VITHAL YESHWANT GAVDE Vs. SHIVAPPA MALLAPPA HOSMANI

JUDGEMENT

(1.) The plaintiff sued to re cover on a simple registered mortgage-bond Rs. 9,400 principal and Rs. 9,400 as interest, with costs and future interests at 12 per cent. The original mortgagor was one Krishnappa Annappa. The pedigree of the falmily is as follows:

(2.) When the mortgage was executed Kashi Nath, the son of Yeshwant, the brother of Krishnaji, was separated from the family. The members who remained joint were Krishnaji, his son Waman and Vithal, the brother of Kashinath. A decree was passed in favour of the plaintiffs for Rs. 18,800, with costs and future interest at 12 per cent, per annum on Rs. 9,400 from the suit date till the expiry of six months from the date of the decree and at 6 per cent, thereafter until satisfaction. On failure to so pay, the mortgaged property, excepting the interests of defendant No. 3, if any, in it, or a sufficient portion of it, was to be sold towards satisfaction of the mortgage. The personal remedy was held to be time-barred. The principal issue in the case was whether the mortgaee was executed for a joint family necessity. The Judge found that issue in the affirmative. The 2nd defendant Vithal has appealed. In 1909, Krishnaji was the sole adult member of the family. He carried on an iron shop and a grocery shop, which undoubtedly were businesses belonging to the family. From 1906 to 1909 Krishnaii had also carried on an oil shop. But that was a new business, and so the other members of the family would not be liable for any debts which were due by that shop. In 1900 Krishnaji entered into a partnership with some other persons to deal in mirabolarns, and there can be no doubt that that could not be treated as a family business, and that Krishnaji would be liable for any debts which were incurred for that business.

(3.) The law regarding mortgages of joint family property made by the manager of a joint family governed by the Mitaksbara, who is not the father of the other members, is laid down in Anant Ram V/s. Collector of Etah 44 Ind. Cas. 290 : 20 Bom. L.R. 524 : 34 M.L.J. 291 : 7 L.W. 323 : 4 P.L.W. 226 : 16 A.L.J. 245 : 23 M.L.J. 228 : 22 C.W.N. 184 : 27 C.L.J. 363 : 40 A. 171 : (1918) M.W.N. 446 (P.C.), a decision of the Privy Council. Such a mortgage, it was held, could only be justified so far as it was wanted for the joint family purposes. If the necessity could not be established by direct evidence, it might be assumed, if it could be shown that reasonable care was taken to ascertain if such circumstances existed and the transferee acted in good faith. In either case the burden of proof was on the person who claimed the benefit of the mortgage. It was further held that if the mortgage-debt was not incurred for necessity, not even the mortgagor's own interest could be sold in enforcement of such a mortgage.