. The suit was contested by defendant 2, alone, one of her defences being that the mortgage of 7 November 1925, being executed by a coparcener in respect of his undivided share in the joint family property was void. This defence found favour with the Munsif who dismissed the suit. On appeal, however, the learned Subordinate Judge took a different view and held that the question whether the mortgage was void could not be raised by defendant 2. Accordingly he decreed the suit and passed the usual mortgage decree. This second appeal has been preferred by defendant 2.

(2.) It is contended by Mr. K.K. Banarji for the appellant that the mortgage in suit was wholly void inasmuch as it was executed by a coparcener in respect of his undivided interest in joint family property. In the events that have happened this contention cannot prevail. Indeed in 1925 Gopiram and Jagannath were joint, but in 1980 Gopiram filed a partition suit. The effect of the institution of the partition suit was to cause a disruption of the joint family. From that moment the interests of Gopiram and Jagannath became separate. When subsequently in 1932, Gopiram executed a mortgage in favour of defendant 2, the latter took mortgage of Gopiram's separate interest in the house. Gopiram and Jagannath were no longer coparceners, and Jagannath ceased to have any interest in the half share of Gopisram in the house. What defendant 2 obtained by her auction purchase in execution of her mortgage decree was the separate interest of Gopiram in the house. She could not be heard to say that the mortgage of 1925 was void. It is not disputed that Gopiram him-self could not raise the objection. How can then defendant 2, a transferee from Gopiram, take that objection? Mr. K.K. Banarji contends that defendant 2 being now in 1 possession of the property, can defend her possession and resist the claim of the plaintiff ; but he ignores the fact that defendant 2 has acquired only the interest of Gopiram and not the interest of the entire joint family. Mr. K.K. Banarji relies on certain observations of the Privy Council in Lachhman Prasad Sarnam Singh A.I.R. 1917 P.C. 41 and Manna Lal v. Karu Singh A.I.R. 1919 P.C. 108. In these cases their Lordships observed that: A mortgage of the joint family property of a Mitakshara family by its karta, unless necessity or an antecedent debt is proved, is void; the transaction itself gives to the mortgagee no rights against the karta's interest in the joint family property.

(3.) But it is to be observed that in both these cases the mortgage was challenged by the other coparceners. In other words, the coparcenary still existed and the mortgaged property still remained the coparcenary property and, therefore, the other coparceners could challenge the mortgage as void, that is to say, not binding on the joint family. In the present case the objection, as I have already stated, is not taken by any other coparcener because the coparcenary has long ceased to exist. In Madan Lal V/s. Chiddu A.I.R. 1930 All. 852 it was held that: An alienation made by a member of a joint Hindu family is not void but voidable at the option of the other members thereof or any one of them I and that it cannot be impeached by the alienor himself or by any transferee who has not acquired by transfer or prescription the interest in the property alienated of the entire joint family.