WAMAN RAMBHAU MARATHE Vs. MAULADINA AYUB

JUDGEMENT

(1.) 1. This appeal arises out of a suit which the plaintiffs-appellants brought against the defendant-respondent for a declaration that the mortgage of ancestral property, which their father had executed in his favour on 18th April 1922 for Rs. 3,000 and on which he had obtained a decree for foreclosure against him without impleading them was not binding upon them or their shares in the ancestral property because the debt borrowed thereon was not for legal necessity or for the benefit of the estate. The defendant pleaded that the debt was borrowed by the plaintiffs' father as manager of the joint Hindu family for certain definite purposes and was therefore binding upon the shares of the plaintiffs in the joint ancestral estate.

(2.) IN reply the plaintiffs' pleader pleaded that it was apprehended that the debt in question must be for satta business which the plaintiffs' father Rambhau had recently started. Upon these pleadings a number of issues were framed by the trial Court the first six of which related to the question whether the mortgage-debt was incurred by Rambhau for the purposes alleged by the defendant mortgagee. The 7th and 8th issues ran as under: "7. Did Bambhau do any satta? Was the debt in question, borrowed for that purpose? 8. Whether the mortgage-debt in question is binding on the plaintiffs? Is their share liable.?" It may be noted that although it was pleaded that the cotton business was a new one there was no specific issue framed whether it wars new or ancestral. A mass of evidence both oral and documentary was adduced by the parties on a consideration of which the trial Court held that the specific purposes for which the defendant alleged that the debt was borrowed, were not proved but that the debt in question was borrowed for the purposes of dealing in cotton business and that that business was not of a wagering nature. It was therefore held that the mortgage debt was binding upon the plaintiffs and their shares in the mortgaged property. On appeal by the plaintiffs these findings of the trial Court were confirmed and the appeal dismissed. The plaintiffs have therefore come up on second appeal.

(3.) HE however qualified this statement in the next sentence by stating that "This is my inference." But whether the statement was made on an inference or personal knowledge matters little because the statement amounted to an admission by a party. The Courts below were therefore correct in holding that the mortgage-debt in suit was borrowed for the purposes of cotton business or for payment of debts incurred for that business. There is also a clear and concurrent finding by both the Courts below based on a proper appreciation of the evidence on the record, that this cotton business was not of a wagering nature. Since the decision of the lower appellate Court the decision of their Lordships of the Privy Council in Benares Bank Ltd. v. Hari Narain AIR 1932 PC 182 was delivered, in which it is held that money borrowed by the father as manager of a joint Hindu family governed by the Mitakshara law for the purpose of a business which is not ancestral, is not borrowed for legal necessity, and a mortgage granted as security for such a loan is not binding on the minor members of the joint family. It is therefore clear that the dismissal of the plaintiffs' suit on the findings reached by the lower Court is not correct unless it is further found that the cotton business for which the money was borrowed by the plaintiff's father was an ancestral family business and not one started by himself. As already pointed out above there was no issue on this point and consequently there is no finding on it by the Courts below.