RAJ SINGH Vs. SETH KISHAN LAL

JUDGEMENT

(1.) This is a first appeal against a decree passed by the learned first Subordinate Judge of Saharanpur, in favour of the plaintiff in a suit for sale upon the basis of a mortgage. It will be convenient to state certain facts in chronological order. On 3rd August 1923, Kishan Lal, the plaintiff, executed a theka or lease in favour of Ran Singh, one of the original defendants, and of Indarjit Singh who is not a party to this suit. The property comprised in this lease was an area of about 150 village bighas in the village of Landhaura and 85 village bighas in the village of Kabirpur Mazra. The lessees were to pay every year a sum of Rs. 310 to the Government as revenue and a sum of Rs. 1,120 to Kishan Lal. On 22 December, 1924, Kishan Lal sold the land in Kabirpur Mazra to a person who is not a party to the suit and on 23 December 1924, be sold the property in Landhaura for a sum of Rs. 22,000 to Indarjit and to the original defendants 1-4, i.e. Ran Singh, Balwant Singh Bharat Singh and Durga Singh. Indarjit acquired one-third of the property and paid for it in cash. The other four vendees, in order to supply consideration on their part executed a mortgage of the property which they had purchased and of certain other property in five villages which is admittedly their ancestral property. The amount secured by this mortgage was Rs. 15,000. The deed of sale and the deed of mortgage were both presented for registration on 23 December 1926. Then on 22 December, 1930, Kishan Lal instituted the suit which has given rise to this appeal on the basis of the mortgage. He claimed a sum of Rs. 15,000 as principal and a sum of Rs. 14,600 as interest. The rate of interest to which the parties had agreed in the deed was Re. 1 per cent per mensem compound. The plaintiff impleaded not only the four mortgagors, but also their sons and grandsons who were defendants 5-14. As we have already said, the plaintiff obtained a decree from the Court below. This appeal has been instituted by the sons and grandsons of the mortgagors. Their defence to the suit was that they and the four mortgagors were all members of a joint Hindu, family and that there was no necessity for the transfer by way of mortgage. We may mention at this stage that Durga Singh is the son of Mohar Singh and that Bharat Singh, Balwant Singh and Ran Singh are the grandsons of Fateh Singh. Mohar Singh and Fateh Singh wer brothers. Indarjit Singh who was concerned in the lease and in the sale is the grandson of Jiwan Singh who was another brother of Fateh Singh's and Mohar Singh s.

(2.) The first question which has arisen is whether it is true that the four mortgagors and their sons were all members of the same joint Hindu family. Although the property in the five villages other than the village to which the deed of sale referred is admittedly ancestral, this question of jointness has acquired some importance because it is pointed out that Durga Singh and Balwant Singh had no sons living when the mortgage was executed. Durga Singh's son, Bhopal Singh, was-about 8 months old and Balwant Singh's son, Bijai. Pal Singh, was about one year old at the date of the institution of the suit. The learned Subordinate Judge in discussing this question has said: There is no proof on behalf of the plaintiff that the family of the mortgagors was separate, nor is there any such plea clearly taken in the plaint. There is a presumption of Hindu law that the family is joint and more so in the case of own brothers.

(3.) It has been argued that there was no presumption in favour of jointness because Indarjit Singh had admittedly separated from the rest of the family. We may concede that where one member has separated from the others, the presumption that the family is joint disappears; but, we must emphasize the fact that no contrary presumption arises that the other members have separated. In these circumstances, the question whether the defendants were members of the joint Hindu family or not is a question dependent on proof. Learned Counsel for the plaintiff-respondent has placed some reliance upon the recitals in the mortgage-deed. In describing themselves the mortgagors have said that Bharat Singh was acting on his own behalf and as the guardian of his son, Raj Bhagwan Singh, and as member and, managing head of a joint Hindu family, and Ran Singh has also described himself as the managing head of a joint Hindu family and the guardian of his minor sons. The conclusion which counsel for the plaintiff would have us draw is that the four mortgagors obviously considered themselves as separate, the two who-had sons acting as managing members of two separate joint Hindu families consisting of themselves and their sons. He places reliance also upon the fact that each of the mortgagors held himself liable for a definite and separate amount of the mortgage debt. We do not think that any importance can be attached to the recitals in the deed which evidenced the transaction. A reference has also been made to the sale deed under which specific -shares in the property are allotted to the four mortgagors. The same argument applies to this document as to the deed of mortgage. Apart from these documents there is only oral evidence to support the allegation that the members of the family had separated. The witnesses are Munshi Ram, Nihal Singh, Hnrkesh Singh, Ram Singh and Chater Singh. Thee witnesses have certainly said that the members of the family are separate, but their evidence is vague and unconvincing. It is not quite clear whether they mean that the various members of the family are separate in the sense that they are no longer members of a joint Hindu family or whether they merely mean that for the sake of convenience they live in separate houses or separate parts of a house and have their meals separately. There is evidence on the other side of a similar kind and all we can say is that none of this evidence is sufficient to justify a definite finding either way.