SHIVLAL GULABCHAND Vs. TANIRAM SADASHIV

JUDGEMENT

(1.) The appellant-plaintiff in this case sued to recover a certain sum on a. simple mortgage bond dated December 11, 1917. The mortgage bond is executed by defendants Nos. 1, 2 and Section The defendants Nos. 1 to 8 are sued as members of a joint undivided family, defendants Nob, 1 to 6 being the sons of one Sadashiv, defendant No. 7 as grandson of one Lotan, who was a brother of Sadashiv, and defendant No. 8 a son of another brother of Sadashiv, one Ananda. The appellant's case was that defendants Nos. 1 to 8 were jointly interested in a family shop carried on in the name of Sadashiv Narayan Shimpe. Defendants Nos. 9 and 10 are auction purchasers of the two survey numbers, the subject-matter of the mortgage bond, being purchasers at an auction sale held in execution of a certain decree. The learned Judge held that the mortgage bond was not binding on defendants Nos. 4, 6, 7 and 8, defendant No. 5 being dead. The learned Judge also held that the claim of the plaintiff which he decreed held good against the two properties to the extent only of the shares of defendants Nos. 1 and 3 therein, Against this decree, the plaintiff has appealed and defendants Nos. 9 and 10 have filed cross-objections, The contention of defendants Nos. 9 and 10 is that the plaintiff's mortgage is void as against them and the shares of defendants Nos. 1 and 3, which form part of the sale to defendants Nos. 9 and 10, are not subject to the plaintiff's mortgage.

(2.) The respondents other than defendants Nos. 9 and 10 have not appeared, Mr. Nadkarni on behalf of defendants Nos. 9 and 10 does not contend that defendants Nos. 1 to 8 are not members of a joint family. He contends that defendants Nos. 1, 2 and 3 were in possession of the properties, the subject-matter of the mortgage as adult members of the family, the other defendants at the time were minors and the plaintiff has failed to show that there was any legal necessity for the mortgage. The ground taken by Mr. Nadkarni is not the same as the ground taken by the learned Judge, The learned Judge held that on the evidence before him he did not believe the plaintiff's gumasta, Gangaram Nago, that defendants Nos. 1 to 8 were joint on the date of the bond. The learned Judge was of opinion that there was no other evidence worthy of consideration on the point. We find, however, that in addition to the deposition of Gangaram Nago there is considerable evidence on the record to show that there existed about this time a family shop in which defendants Nos. 1 to 8 were interested. The shop dealt in cloth from the year 1908. There is evidence of certain dealings between the plaintiff and this shop. Several promissory notes were passed from time to time by the predecessors in interest of the defendants and by some of the defendants to the plaintiff in respect of the indebtedness of the shop to the plaintiff for goods supplied or moneys advanced. The mortgage bo December, 11, 1917, is in respect of such indebtedness. Where a family shop is being carried on for the benefit of a joint family, the powers of the adult members in charge of such shop to borrow money for purposes of the business and mortgage family properties to secure repayment of such money, are clearly very wide, as was laid down by this Court in Raghunathji Tarachand V/s. The Bank of Bombay (1909) I.L.R. 34 Bom. 72, s.c. 11 Bom. L.R. 255. Chandavarkar J. remarks (p. 78): The rule of Hindu law that debts contracted by a managing member of a joint family are binding on the other members only when they are for a family purpose, is subject to at least one important exception...where a family carries on a business or profession, and maintains itself by means of it, the member who manages it for the family has an implied authority to contract debts for its purposes, and the creditor is not bound to inquire into the purpose of the debt to bind the whole family thereby, because that power is necessary for the very existence of the family. The evidence shows that defendants Nos. 9 and 10 filed suits and obtained decrees against the representatives of the three branches of Sadashiv, Lotan and Ananda as members of a joint family in respect of their respective business dealings with the shop. From a consideration of these points, the finding of the lower Court that the remaining defendants Nos. 4, 6, 7 and 8 are not liable to the plaintiff appears to me to be incorrect, In my opinion they would be so liable a members of a joint family to the extent of their interest in the joint family properties.

