NARAYAN RAO GOVINDRAO Vs. MULCHAND

JUDGEMENT

(1.) . 1. This appeal arises out of a suit instituted by the appellant against the three respondents for recovering Rs. 17,500 on the basis of a mortgage deed for Rs. 22,390 executed by respondent 1, Mulchand, for himself and on behalf of the other respondents in the capacity of a guardian on 23rd June 1926. The suit was decreed against the share of respondent 1 alone and dismissed as against the rest. The plaintiff has preferred this appeal.

(2.) RESPONDENT 1, Mulchand, is the brother of Kundanlal, respondent 2 and the father of Khushalchand, respondent 3. These three persons together formed a joint family: Kundanlal owning eight annas share and Mulchand and Khushalchand owning four-annas share each in Mouza Hinnod. On 6th September 1926, Mulchand purchased a four-annas share of Mouza Hinnod including cultivating, rights in sir and khudkasht with incidental rights in the patti along with some moveable property for a sum of Rs. 29,000. Out of the purchase money, Mulchand paid Rs. 1,000 in advance and Rs. 5,610, to discharge a previous incumbrance; and to secure the balance of Rs. 22,390, he executed a mortgage deed in suit. This mortgage deed comprised the proprietary shares held by Mulchand's joint family in Mouza Hinnod as also the four-annas share newly acquired under the aforesaid conveyance. As Khushalchand was a minor and Kundanlal was alleged to be insane, Mulchand executed a mortgage deed acting as their guardian. In the plaint Kundanlal is described as insane and Mulchand is described as his guardian. Mulchand did not enter appearance and the suit proceeded ex parte as against him. Kundanlal disclaimed the insanity attributed to him and resisted the suit on the ground that the purchase of a four-annas patti in Mouza Hinnod for the excessive price of Rs. 29,000 was Unnecessary and that the mortgage executed for the purpose of affording security for the part of the purchase money was, so far from being beneficial, highly detrimental to the joint family. Khushalchand made common cause with him and both claimed exoneration from the mortgage to the extent of their respective shares.

(3.) THE cardinal issue in the case is whether Mulchand's transaction of purchase of a four-annas patti in Mouza Hinnod for Rs. 29,000 entailing the necessity for transferring the joint family property as security for a part of the purchase money was beneficial to the joint family. In Nagraj v. Ganpat AIR 1930 Nag 86 the rule was enunciated that any act of alienation for which the character of "benefit to the estate" can be claimed must be a defensive act. Judging the transaction in the light of that principle the suit could not have been otherwise decided. It is strenuously argued for the appellant that the principle enunciated in Nagraj v. Ganpat AIR 1930 Nag 86 is too restricted in its scope to be accepted as a universal rule and that the expression "benefit to the estate" must be interpreted in a broad and liberal sense so as to comprehend acts intended for the purpose of enlarging estate, as in the present case. The rule laid down in Nagraj v. Ganpat AIR 1930 Nag 86 does not profess to be universal. The learned Judge who laid down the dictum himself recognizes that there may be exceptional cases of benefit to the estate conferred by acts which are not of a defensive nature. On a review of authorities he comes to the conclusion that the rule is applicable in a very large majority of cases but he does not appear to contest the view taken in Jagat Narain v. Mathura Das , that the transactions justifiable on the principle of "benefit to the estate" are not limited to those transactions which are of a "defensive nature." The same learned Judge explained the scope of this rule in Yashoda v. Shamji, A.I.R. 1930 Nag. 218.