RAMKARAN THAKUR Vs. BALDEO THAKUR

JUDGEMENT

(1.) This appeal is by the plaintiffs who brought an action on a mortgage, dated 23 December 1921.

(2.) The questions which arise in the appeal are these: whether the mortgage was executed for the benefit of the joint family; whether in the circumstances of the case the consideration was an antecedent debt; and farther, in the alternative, whether the plaintiffs failing upon the earlier points are entitled to obtain a money decree which question will depend very largely on whether the learned Judge in the Court below ought to have allowed the amendment in the circumstance to which I shall in a moment refer. So or as the first point is concerned, it seems to admit of only one answer.

(3.) The learned Judge in the Court below has pointed out that the sudbharna property which was acquired by the money raised on the mortgage in suit was only valued at Rs. 60 less certain charges, that the liability under the mortgage was in excess of that amount, and on that footing he has come to the conclusion that it was a fact that the transaction could not benefit the joint family of which the defendants were members. The question of what is a benefit to the estate within the meaning of the rule of Hindu law was discussed by Lord Atkinson delivering the opinion of their Lordships of the Judicial Committee of the Privy Council in Palaniappa V/s. Devasikamony A.I.R.1917. P.C. 33 more particularly at p. 155 where Lord Atkinson states: No indication la to be found in any of them (i.e. the authorities cited) as to what is, in this connection, the precise nature of the things to be inducted under the description benefit to the estate . It is impossible, their Lordships think, to give a precise definition of it applicable to all cases, and they do not attempt to do so. The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things would obviously be benefits.