RAM CHARAN LONIA Vs. BHAGWAN DAS MAHESHRI

JUDGEMENT

(1.) BLANESBURGH , J 1. The broad issue in this suit is whether a sale of ancestral zamindari property agreed to be made to the appellant, Ram Charan Lonia, and another, now deceased, by the nominal respondent Gopal Das, the head of a joint Hindu family to which the property belonged, is binding upon the major and minor sons of Gopal Das. If it is, no further difficulty arises. If it is not, then the order proper now to be made may in the somewhat unusual circumstances of the case raise supplemental questions of nicety.

(2.) GOPAL Das is a vaishya or trader by caste. His family at the institution of the suit consisted of seven sons: one is now dead. Four of the sons were, on September 3, 1912, the date of the impeached agreement, adult. The other three were then and at the commencement of the suit were still infants. The joint family property included a business at Benares for the sale at first of grain, and later of cloth. From before 1912 the four adult sons had been helping their father in the conduct of that business and in the management of the zamindari. But Gopal Das himself remained throughout the karta of the joint family.

(3.) THE family business was not apparently successful, and the position became embarrassing. In 1909 money had necessarily to be raised and, in circumstances which admittedly called for the advance-although whether on the terms on which it was obtained is another matter-the property was, on July 10, 1909, mortgaged to one Manik Chand to secure a sum of Rs. 10,500. This mortgage was executed by the four adult sons of Gopal Das and by himself, both on his own account and as guardian of his three infant sons. Compound interest at 8¼ per cent, per annum with half yearly rests was reserved by the mortgage, and there was a penalty clause under which the interest could be increased to 9 per cent, per annum similarly compoundable. This, possibly somewhat high, rate, even apart from the penalty added, has attracted the notice of the High Court of Allahabad in the judgment under appeal, and to that aspect of the transaction their Lordships will again advert. For the moment they allude to it only to draw attention to the critical position of the family's free interest in the property should there be any persistent neglect on their part to keep down the interest as it accrued under the deed.