CHHOTEY LAL CHAUDHURY Vs. DALIP NARAIN SING

JUDGEMENT

(1.) This second appeal raises the question as to the liability of the members of a joint Hindu family on a mortgage executed by some of the senior members of the family for the purpose of financing a venture initiated by the karta.

(2.) The facts were as follows : A tikka was executed in favour of Rasiklal, defendant 1, and his cousin Ajodhya, the father of defendant 6. These two individuals were the senior members of a joint Hindu family. No salami was paid for the tikka which was for a term of nine years at a rental of Rs. 700 per annum. As security for payment of the rent a mortgage in favour of the lessor was executed by Rasiklal and Ajodhya and the latter's brother, Babulal, defendant 2 (father of defendant 7). They having defaulted in the payment of the tikka rent, the lessor instituted a suit on his mortgage which resulted in a decree for Rs. 2981. The executants of the mortgage and their sons were all impleaded in the mortgage suit. In execution of the mortgage decree, the mortgaged property was purchased by the plaintiffs. The mortgaged property consisted of two plots of land constituting the ancestral property of the family. These two plots were Nos. 164 and 166. Formal delivery of possession was given to the auction-purchaser but when he attempted to take actual possession he was obstructed by Chhotey Lal, the brother of Ajodhya and Babulal, two of the mortgagors. This resulted in a proceeding under Section 145, Criminal P.C., which was decided against the auction-purchaser with the result that he instituted the present suit for possession. The suit has been decreed by both the Courts below.

(3.) In appeal by the defendants it is contended on the authority of the decision of the Privy Council in Benares Bank Ltd. V/s. Hari Narain that Rasiklal and Ajodhya had no authority to take the tikka lease and that the members of the family, other than the executants of the mortgage, are not bound by the bond which was executed to secure the rent of the tikka. The particular passage in the judgment of their Lordships of the Privy Council on which reliance is placed is as follows: The power of the manager of a joint family governed by the Mitakshara law to alienate immovable property belonging to the family is defined in verses 27 to 29 of Chap. 1 of the Mitak-shara. The judgment of the Board in Hunooman Persaud Panday V/s. Mt. Babooee Munraj Koonweree (1854-57) 6 M.I.A. 393, relied on by the Bank, was founded apparently on those verses. A new business, their Lordships think, is not within the purview of those verses. It does not make any difference that the manager starting the new business is the father.