(3.) With regard to the contentions of defendants Nos. 9 and 10, it appears that defendant No. 9 had filed a suit against the members of the joint family in June 1916 being Suit No. 287 of 1916. On July 12, 1916, he obtained an order in that suit for attachment before judgment. That order was made absolute on March 1, 1917. On July 21, 1917, the suit was decreed ex parte against some of the defendants in that suit and a consent decree was taken between the plaintiff" and the defendants who appeared at the hearing. By the consent decree the decretal amount was made payable by instalments and in the meanwhile a charge was created on the properties, the subject-matter of the attachment before judgment. There is nothing in the decree to indicate that the attachment before judgment was raised. Defendant No. 10 had also filed a suit against the joint family about the same time being Suit No. 324 of 1916, On August 1, 1916, he obtained an order in the suit for attachment before judgment of properties belonging to the joint family including the properties in suit. That order was made absolute on July 9, 1917. The claim of defendant No. 10 was decreed on July 11, 1917, ex parte against some of the defendants who did not appear and a consent decree wai9 taken between him and the other defendants who appeared. The mortgage bond in the suit was executed on December 11, 1917, which is subsequent to the dates of the two orders of attachments and the two decrees obtained in the two suits. The properties were sold in execution proceedings in Suit No. 287 of 1916, one survey number being purchased by defendant No. 9 other survey number being purchased by defendant No. 10. In the proclamation of sale the fact that there was a mortgage on these properties in favour of the appellant was mentioned. The appellant was served with a notice of the proposed sale. The property sold in the execution proceedings, however, was not the equity of redemption to which the members of the joint family would be entitled subject to the mortgage, but was the property itself. It does not appear from the record that the executing Court held any enquiry into the mortgagee's claim or decided that the attachment was subject to the mortgage. It is contended on behalf of defendants Nos. 9 and 10 that at the date of this sale, the original attachment before judgment of July 12, 1916, was still subsisting and the mortgage bond was executed during the subsistence of the attachment. If that contention is correct the alienation of the property by means of the mortgage bond dated December 11, 1917, would b? void against any interest claimed under the attachment. The case of Ganu Singh V/s. Jangi Lal (1899) I.L.R. 26 Cal. 531 is an authority for that proposition. It is there laid down that the effect of an attachment of a property under the Civil Procedure Code, whether made before or after decree, is the same, provided that in the former case a decree is made for the plaintiff at whose instance the attachment takes place. Mr. Pradhan has argued that the attachment before judgment must be deemed to be merged in the decree. He contends that defendants Nos. 9 and 10 by their respective decrees have chosen to substitute for the attachment, a charge on the properties and the fact of the mortgage claim being mentioned in the proclamation of sale is tantamount to the sale having taken place subject to the mortgage claim, Under Order XXXVIII, V/s. 9, of the Civil Procedure Code, it appears that where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed. Under Rule 11, where property is under attachment by virtue of the provisions of Order XXXVIII, and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property. In the absence of a specific order by the Court raising the attachment before jndgment, and in the absence of a definite statement in the decree that the attachment before judgment was being abandoned by the plaintiff, we must take it that the attachment continued. In that view of the case the alienation of the property on December 11, 1917, by means of the mortgage bond would be void against defendants Nos. 9 and 10 under Section 64 of the Civil Procedure Code. Mr. Pradhan has argued that the mention of the mortgage in the proclamation of sale debars defendants Nos. 9 and 10 from contending that they have not purchased the property subject to the mortgage In Roshan Lal V/s. Lallu (1922) I.L.R. 44 All. 714 a similar contention was raised but overruled. The facts in that case were very similar to those with which we have here to deal, I respectfully agree with the ruling of the Allahabad High Court that the notification of the mortgage at the time of the sale does not prevent the auction purchasers from disputing its validity.