PARASHRAM Vs. UMRAO PRASHAD

JUDGEMENT

(1.) 1. The learned Counsel for the appellants urges only two points. The plaintiffs in a previous suit impleaded two adult brothers and the minor son of one brother. Their suit was based on a mortgage-deed, but they asked only for a personal decree. They obtained a personal decree against all the defendants, but it is conceded that the personal decree against the minor defendant was ineffective.

(2.) IT is first urged that as the plaintiffs in that suit impleaded the minor defendant but obtained no decree, it was not open to the major defendants to mortgage the joint family property in order to satisfy the decree. The appellants' counsel refers to Ganesha Row v. Tuljaram Row (1913) 86 Mad 295, but in that case it was held that when a minor member of the joint family was a party to the suit, the father or manager could not in that suit do any act in that capacity which he was debarred from doing as next friend or guardian without leave of the Court. Clearly the father could allow a personal decree to be passed against him self. The failure of the plaintiffs to obtain an effective decree against the minor does not show that the debt was contracted for illegal or immoral purposes. It is quite clear that there was no finding to this effect. The father then as a result of the transactions which led to the decree owed a debt. Unless this debt was contracted for illegal or immoral purposes (and it is not urged before me that the debt was so contracted) the father could mortgage the joint family property in order to pay this debt and did so and the decree for foreclosure of the property has rightly been passed. The other point urged is that the debt was barred by time when the previous suit was instituted. It is sufficient to say that the Judge who heard the witnesses has believed the evidence, that a payment was made and there is no reason for taking a different view of the evidence. It is unlikely that the plaintiffs who could have applied for a mortgage decree would choose instead to ask for a personal decree which was barred by time. The appeal therefore fails and is dismissed. Costs on appellant.