INSPECTOR SINGH Vs. KHARAK SINGH

JUDGEMENT

(1.) The appellants before us were the plaintiffs in the suit out of which this appeal has arisen. The plaintiffs are two in number and are the sons of defendant 1 Kharak Singh. Defendant 1 made a simple mortgage of a portion of the ancestral joint family property in favour of the remaining defendants by a document dated 19 September 1921 for the sum of Rs. 7,000. The plaintiff's case was that their father was immoral and within three years of the death of their grandfather had squandered away a sum of Rs. 20,000 left in cash by the grandfather and had created charges to the amount of Rs. 20,000 on the family property. The plaintiffs sought a declaration that the mortgage of 19 September 1921 was executed for a purpose which was immoral and which did not benefit the family and that therefore the family property was not liable under the mortgage.

(2.) Defendant 1 did not enter an appearance. The other defendants who are father and sons, contended that the mortgage was executed in order to raise money to purchase a motor lorry, that the motor lorry was meant to be plied on hire between two stations in the district and that the transaction was meant "for the improvement of the business and benefit of the family" and that, therefore, the transaction was binding on the plaintiffs. It appears that in the Court below it was contended by the defendants that the property mortgaged was the exclusive property of defendant 1. In the bond itself it recited that the property hypothecated was the exclusive property of the executant, but this contention was given up at a later stage, and it is now common ground that the property hypothecated was the joint ancestral property of the father and the sons. On the issue as to how the mortgage was executed and whether the same was binding on the plaintiffs, the learned Subordinate Judge arrived at the following findings. He held that although it was true that the father, Kharak Singh, was given to drinking and was also in the habit of visiting prostitutes, the transaction could not be impeached upon the ground of immorality and that his intention was to supplement the income of the family property which amounted to about Rs. 1,600 a year, that in making such an attempt by running a motor lorry he was following the example of some others in the neighbourhood, that a part of the income from the hire earned by the lorry was spent for the maintenance of the family and that for all those reasons given the mortgage was binding on the plaintiffs.

(3.) It has been contended on behalf of the appellants that the learned Judge has taken an entirely erroneous view of the position of a Hindu father. It was said that a Hindu father's rights to interfere with the family property and to raise loans on the same were strictly limited and that, in any case, he could not hypothecate the family property in order to start a new venture, such as the plying of a motor lorry for hire. On behalf of the respondents, the creditors, it has been contended that the family property did not yield the sum of Rs. 1,600 a year as found by the learned Judge, that the income from the property was hardly sufficient for the maintenance and support of the family, that the father was acting within his rights and authority if he sought to supplement the family income by the new venture and that the Court below was right in upholding the mortgage. It being the fact that the learned Counsel for the respondents is prepared to challenge the finding of the learned Subordinate Judge as to the income from the landed property, it is necessary to arrive at a finding of fact on this point.