CHIRANJI LAL Vs. BANKEY LAL

JUDGEMENT

(1.) This appeal has been referred to a Full Bench because the learned Judges before whom the appeal came thought that the case of Anantu Kalwar V/s. Ram Prasad Tewari AIR 1924 All 465, had been wrongly decided. The suit arose in the following circumstances: A pedigree at p. 15 of the printed paper book will show the relationship that existed among the parties to the suit, except defendant 1, who is a transferee. Ram Prasad, Ram Singh and Mt. Mahtab Kunwar, mother of the plaintiff Chiranji Lal, executed a usufructuary mortgage for Rs. 12,441, on 15 July 1924. Chiranji Lal brought the suit out of which this appeal has arisen to obtain a declaration that the mortgage-deed was not binding on him, and he also sued for recovery of possession to the extent of his third share. The first Court went into the question of legal necessity and came to the conclusion that there was none except to the extent of Rs. 500-4-0, being a third share of the total amount binding on the whole family. It accordingly directed that the plaintiff should be put in possession of a third share of the property on payment of Rs. 500-4-0.

(2.) The plaintiff filed an appeal, and it was heard by the learned Additional District Judge of Agra. The learned Judge came to the conclusion that the mortgage was binding on the plaintiff and he accordingly, dismissed the suit. In this Court it has been contended that the learned District Judge misunderstood the law relating to liability of Hindu families, especially that of a Hindu son and a grandson, and his decision is liable to be set aside. On pp. 16 and 17 of the paper book will be found a statement of the items which go to make up the entire consideration of Rs. 12,441. As regards the items (b), (c), (d) and (e), it is conceded before us that the finding of the learned District Judge that these are sums for which the plaintiff is liable is binding on us. It has been found that certain lands were taken on lease from the creditor, Banke Lal, by the adult members of the family, for the benefit of the entire family. The two decrees for arrears of rent, which went to make up Rs. 757-8-0, were decrees for which the entire family was liable.

(3.) Similarly, it has been found that for the arrears of rent amounting to Rupees 380-12-0, the whole family was liable. It has also been found that the simple money bonds, which went to make up the amount of Rs. 905, were executed in order to pay off arrears of rent due. As regards item (c), the decree of the Munsif was against the plaintiff, Chiranji Lal, himself. It is therefore bind ring on him. The last item (h) has also been found to be binding. The item (g) was due on a decree which was binding on the plaintiff himself. Therefore it is binding on the plaintiff, and he cannot go against it. There remain now the two items (a) and (f), which require consideration. These are two mortgages, executed by Shib Lal, the grandfather of the plaintiff, and Zabar Singh, the father of the plaintiff. The learned District Judge held that, as they constituted antecedent debts, it was open to the uncles of the plaintiff Chiranji Lal to execute a mortgage to pay off those debts. The learned District Judge did not consider whether the mortgages (a) and (f) were or were not supported by legal necessity. The question whether a debt is antecedent or not arises only when the father makes a transfer. Their Lordships of the Privy Council in the well-known case of Brij Narain Rai V/s. Mangla Prasad AIR 1924 PC 50, laid five propositions of law which would be found printed at p. 104 (of 46 All.). The first proposition is as follows: The managing coparcener of a joint undivided estate cannot alienate or burden the estate qua manager, except for purposes of necessity.