SUKHADAKANTA BHATTACHARJYA Vs. JOGINEEKANTA BHATTACHARJYA

JUDGEMENT

(1.) The common ancestor of the parties to this suit was one Kamala-kanta. He left three sons, from whom three branches of the family originated. From Ramanikanta, the barha hishya; from Durgakanta, the madhyam hishya and from Anandakanta, the chotta hishya. The plaintiff Jogineekanta is the son of the eldest son of Durgakanta, whose other three sons are not parties to this suit. Defendants 1 and 2 are Uday-kanta and Hridaykanta, two of the sons, of Ramanikanta, whose other two sons, Jamineekanta and Kumudakanta, are defendants 3 and 4 respectively. Defendant 5 is the grandson of Anandakanta by his son Saradakanta. The plaintiff's case was as follows:?That, in 1313, madhyam hishya separated in mess from the other two branches, which remained joint; that Saradakanta, father of defendant 5, the then head of the chhota hishya, was the karta of the joint family consisting of the said two hishyas, but in and from 1317, defendants 1 and 2, Udayakanta and Hridaykanta, managed its affairs; that, on the 20 Magh 1317 (=3 February 1911), defendants 1 and 2, as kartas of the said joint family, executed a mortgage in favour of the plaintiff and his father for a sum of Rs. 12,000 on account of certain dues and liabilities of the family to that extent, for which the members of the family stood indebted to them; that since then, certain amounts were paid by the said two defendants from time to time on behalf of the family and a sum of Rupees ten thousand odd remained due and that, in the meantime, a part of the mortgaged properties has been sold away. The plaintiff's father having died, the properties left by him devolved on the plaintiff by inheritance. Treating the amount due as a joint debt of the defendants, the plaintiff instituted this suit praying, in the first instance, for a money decree against all the defendants. In default thereof, be prayed for a mortgage decree against the mortgaged properties with the exception of those that had been sold away.

(2.) The contesting defendant was defendant 5, who alleged that the two branches of the family were not joint at the time of the loan, nor were defendants 1 and 2 kartas of any such family; that the debt was not incurred by the said defendants as kartas or for purposes of the joint family or for legal necessity; and that his father Saradakanta or his branch was not benefited. He pleaded that the suit was the outcome of collusion between the plaintiff and defendants 1 to 4. It was also pleaded that the claim against defendant 5 was barred by limitation. The Subordinate Judge has made a decree in plaintiff's favour against all the defendants for the amount claimed together with interest at 6 per cent per annum till realization and has ordered that such decree should be a personal decree against defendants 1 and 2, and so far as it is against the other defendants their shares in the joint properties would be liable.

(3.) Defendant 5 has appealed. As regards the facts found by the Subordinate Judge, we think his findings are correct. He has found that the family was joint at the time when the mortgage was executed, that the madhyam hishya separated from the other two branches in 1313, but the properties of the three branches remained joint till 1334, that the debt was the debt of the joint family consisting of the said two branches, i.e., the barha hishya and the chhota hishya, that it was incurred for family purposes and for legal necessity and was ratified and acquiesced in by all the defendants, that the mortgage was executed by defendants 1 and 2 at a time when they were in charge of the affairs of the said joint family and that the transaction benefited the entire family including defendant 5's father and his branch. The Subordinate Judge has arrived at the aforesaid conclusion upon a most elaborate and extensive discussion of the materials on the record. On an examination of those materials and for reasons which he has given and which we see no necessity to repeat, we think we must uphold those conclusions. The arguments addressed to us on behalf of the appellant have not shaken those conclusions in the least. If the findings stand as in our judgment they must, the question of limitation also does not arise.