PROFULLA CHANDRA SINHA Vs. BISSESWAR SINHA

JUDGEMENT

(1.) This is a claim on behalf of Profulla Chandra Sinha and Madhusudan Singh, two minor members of a Mitakshara joint Hindu family for a declaration that a mortgage of the joint estate by the other members of the family, including the fathers of the plaintiffs is not binding on them, and for other reliefs. The following pedigree will help to elucidate the facts:

(2.) The defendants, other than the mortgagee, Surendra Nath Mitra, have not filed any written statements, or contested the suit or appeared at the hearing. The estate consists of the family dwelling house in Calcutta and property at Puri. The following facts are to be gathered from the documents and statements made therein by the Singh defendants. In 1910 Bisseswar, Brojeswar, Sidheswar, Radha Mohan and Probodh in their personal capacities and Bisseswar as head and Manager of the joint family, which included also Jogeswar and Khetra Mohan, who were then minors, mortgaged the family dwelling house in favour of one N. C. Ball to secure a loan of Rs. 2000 borrowed in order to "liquidate certain joint family debts and to preserve certain joint family properties at Puri". At this time, the plaintiffs were not born. In February 1915, the adult members of the family mortgaged the same property in favour of Sreemutty Charusila Dassi to secure a loan of Rs. 2500 borrowed in order to pay off a balance of Rs. 1086 then owing to Dull who was pressing for payment, and to meet certain joint family expenses. In June 1915, they mortgaged the same property in favour of P.C. Mitter to secure a loan of Rs. 3000 borrowed in order to pay off the last mentioned loan, which they were unable otherwise to pay In 1918, Bisseswar, Brojeswar, Sidheswar, Jogeswar, Radhamohan, Khetra Mohan and Probodh mortgaged the same property in favour of N. C. Kundu to secure a loan of Rs. 3500 borrowed in order to pay off Mitter's loan, who was pressing for payment. In 1919 Brojeswar died. In 1921, Sidheswar, Jogeswar, Radhamohan, Khetra Mohan and Probodh gave a power of attorney to Bisseswar to act for them in the management of all the family property, including power to sell or mortgage it.

(3.) In 1924, Bisseswar, Sidheswar, Jogeswar, Radha Mohan, Khetra Mohan and Probodh, in their personal capacities, and Bisseswar, as the Karta or managing member of the joint family consisting of the above adult members and Profulla, the minor son of Probodh, mortgaged the family dwelling house in favour of K.C. Shah, E.L. Shah and Sreemutty Priyabala Dassi to secure a loan of Rs. 10,000 borrowed in order to repay the sum of Rs. 5345 then owing in respect of Mitter's mortgage and to pay off "joint family debts and necessary expenses" including a sum of Rs. 5500 being the balance of Rs. 8000 spent in 1923 upon the repairs of the family dwelling house, which had fallen into a "very bad state of repairs" and of which thorough repair had "became absolutely necessary for the preservation of the said property". In October 1926, Bisseswar, Sidheswar, Jogeswar, Radha Mohan and Khetra Mohan mortgaged their 2/3rds share in the family dwelling house, free from encumbrances save and except the Shah mortgage in favour of P.C. Mazumdar to secure a loan of Rs. 1000. In November 1926, Sidheswar and Bisseswar executed a promissory note in favour of J. N. Das for Rs. 3200 being an amount due for jewellery and ornaments supplied to Sidheswar: subsequently Das instituted a suit and a decree was passed for Rs. 3278. Later there was an attachment, and the matter was settled upon terms inter alia, that Sidheswar and Bisseswar charged their 2/9 share in the family dwelling house in favour of Das to secure the debt, and a receiver was appointed. In December 1926 Bisseswar for self and as authorized agent for Sidheswar, Jogeswar, Probodh, Radha Mohan and Khetra Mohan mortgaged the family property at Puri in favour of the defendant S. N. Mitter, to secure a loan of Rs. 4000 borrowed in order to satisfy the debt due to Das "and other petty debts". In 1928, Bisseswar for self and as attorney of Sidheswar, Jogeswar, Radha Mohan, Khetra Mohan and Probodh executed a promissory note in favour of S. N. Mitter for Rs. 5000. On 4 September 1929, Bisseswar for self and as authorized agent of Sidheswar, Jogeswar, Probodh, Radha Mohan and Khetra Mohan, members of a joint Hindu Mitakshara family, mortgaged the whole family estate, both at Calcutta and at Puri, in favour of S. N. Mitter to secure a loan of Rs. 28,995 borrowed in order to liquidate the following debts and for household expenses: