VADILAL PURSHOTTAM Vs. KANAIALAL INDERLAL

JUDGEMENT

(1.) The question in this suit relates to the right, title, and interest, if any, of defendant No. 1, Kanaialal, minor, and his mother and guardian defendant No. 2, Laxmibai, in respect of certain property mortgaged by defendant No. Ps grand father Nandlal to the plaintiff, on which the latter obtained a decree, and which was sold and purchased in execution by the plaintiff. mortgagee decree-holder,

(2.) [His Lordship, after narrating the facts, proceeded :] It is admitted by both sides that the real question in this suit is whether, the right, title and interest of defendant No. 1 has or has not passed to the plaintiff by his purchase. It is argued for the plaintiff, firstly, that the mortgage in his favour was executed for an antecedent debt due to Maganlal and to Uderam and that Nandlal was therefore competent to mortgage defendant No. 1's interest along with his own to the plaintiff, and, secondly, that he had actually done so and the interest of defendant No. 1 has passed to the plaintiffs in consequence of their legal proceedings above. It is further argued that even if the antecedent debt was not a joint family trading debt, under the Hindu law as laid down by their Lordships of the Privy Council, as in Brij Narain V/s. Mangla Prasad (1923) L.R. 51 I.A. 129, s.c. 26 Bom. L.R. 500, defendant No. 1 has no interest left and that his grand-father could and did alienate in favour of the plaintiffs. For the defendants it is argued that there is no evidence to show that the debts were incurred for a joint family business, much less, an ancestral joint family trading business, and that the question is not, whether Nandlal had or had not the power to alienate the interest of defendant No. 1, but, whether he actually did so, and that, in any case, defendant No. 1 not having been a party to the mortgage, or the suit, or the proceedings in execution, his interest has not passed, These proceedings moreover had been against Nandlal individually and nob as manager of the joint family, and reliance is placed on the cases quoted at p. 848 of Mulla's Civil Procedure Code (8 Ed.). The plaintiff relies on the view of the law laid down in Suraj Bunsi Koer V/s. Sheo Proshad Singh (1878-9) L.R. 6 I.A. 88, 106 and Doulut Ram V/s. Mehr Chand (1887) L.R. 14 I.A. 187. As regards defendant No. 2, it is contended, that she is not a necessary party because although in her first letter of August 14, 1925, she claimed that she had been in possession, there are subsequent letters of September 16, 1925, in which it is asserted that defendant No. 1 alone was in possession.

(3.) Dealing with the question as regards defendant No. 1, in the first instance, it is necessary to state clearly the facts as they appear to me to which the law has to be applied. In the case of a document such as the mortgage now in question, there are three possible cases which may arise. Firstly, those where the interest of a coparcener is expressly included or excluded. Secondly, those where it is neither explicitly included or excluded. Thirdly, those where there is no mention of the property being joint family property, or of the existence of any coparcener at all other than the executing party.