DURGA PROSAD BARHAI Vs. JEWDHARI SING

JUDGEMENT

(1.) This is an appeal by the defendant and arises out of a preliminary decree in a suit on mortgage commenced by the plaintiff. The decree is dated 15 February 1932. The suit was to enforce a mortgage executed by one Jadu Nath Sarma, who is said to be the Karta of a joint Mitakshara family, on 26 May 1922. Jadunath hypothecated by this document the immoveable properties belonging to the joint family. In order to understand the position of Jadunath with reference to the family it is necessary to state the following facts: One Bhagoo Mistri had three brothers namely Gakul, Nimchand and Fulchand. There was some sort of a partition between Gakul, Nimchand and Fulchand, and Bhagoo got in his share the properties some of which have been mortgaged by the document on which the present suit has been brought. Bhagoo died leaving behind him surviving his son Kali Charan who died on 9th February 1918. Kali Charan had a son Raghunath who died at the age of 42 but during the lifetime of Kali Charan. Kali Charan died on the date already mentioned leaving him surviving Jadu Nath and Durga Prosad, two of his grandsons by his son Raghunath. The relationship between the plaintiff and some of the pro forma defendants to the suit may be shown as follows: Chattar Singh had five sons Jewdhari, plaintiff 1 in the present suit, Deo Narayan, whose son is Bharat Singh, defendant 2, Ramdhiyan Singh whose son is Sadhusaran Singh, plaintiff 2, Ramnarayan, and Sewsagar, whose son is Ambika Singh, plaintiff 3 to the suit. The allegations of the plaintiffs in the plaint are that for the purpose of meeting the expenses of the joint family which consisted of Jadunath himself and his infant brother Durga Prosad, who was born in August 1909, a sum of rupees twelve thousand (Rs. 12000) was borrowed on 26 May 1922, by Jadu Nath as the Karta of the joint family. It may be mentioned that the mother of Durga Prasad, Musammat Daho Kuar, was also a member of the family at the time of the execution of the mortgage. The amount advanced on the mortgage was Rs. 12,000 (rupees twelve thousand) and the mortgage is said to have been executed by Jadunath Sarma for self and as the natural guardian of Durga Prosad, the defendant appellant.

(2.) The interest claimed was Re. 1-8-0 per mensem, that is 18 per cent per annum with nine- monthly rests if the sum be not paid within the period of nine months. The due date of the mortgage was 26 May 1924. The properties mortgaged are given in Schs. A and B to the plaint. Plaintiffs stated that the amount due at the date of the suit on the bond including interest would be about Rs. 54,000 (rupees fifty-four thousand) and that the plaintiffs were giving up a sum of Rs. 9,000 (rupees nine thousand) out of the interest and claimed Rs. 45,000 (rupees forty-five thousand). Plaintiffs accordingly asked for the usual decree for sale, the mortgage being in the nature of a simple mortgage. Several defences were taken in the suit. It was stated that Jadunath was not the karta of the joint family consisting of Jadunath and Durga Prosad. It was also said that the previous debts were neither genuine nor real nor were incurred for family necessity, and that there was no justifying necessity when the mortgage was executed so as to make the alienation binding on the joint family property. A further defence was taken, namely that as Jadunath obtained letters of administration of the estate of Kalicharan, after Kalicharan's death in 1918, the mortgage was not binding on the minor as no sanction was obtained from the probate Court sanctioning the alienation in question. A very important statement is made in the written statement to the effect that a short time before the execution of this mortgage Jadunath, with the permission of the District Delegate of Darjeeling, sold to Abdul Rahim of Calcutta a very good portion of the ancestral properties for Rs. 50,000 (rupees fifty thousand) as administrator, karta and natural guardian of the defendant, and after paying the debts, recited in the deed of conveyance in favour of Abdur Rahim, a very large sum of money, namely Rs. 22,253 (rupees twenty-two thousand two hundred and fifty-three) remained in his hands and there was absolutely no necessity to borrow those twelve thousand rupees from the plaintiffs on 26 May 1922; and it is said that there was no justifying cause for the transfer by way of mortgage.

(3.) It was also alleged in the written defence of the defendants that Jadunath was a man of dissolute habits, and that he became early addicted to wine and women and began to spend his time in debauchery. It was also said that the high rate of interest mentioned in the bond could not be justified even if there was legal necessity for the borrowing. In other words the plea taken was that even if there was any justification for the borrowing of Rs. 12,000 there was no justifying necessity for borrowing on high rate of interest, namely 18 percent per annum, with nine-monthly rests. It is also said that the interest was hard and unconscionable. The Subordinate Judge rejected all these defences and decreed the suit in full. Against this decree the present appeal has been brought by the defendant and several grounds which were based on the defences taken in the Court below and which have been already mentioned, were urged before us in support of the appeal. It was contended in the first place that Jadunath was not really the karta of the joint family consisting of himself and his brother and the mother of Durga Prosad, and that therefore the mortgage could not bind the joint family properties. It was said in support of this argument that Jadunath assumed the role of karta for the time when he was executing the mortgage in question. The Subordinate Judge has, however, relied on the oral evidence adduced in this case and has come to the conclusion that Jadunath was acting as the karta. (His Lordship after agreeing with the lower Court proceeded). We are therefore of opinion that this contention that Jadunath was not acting as a Karta of the joint family must fail. The second contention which is raised on behalf of the appellant is that Jadunath obtained letters of administration of the estate of Kali Charan and having obtained the letters of administration he could not execute a valid mortgage so as to bind the joint family estate without obtaining the sanction of the District Judge. The question really turns on the construction which is to be put on the provisions of Section 211 (2), Succession Act. That clause runs as follows: When the deceased was a Hindu, Mahomedan, Buddhist, Sikh or Jaina or an exempted person, nothing herein contained shall vest in an executor or administrator any property of the deceased person which would otherwise have passed by survivorship to some other person.