JAHAN SINGH Vs. DRHARDAT SINGH

JUDGEMENT

(1.) This is an appeal by the son of a Hindu mortgagor for a declaration that a mortgage-deed on the basis of which a decree had been obtained by the mortgagee and the mortgaged property had been sold was not binding on the family because there was no legal necessity for the transaction. The decree was obtained on 15 September 1927, and the property was sold on 21 March 1930, and the sale was confirmed later on. But before possession of the property could be delivered to the auction-purchaser, who was the mortgagee decree-holder himself, the present suit was instituted. It was before the filing of the written statement that possession also was formally taken by the auction-purchaser.

(2.) Both the Courts below have dismissed the claim, The trial Court found on the issue relating to legal necessity that the transaction was for legal necessity. The lower appellate Court however has not gone into this question, but has thrown out the suit on the simple ground that the son had failed to prove that the debt had been tainted with immorality or illegality. The main points urged in appeal before us on be half of the plaintiff are : (1) that the son must show immorality or illegality, and (2) that possession not having been delivered to the auction- purchaser at the time of the suit, he was not protected, particularly as he was the mortgagee himself. There is not the least doubt that a transferee from the manager of a joint Hindu family is bound to show legal necessity for the trans for before he can bind the family. On the other hand, it has been held that where property has passed out of the joint Hindu family under an execution sale, it is no longer incumbent on the purchaser to prove legal necessity and that the sons cannot set aside the sale without showing illegality or immorality. A direct case in point is that of Gajadhar Pande V/s. Jadubir Pande , decided by Mukerji, J., and myself where we held that on a suit brought by the sons for a declaration that the mortgage and the auction sale were not binding upon them; upon the ground that the mortgage, was not executed for legal necessity, the plaintiffs could not succeed without showing that the debt of the father was one tainted with immorality, and that there was no distinction in such cases between a debt secured by a mortgage and an unsecured debt.

(3.) The learned advocate for the appellant however contends before us that there are certain observations in the judgment of two learned Judges in Jagadish Prasad V/s. Hoshyar Singh , which either over rule this case or shake its authority. There is no doubt that there are some observations which suggest a contrary conclusion, while the third member of the Bench adhered to the view previously expressed. Suraj Bansi Koer V/s. Sheo Pershad Singh (1880) 5 Cal. 148, was a case where a suit had been brought on behalf of the minor sons to set aside a sale in execution of a decree obtained upon a mortgage executed by their father of certain immovable property belonging to a joint family governed by the Mitakshara law. The property was sold at auction on 28 July 1870, and the suit was instituted within a month of that date, namely, 27 August 1870. It is not clear that the sale had been actually confirmed nor does it appear that possession had been delivered to the auction-purchaser during that short time. Their Lordships approved of the previous pronouncement in Muddun Thakur Vs. Kantoo Lal (1875) 1 I.A. 321, viz.: A purchaser under an execution is not bound to go further back than to say that there was a decree against the father; and that the property was property liable to satisfy the decree, if the decree had been given properly against the father. In such a case, one who has bona fide purchased the estate under the execution and bona fide paid a valuable consideration for the property, is protected against the suit of the sons seeking to set aside all that has been done under the decree and execution and to recover back the estate as joint ancestral property.