JAGDISHPRASAD RAMLAL Vs. DBAMBASHANKAR UTTAMRAM MALJI

JUDGEMENT

(1.) This appeal raises an interesting point of Hindu Law as to the liability of a minor member of a joint family in connection with a new business started by his grandfather and father. The point arises in this way. On January 18, 1922, a mortgage deed was executed in favour of the plaintiff in the suit, from which this appeal arises, by defendant No. 1 in the suit, Rao Bahadur Motilal Chunilal Desai, and defendants Nos. 2 and 3, who were his sons. Defendant No. 2 signed the mortgage not only for himself but as the guardian of his minor son, defendant No. 4. The consideration for the mortgage was Rs. 24,999, and the bulk of this amount, that is Rs. 21,808, was due in respect of advances made by the plaintiff in the year 1920 for the purpose of financing a ginning factory started by Rao Bahadur Motilal or by him and his sons together in about 1917. The suit was brought to recover Rs. 38,753-10-6 upon this mortgage. The principal question in the suit and the only question in this appeal is whether the interest of the minor defendant No 4 in the joint family property which was mortgaged to the plaintiff is liable for the mortgage debt. The trial Judge held that the minor's interest is liable, relying mainly on the decision of this Court in Bal Rajaram Tukaram V/s. Maneklal Mansukhbhai, AIR 1932 Bom. 136

(2.) Now, it is conceded that the decree appealed from was right according to the law as it was understood in this Presidency at the date when the judgment was delivered. It is necessary to bear in mind and to distinguish (1) the authority of the manager to contract debts for the necessary purpose of an ancestral business and (2) the liability of the son to pay the debts of his father, apart from any question of necessity. In Sanyasi Charan Mandal V/s. Krishnadhan Banerji, AIR 1922 PC 237 PC it was held by the Judicial Committee that the manager of a joint family cannot impose upon a minor member of the family the risk and liability of a new business started by himself and the other adult members. That was a case under the Dayabhaga Law, but that is immaterial in view of the most recent pronouncement of their Lordships in Benares Bank, Ltd. V/s. Hari Narain . In the course of their judgment their Lordships observed as follows (p. 114 Page of 19 I.A.--[Ed.]): The distinction between an ancestral business and one started like the present after the death of ancestor as a source of partnership relations is patent. In the one case these relations result by operation of law from a succession on the death of an ancestor to an established business, with its benefits and its obligations. In the other they rest ultimately on contractual arrangement between the parties As Sir Dinshah Mulla in his Commentary on this case at p. 263 of the 7th Edn. of his Principles of Hindu Law points out: The decision proceeds on the ground that a minor could not become a partner by contract, though he might be admitted to the benefits of the partnership ; and since a new business could rest only on contractual arrangement, a minor could not be a partner in such business

(3.) In Annabhat Shankarbhat V/s. Shivappa Dundappa, AIR 1928 Bom 232 it was held that a new trading business opened by the father as the manager of the family is nonetheless ancestral because it was started only by, the father. But the decision of the case really turned upon the finding that the trade debts of the father were not immoral and the sons were bound to pay them. The subject of the father's power to deal with coparcenary property for payment of antecedent debts is dealt with in Sir. Dinshah Mulla's book in para. 29.3, where it is pointed out that the father of a joint Hindu family may sell or mortgage the joint family property including the son's interest there in to discharge a debt contracted by him for his own personal benefit, and such alienation binds the sons, provided (a) the debt was antecedent to the alienation and (6) it was not incurred for an immoral purpose. The validity of an alienation made to discharge an antecedent debt rests upon the pious duty of the son to discharge his father's debt not tainted with immorality. There is no question of legal necessity in such a case.