SHEO PRAKASH Vs. ALA-UD-DIN

JUDGEMENT

(1.) My learned colleague and myself are agreed that the decree given by the Court below in this suit is erroneous but we differ, unfortunately, as to the relief which the mortgagee-plaintiffs are entitled to obtain. The principal facts are set out in my learned brother's order, but I desire to lay particular stress on the position and constitution of the family to which the mortgagors belonged and for this purpose reference must be made to the award made by Moulvi Farid-ud-din and Munshi Shaikh Shams-ud-din on the 26 July 1897. This document is to be found in Part III of the printed record of this case. Reference must also be made to a further award by Muhammad Rahmat Ullah in the year 1901, which is to be found in the printed record of First Appeal No. 193 of 1915, (see the appellants book, page 10 et seq).

(2.) To deal first with the award of the 26 July 1897. This document sets out in detail the constitution of the family to which the mortgagors belong. Although a Muhammadan family, it is declared to be a joint family and it is clearly stated that although the members incurred debts and hypothecated properties which, stood recorded in their own names the entire property of the family was joint property and those persons whose names were entered in the public register did not acquire any separate rights.

(3.) The following extract from this award maybe quoted: All lived as members of a joint family and the entire business of all of them was joint. No sort of separation existed between them.... This jointness of the family existed in all household affairs and in the purchase and acquisition of property, debts, expenditure on marriages and debts and in all other matters. No sort of disunion or separation existed in this family and in view of permanent jointness the property was entered in different names and in different ways. Some property was purchased in the name of some body and some in the names of others. This was the case of debts also. Some loans were taken in the name of one person and some in the names of others. Sometimes this jointness extended so far that the name of some particular person was recorded in the public register against the ancestral property inspite of the specification of shares.... On the other hand the inference is simply that loans were taken in the names of different persons at different times and in lieu thereof the property of any; of the executants of documents relating to debts was hypothecated specifying therein the ancestral property or that property which was acquired in his name.... We are of opinion that these facts do not affect the jointness of the family; on the other hand this is a practice observed in all joint families.