L JAGANNATH PRASAD Vs. CHUNNI LAL

JUDGEMENT

(1.) This is a first appeal brought by the following defendants: defendant 2 Om Prakash, his son defendant 3, Gandharab Singh, a minor and defendant 5, Jagannath Prasad. The plaint sets forth in para. 8 that defendants 5 to 10 are the subsequent transferees of the property in mauza Shikohpur and that they have been made pro forma defendants. This allegation is admitted by Jagannath Prasad, defendant 5, who is one of the appellants before us, so far as it concerns himself. It has not been made clear from the record exactly what share the appellant Jagannath Prasad now holds. But he is a transferee from some of the defendants, defendants 1 to 4. The family pedigree is as follows:

(2.) The plaintiffs sued on a mortgage dated 15 September 1922 executed by Udai Prakash for himself and as guardian of Om Prakash minor. The mortgage was in favour of Chunni Lal plaintiff and Ratan Lal now deceased, the father of the minor plaintiff Ajir Prasad. The property hypothecated was in mauza Biswan and mauza Shikohpur. But the plaint sets forth that as the property in mauza Biswan is highly encumbered and there is no prospect of getting anything out of it, it is exempted from this suit. The mortgage money was Rs. 6,000 and the claim in the plaint is for Rs. 25,088-10-0. Interest was at 2 per cent per mensem with six- monthly rests. The plaint sets forth that defendants 1 to 4 were members of a joint Hindu family and that debts were contracted for legal necessity and antecedent debt. There was no written statement on behalf of defendants 1 to 4, but the case for defendants 2 and 3 has been argued before us along with the case for defendant 5, Jagannath. The written statement of defendant 5 sets forth that the document in question was executed on 15 September 1922 when Udai Prakash was a minor and therefore it was invalid. Further it was pleaded that there was no legal necessity and it was stated in para. 15 that Udai Prakash was not joint in family with his brothers; that Fateh Singh, the eldest brother, was the certified guardian of Udai Prakash and Om Prakash, the two executants of the document. The following questions arise in this case: 1. (a) Did Harbans and Fateh Singh separate from the minor members of the family in 1915 ? (b) Did this separation effect the separation of the two minor members Udai Prakash and Om Prakash inter se ? 2. Was Fateh Singh the certified guardian of Udai Prakash and Om Prakash on 15 September 1922, and if so, was Udai Prakash incompetent to execute the mortgage in question ? 3. Was Udai Prakash a minor at the date of execution, 15 September 1922 ? 4. Has legal necessity been proved ? 5. Has the mortgage in suit been ratified by Om Prakash on attaining majority on 5 March 1924 ? 6. Is the rate of interest excessive ? 7. Is there any clerical error in the decree ?

(3.) The history of this family on which reliance is placed for separation is as follows: On 26 September 1912, Harbans Singh made an application for his appointment as guardian of Udai Singh and Om Prakash which is printed on p. 27. The statements in that document are admissible in evidence as Harbans Singh is now dead. In that document he set forth that the creditors were making pressing demands for the payment of their debts and the property had been advertised for sale and that it was desirable to make arrangements to pay off the debts. That application was refused. Subsequently an application was made by the eldest son Fateh Singh to be the guardian of the two minor sons and that application was granted by the District Judge on 26 May 1915. Accordingly from that date Fateh Singh was the certified guardian of hi? two minor brothers. There is an order of the District Judge dated 1 December 1915, in this guardianship case in which the District Judge sanctioned a mortgage and in his order it is set forth "Harbans Singh and his major son Fateh Singh have sold their 5 biswas share," the village in question being Based. It is further stated in an order of the District Judge of 17 February 1916, that Fateh Singh and his father had sold their shares outright in this village and that the main property of the family was in this village Basod, There was left only the share of the minors. Now the allegation is that Harbans and Fateh by having an application in guardianship made for the minor members of the family thereby effected a partition of the family property. It is well- established law that if a family remains joint, it is not open to the District Judge to appoint a certified guardian for the minor members for their share of joint family property. Therefore we must assume that the appointment of a certified guardian implies that ipso facto the minor members arc being separated from the adult members. This presumption in the present case is further strenthened by the subsequent action of the adult members in disposing of their shares of the property after separating their shares from, the shares of the minors. We therefore, hold it established that in 1915 there was a separation effected between Harbans and Fateh on the one hand and Udai Prakash and Om Prakash on the other hand.