RAM KRISHNA DAS Vs. NIMAI BHAR

JUDGEMENT

(1.) This is a second appeal by the plaintiff in a suit to enforce a simple mortgage made by defendant-respondent 1 in favour of the plaintiff's predecessor-in-title, defendant-respondent 8. Defendants 2 and 3 are the sons of defendant 1, the mortgagor, and defendants 4 to 6 are his nephews. Defendant-respondent 7 was impleaded in the suit as a subsequent transferee, but the trial Court found that he was a prior transferee and the mortgage in favour of the plaintiff is subject to the rights of defendant-respondent 7. The mortgage-deed was for Rs. 125 and was executed on 29 March 1921. The plaintiff, appellant purchased the mortgagee rights of the original mortgagee, defendant 8, in execution of a decree on 10th July 1928. In para. 3 of the plaint the plaintiff alleged that defendants 1 to 6 are members of a joint Hindu family and defendant 1 is the head and manager of the aforesaid family. It was further alleged that the loan was taken and the bond in suit was executed by defendant 1 as head and manager of the joint family of defendants 1 to 6 for lawful family necessity and for the benefit of the family and that defendants 2 to 6 had also benefited by the loan and were liable to repay it.

(2.) The property mortgaged consists of a zamindari share in a village. The suit was brought on 28 March 1934 just within twelve years from the date the mortgage money became payable. Defendants 1 to 6 did not enter appearance. The suit was contested only by defendant 7. He denied execution of the mortgage bond in suit as well as its consideration. He further denied that it was executed for legal family necessity. Another plea raised by him in defence was that he had purchased in auction sale-the rights of a mortgagee in respect of a charge which was prior to that in favour of the plaintiff. On the pleas raised by defendant 7 the trial Court of the Munsif framed six issues one of which was whether the deed in suit was executed for legal necessity, and on this issue the Court found against the plaintiff and in the result dismissed the suit. The plaintiff thereafter appealed to the Civil Judge of Jaunpur, impleading defendant 7 also as a respondent, but on the day of hearing of the appeal exempted this defendant from the claim, admitting that he is a prior transferee. The lower Appellate Court then proceeded to decide the question whether the bond in suit was executed for legal necessity and after considering the evidence endorsed the finding of the trial Court that the appellant had failed to prove legal necessity and dismissed the appeal.

(3.) In second appeal before me it is contended on behalf of the plaintiff-appellant, that the mortgage-bond in suit being only voidable and none of the members of the family who were parties to the suit having appeared to contest the alienation on the ground that it was not for legal necessity, the Courts below were not required at all to enter into the question of legal necessity and should have decreed the entire claim. In support of this contention learned Counsel has relied upon the case in Jageshar Pande V/s. Deo Dat Pande (1924) 11 A.I.R. All. 51 in which it was held that an alienation of family property made by the manager of a joint Hindu family is not absolutely void. In that case the son who had a right to challenge an alienation by the father by way of gift had not challenged it during the father's lifetime and the question was whether the reversioner had a right to challenge it. The ratio decidendi of the ruling was that the interests of the plain, tiffs reversioners were in no way affected by the deed of gift when it took place and they had no right in the property during the lifetime of either the father or the son and it would be giving a great and unwarranted extension to the rights of reversioners to allow them the right to challenge an alienation under the circumstances found in that case. The case cited by learned Counsel for the appellant is not the only case in which a Division Bench of this Court has held that an alienation of family property made by a manager of a joint Hindu family is not absolutely void. The same view was taken in the later case in Madan Lal V/s. Gajendrapal Singh and the case in Madan Lal V/s. Chiddu . Sen and Niamat Ullah JJ. observed that: On the authorities of this Court, it must be accepted as settled that an alienation made by a member of a joint Hindu family is not void but voidable at the option of the other members thereof or any one of them....