GANPATI PANDURANG Vs. MOTIRAM KANHURAM

JUDGEMENT

(1.) THIS second appeal has been received back on remand after the decision of a Divisional Bench under the provisions of the Letters Patent. In view of the ample exposition in the Letters Patent decision, Ganapati Pandurang v. Rameshwar Motiram Reported in , there is no need to recapitulate the facts, and the only point that remains is to determine the question which was specifically left unconsidered by me, whether the lower appellate Court was justified in refusing the plaintiff-appellants the decree for which they asked on the ground that the plaintiffs' suit was not brought bona fide and that no declaration should be given to them in consequence.

(2.) THE learned Counsel for the respondents would uphold the decree on the same authorities as those given in the lower appellate Court, namely 5 Lah. 389 cited in the Court below as Dad v. Lal A.I.R. 1925 Lah. 24 and the decision of the Judicial Commissioner's Court in Gangabai v. Hansadas A.I.R. 1927 Nag. 213. The authority in Dad v. Lal A.I.R. 1925 Lah. 24 appears to me to have been doubted, although there was no express dissent, in Iqbal Singh v. Mahindar Singh A.I.R. 1938 Lah. 648, and the reasons which prompted the decision in Dad v. Lal A.I.R. 1925 Lah. 24 are not such as to afford a basis for a decision in the case I am now considering. In Dad v. Lal A.I.R. 1925 Lah. 24 the minor son of one of two joint brothers brought a declaratory suit contesting alienations by his father and by his uncle. These alienations were made without the plaintiff's consent. Now, in the Punjab the Mitakshara is interpreted as prohibiting the sale or mortgage of the undivided interest of any member of a coparcenary without the consent of the other coparceners, unless the sale or alienation be for legal necessity or for payment by a father for antecedent debts. Therefore as neither of these considerations arose in Dad v. Lal A.I.R. 1925 Lah. 24 the effect of the alienations being contested by a minor son would, if successful, have been to set aside the alienations altogether, and as was held in that case, the minor is merely a figure-head and the real plaintiff is the alienor himself who has caused the suit to he instituted for the purpose of undoing his own act. I am not here considering a suit to set aside the alienations or contesting the mortgages as such. The declaration asked for, and on which court-fees were paid for the necessary consequential reliefs, was that the mortgage was ineffective in so far as the minor sons' share alone was concerned. In the original suit on the mortgage the share of two of the three mortgagor-brothers alone was held liable as the third brother had not joined in the mortgage and it was found that there was no legal necessity. Now of two-thirds of the property mortgaged the plaintiffs seek relief in respect of one-third of that, that is to say, two-thirds of what would have been their father's share had he died childless. Four-ninths of the whole property still remains liable, and the plaintiffs seek to release their 2/9 share. The two mortgaging brothers had no claim at all to compromise the shares of the sons of one of them in mortgage; here again there was no question of legal necessity or payment of an antecedent debt but--and this is important--the sons can claim that to which they are entitled without causing their father to benefit by a suit brought by them even if it be with the father's advice and financial aid as, according to the Mitakshara as administered in these Provinces, a coparcener may mortgage his undivided interest in coparcenary property without the consent of his fellow coparceners provided that the alienation is for value. The minors therefore, one of whom had certainly attained majority before the suit was filed, are merely protecting their own interest and a decision in their favour in no way enables their father to retain his one-ninth share or their uncle Tanba to retain his one-third share. It is not clear from the judgment in Gangabai v. Hansadas A.I.R. 1927 Nag. 213 in what circumstances the alienation sought to be upset was to be declared invalid, and it appears to have been assumed that the benefit would go to the defendant, who was a relative of the plaintiff, and not to the plaintiff himself, and that indeed, as in Dad v. Lal A.I.R. 1925 Lah. 24, is the ratio decidendi. As I have already said, that would not be the case here, and the appeal must succeed and the plaintiffs given the relief which they seek, namely, a declaration that the mortgage is ineffective in so far as their share in the property mortgaged is concerned. They will of bourse be liable under the doctrine of pious obligation if, as the result of the sale which has been postponed pending the decision of this appeal, the sum realised is insufficient to cover the mortgage debt and if the mortgagees are entitled to a personal decree against the father. That however is a matter which cannot arise until the sale has been held. It may indeed be that the mortgagees are not entitled to a personal decree against the father, but that cannot affect the right of the sons to be held free of any liability under the mortgage qua mortgage.