THAKUR LAL SINGH Vs. JAGRAJ SINGH

JUDGEMENT

(1.) This case gives rise to a question of some difficulty, which appears to be an open question so far as this Court is concerned, at any rate in recent years since the comparatively modern decisions of the Privy Council. The suit is brought by a minor to set aside a mortgage decree. Defendant 1 obtained a decree for sale on a mortgage executed by Bhagwant Singh and Imrat Singh, who are assumed for the purpose of this decision to have been, or to have represented, the two branches of a joint Hindu family. It is assumed that they were brothers, and that one of them was the karta. Imrat Singh died before the decree and his two sons became parties as his sons. Bhagwant Singh, being still alive, was also a party, but the minor son of Bhagwant Singh, namely Jagraj Singh, the present plaintiff, was not a party. There is no evidence that the mortgagee even knew of his existence. So far as I can understand the matter it is immaterial which of the two brothers was the karta at the time of the mortgage, or which defendant was acting as the karta at the time of the decree. When the karta, together with the other members of the joint family is sued, it must be taken that he enjoys the dual capacity which he enjoys in the family, that is to say, he is sued both as the karta representing the family and managing the family, and as a member of it, having an undivided interest,

(2.) The present plaintiff, who, as I have pointed out, was no party to the suit, has brought this suit for a declaration that the mortgaged property is not liable to be sold in execution of the decree on the ground that it was ancestral property of the family to which he belonged, and that there was no legal necessity for the loan for which the mortgage was given. The Subordinate Judge dismissed the suit on the ground that it did not lie in the absence of an allegation that the mortgage was made for a debt tainted with immorality. The District Judge overruled this decision and remanded the case as having been wrongly disposed of upon a preliminary point. The difference between the two learned Judges, which has been argued before us, centers round the following controversy: It is admitted that a mortgagee, in order to substantiate a suit upon his mortgage, has to prove that the debt was incurred for legal necessity. It is admitted, on the other hand, that if a decree has been obtained upon a mortgage by the mortgagee, or upon a simple money debt by a creditor, and as the result of either of these decrees the ancestral property has, by sale passed into the hands of a third party, the absent son or a minor son, who was not represented, cannot recover the property in the hands of a third person without alleging that the debt for which it was incurred was tainted with immorality or, in other words, without showing that the pious obligation of a Hindu son to discharge his father's debts does not apply to this transaction, because there is no pious obligation to pay debts tainted with immorality. But there is a stage midway between these two contingencies, what may be described as a tritium quid: what is the legal position of a son who was no party to the suit where the debt or legal obligation has passed into a decree but no execution proceedings have taken place upon the decree, and no part of the ancestral property has passed into the hands of a third person? A subsidiary branch of the same question arises very frequently in these Provinces where the mortgagee himself purchases at the sale, because in one sense the mortgagee adds the capacity of purchaser to that of decree-holder, although he is in fact the same individual.

(3.) The view of the Subordinate Judge is based upon two dicta of the Privy Council. It must be said, by the way, that these dicta are, if the expression may be used not precisely on the level of what is ordinarily intended to understood by the expression obiter dicta, but are expressions of opinion by the highest tribunal made with the intention and desire of providing guidance to the Courts in India. They must therefore be accepted as authorities binding upon the Courts in India for all practical purposes with the same force as a statute. The only question is whether they are properly understood, and to what circumstances they are intended to be applied. In the case of Sahu Ram Chandra V/s. Bhup Singh A.I.R. 1917 P.C. 61, Lord Shaw, who delivered the judgment of their Lordships, said as follows: A perusal of the numerous authorities will show that where a joint family property has been sold out and out, or where a decree in execution of the mortgage has been obtained against the property, and rights have thus sprung up with regard to the joint family estate these rights are not to be defeated by the members by the joint family simply questioning the transaction entered into by its head.