ANANDA PANDURANG Vs. UTTAMRAO

JUDGEMENT

(1.) 1. The judgment of this appeal will also cover Second Appeal No. 218-B of 1930. One Baliram Sonaji had mortgaged his field No. 10/1 to Ramchandra Dhansingh on 5th October 1917. He executed a second mortgage of this field on 6th April 1921 in favour of Kisanlal Amarchand together with an-other field. After this he leased the field for a period of. 15 years for payment of Rs. 600 to Pandurang, father of the plaintiff. He had a partner with him in the lease, one Prabhakar. In 1924 Kisanlal brought a suit on the basis of his mortgage and obtained a decree which was satisfied by Pandurang, the plaintiff's father by a payment of Rs. 8,000 odd in the following year. Ramchandra Dhansingh brought a mortgage suit on the basis of his mortgage and Pandurang was made a party, but he declined to redeem the mortgage and Ramchandra obtained a preliminary and final decree. The plaintiff who is a minor then brought a suit out of which these appeals arise, claiming a right to redeem the property on the ground that he was not made a party to the former suit where his father refused to redeem and that his father did not represent him in the suit and that he acted prejudicially to his interest therein in declining to redeem. The defendant Ramchandra contended that the decision in the previous suit where the father declined to redeem is binding on the son who was properly represented by his father and denied the right of the plaintiff as a son of the lessee to redeem at all. On the actual question of the redemption money the plaintiff claimed that he was not bound to pay more than double the mortgage money on the principle of damdupat, but the defendant contended that as he had been put in possession as a result of his foreclosure decree in 1927 he was a mortgagee in possession and consequently liable for accounts, and following the ruling in Panduji v. Panduji (1916) 12 NLR 1, the rule of damdupat did not apply.

(2.) THE trial Court found on the preliminary issue that the suit was maintainable by the plaintiff and that although he had been represented by his father, with whom he was joint in the previous suit, yet there had been a signal failure on the part of his father to protect the interests of his son and that accordingly the son was not effectively represented by his father and was entitled to repudiate his father's representation in that case. Holding that the son was entitled to redeem, the trial Court further held that the rule of damdupat applied and further that the son was entitled to redeem the whole property and not as the defendant urged only one quarter thereof. The defendant's plea was that Pandurang's partner Prabhakar had failed to redeem his portion, and as the father also declined to redeem his half share in the half that remained joint family property with his son that too should be excluded and the plaintiff's claim should be limited to one quarter of the whole. In appeal by the defendant the judgment was modified to the extent that it was held that the rule of damdupat did not apply and that the amount due and payable in redemption was Rs. 1,850 and a decree was passed in plaintiff's favour allowing him to redeem 1/4th share only on payment of one quarter of Rs. 1,850. This judgment is challenged in two appeals, one by the plaintiff for the restoration of the trial Court's judgment and one by the defendant claiming the total reversal of that judgment.

(3.) THIS principle was restated by their: Lordships of the Privy Council in Lingangowda v. Basangowda , where it' is laid down that a decree obtained by or against the managing member of a joint Hindu family is binding upon minor members of the family under Section 11, Expl. 6, Civil P. C., 1908, if it appears to the Court that the manager was acting in the former litigation on behalf of the minors in their interests; and Moti. v. Kanhva (1909) 5 NLR 181, also stresses the consideration of the bona fides of the manager of the joint family if he is to be held representative of the family in litigation. Now no doubt it has been laid down an Lalchand Thakur v. Seogobind Thakur: AIR 1929 Pat 741 that the mere fact that the manager of the family did not contest the suit does not necessarily show that he was careless of the interests of his family. The facts in the case how under discussion go far beyond a mere omission of a father to take part in the suit. The money used in payment of the lease is admittedly the joint family property as is the sum of Rs. 8,000 odd which was used to redeem Kisanlal's mortgage. The amount due for redemption of this second mortgage was but a fraction of the earlier amount, and in declining to redeem the father did grave injury to the family property in ignoring the interest of the son, and the right of the son to bring a suit for redemption has been correctly decided in both the lower Courts.