JAI SAHU Vs. HADIBANDHU BEHERA

JUDGEMENT

(1.) THIS is an appeal by defendant 2. The suit was brought on a mortgage bond executed by Gangadhar Sahu, the since deceased paternal uncle of defendant 2 and husband of defendant 1. The bond was for an amount of Rs. 192 borrowed for the maintenance of the family and repairing their house and for a grocer's shop. Defendant 2 who was joint with Gangadhar was a minor when the mortgage bond was executed. He alone contested the suit and urged that the bond was not genuine and that it was not supported by consideration or any legal necessity. The lower Courts have concurrently overruled the defence and allowed a mortgage decree. The only point raised before me is that Gangadhar Sahu had no authority to alienate immoveable property belonging to the joint family for the purpose of starting a new business and that therefore the mortgage bond should not have been held to be binding on the appellant.

(2.) IN support of this contention the learned advocate has cited the Benares Bank Ltd. V/s. Hari Narain and Biswanath Singh V/s. Kayestha Trading & Banking Corporation, Ltd. AIR 1929 Pat 422. The findings of fact are not very clear, the difficulty being due to the somewhat ambiguous phraseology of the mortgage bond in stating one of the purposes for which the loan was taken. The expression modi doken kariba sakase which was used in the bond in this connexion is apparently capable of meaning indifferently for the purpose of "carrying on" a modi's shop or for the purpose of "starting" such a shop. The learned Additional Subordinate Judge was of opinion that it was immaterial in the circumstances of this case which of these two meanings was attached to the expression, and he referred to the evidence that the family of the mortgagor belonged to the caste of telis and was indebted and had had to sell the ancestral house when the conclusion, which is described as very highly probable, was drawn that Gangadhar would have a grocery shop to supplement his income as a clerk in the Commissioner's office. The power of the manager of a joint Hindu family to enter into business transactions for the support of the family--and it must be remembered in the present case that on the findings of fact of the Courts below, a shop whether new or old was only to be carried on for the purposes of maintaining the family--is to be judged (when in the exercise of such power the family property is charged or alienated by the manager) by the consideration whether the transaction was one into which a prudent owner would enter. 4. This in substance was laid down as long ago as 1856: see Hunooman Persaud Panday V/s. Babooee Munraj Koonweree (1854) 6 MIA 393 as applied by this Court in Ram Chandra Singh V/s. Jang Bahadur Singh AIR 1926 Pat 17 a case which was referred to in the ruling, Biswanath Singh V/s. Kayestha Trading & Banking Corporation, Ltd. AIR 1929 Pat 422, cited by the learned advocate for the appellant. IN the case of Benares Bank., Ltd. V/s. Hari Narain their Lordships of the Judicial Committee only dealt with the principle laid down in Sanyasi Gharan V/s. Krishnadhan Banerjee AIR 1922 PC 237 which however was a case of a joint family which owned two ancestral businesses and the question was how far the minor members of the family were bound to share the disadvantages of a new business started by some adult members of the family. The present is not a case of that kind at all. We have here a teli family whose ordinary business, I understand, would be carrying on some business such as that of a modi. As it happened the only adult male member of the family, appellant's uncle, was engaged as a temporary clerk in the Commissioner's office on Rs. 30 a month, but there were four mouths to feed, and even according to the appellant the circumstances of the family were such that their ancestral house was sold, there being apparently no suggestion by the appellant that that sale was unjustified. 5. The appellant also claimed that with the proceeds of that sale Gangadhar purchased another house which too was sold, the house mortgaged being purchased with these proceeds. This part of the story has not been accepted by the lower appellate Court. It is clear in the circumstances that the joint family was in embarrassed circumstances and that it was necessary to supplement Gangadhar's income for the maintenance of the family. Carrying on or opening a grocer's shop was moreover by no means the only object for which the loan secured by the mortgage was taken, nor can it be said, having regard to local conditions that a modi's shop started by a teli is either a luxury or a speculative transaction. 6. Had it been a transaction of this kind, the mortgage would clearly not have been binding on the appellant to the extent that a part of the loan was taken for such a purpose. There is however no finding what part of the loan was taken for the purposes of the shop, and there is no finding either that a new shop was started. The proposition that immoveable property belonging to the joint family must not be burdened with debts contracted for the purpose of a new business does not seem to me, in view of the oases from Ram Chandra Singh V/s. Jang Bahadur Singh AIR 1926 Pat 17 and Biswanath Singh V/s. Kayestha Trading & Banking Corporation, Ltd. AIR 1929 Pat 422 to which I have referred, to be applicable to the facts of the present case. The appeal therefore fails and is dismissed with costs.