KISHUN PERSHAD CHOWDHRY Vs. TIPAN PERSHAD SINGH

JUDGEMENT

(1.) On the 10 March 1897, the first defendant, respondent, executed in favour of the plaintiffs, appellants, a mortgage bond for Rs. 5,000. On the 13 October 1897, he executed two other mortgage bonds in favour of the plaintiffs for Rs. 2,500 and Rs. 3,000 respectively. On the 3 August 1903, the plaintiffs commenced the action out of which this appeal arises, to enforce these three securities. They joined as parties defendants not only their mortgagor but also his infant son, the second defendant, as the property in question belonged to a joint Hindu family governed by the Mitakshara law, of which the first defendant and his son were members. The claim was resisted by both the defendants. The Subordinate Judge found upon the evidence, first that the mortgage bonds propounded by the plaintiffs were genuine and for consideration, secondly, that the plaintiffs had failed to prove that there was any legal necessity for the loans or to show that they made any enquiry as to the purpose for which the loans were contracted and thirdly, that the son had failed to establish that the debts were, as alleged by him, contracted by his father for illegal and immoral purposes. On these findings, the Court below held that the case was covered completely by the decision of a Full Bench of this Court in the case of Luchmun Dass V/s. Giridhur Chowdhry (1880) I.L.R. 5 Calc. 855 and made a decree which entitled the plaintiffs, to raise out of the family properties of the defendants including the mortgaged properties, the amount decreed in their favour. The Subordinate Judge, however, refused to make a decree on the footing of the mortgage.

(2.) The plaintiffs have appealed to this Court, and on their behalf the decision of the Subordinate Judge has been challenged substantially on two grounds; namely, first, that the effect of the decision of the Full Bench in the case of Luchmun Dass V/s. Giridhur Chowdhry (1880) I.L.R. 5 Calc. 855 has not been rightly appreciated by the Court below, and, secondly, that the decision of the Full Bench is no longer binding upon this Court in the view of later decisions of their Lordships of the Judicial Committee. No attempt has been made to assail the, findings of fact at which the Court below arrived, and, upon an examination of the evidence) we are satisfied that, even if such an endeavour had been made, it could, not possibly succeed.

(3.) In support of the first branch of his contention, it has been argued by the learned vakil for the appellants that, upon a true construction of the decision of the Full Bench upon which the judgment of the Subordinate Judge is founded, the plaintiffs are entitled to a mortgage-decree against the share of the mortgagor in the ancestral properties covered by the mortgage securities. After a careful examination of the judgments of the Full Bench and of later cases, in which that decision has been explained we are of opinion that this contention is well founded. The first question, which was referred to the Full Bench for decision, was as follows: In the case of a Mitakshara family consisting of a father and one minor son where the father being the manager raises money by hypothecating certain ancestral family property by bonds, and it is not proved on the one hand that there was any legal necessity for his raising the money, nor on the other, that the money was raised or expended for immoral or illegal purposes, or that the lender made any inquiry as to the purpose for which it was required, can the lender, the mortgagee enforce by suit against the father and the son the payment of his money by sale of the property during the father's lifetime.