MATA PRASAD Vs. CHANDRADEO SINGH; SHEO BABU SINGH

JUDGEMENT

(1.) This second appeal was directed to be laid before a Full Bench in consequence of a conflict in the decisions of this and the other High Courts upon the man question involved in it. The suit is one to enforce payment of a mortgage by sale of the mortgaged property. The mortgage was executed by the late Ram Narain Singh, who was the head of the defendants family on the 4 of September 1883 to secure a principal sum of Rs. 400 in favour of Ram Narain Kalwar, the father of the plaintiff respondent Sheo Babu Singh and the grandfather of the appellant Chanderdeo Singh. The parties are governed by the law of the Mitakshara. It was found by the Court of first instance that the mortgage was not executed for the purpose of satisfying any antecedent debt and there was no evidence that the consideration was required for the legal necessities of the family, or that the lender made any inquiry as to the purposes for which the money was borrowed. On the other hand it was not proved, or even alleged, that the debt was tainted with immorality. On these findings the court mainly relying on the decision in the case of Debi Dat V/s. Jadu Mal (1902) I.L.R. 24 All. 459 decreed the plaintiffs claim. Upon appeal this decision was upheld by the learned officiating District Judge. He held that the money advanced to the mortgagor could not be said to have been applied to the discharge of any antecedent debt, but at the same time that the debt was not tainted with immorality and consequently the appeal was without any force. A second appeal was preferred, the first ground of appeal being that the mortgage not being one for the payment of an antecedent debt, nor for family necessity, was not binding on the appellants. There is a second ground of appeal, namely, that the claim of the plaintiffs so far as it is based on the poius duty of sons to pay their fathers debt is barred by time. In view of the pious obligation of Hindu sons in a Mitakshara family to pay their father's debts, the learned Counsel for the appellants did not for a moment contend that this pious duty did not lie upon his clients. He admitted that they were so liable, but he contended that the mortgage of the 4 of September 1883, not having been made to satisfy an antecedent debt, or for family necessities, was not binding upon the appellants. The sole question then for the court is whether a father of a Hindu family governed by the Mitakshara law, can execute a mortgage which will be binding upon his sons where the loan is not obtained for family necessity or to meet an antecedent debt.

(2.) The rule of the Mitakshara is to be found in Chapter I, Section 1, Clause 27. Clause 27 runs as follows: Therefore it is a settled point that property in the paternal or ancestral estate is by birth, although the father has independent power in the disposal of effects other than immovables for indispensable acts of duty and for purposes prescribed by text of law, as gifts through affection, support of the family, relief from distress, and so forth but he is subject to the control of his sons and the rest, in regard to the immovable estate, whether acquired by himself or inherited from his father, or other predecessor; since it is ordained though immovable or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They who are born, and they who are yet unbegotten and they who are yet still in the womb require the means of support, no gift or sale should therefore be made," and then follows in Clause 28 an exception to this rule. It runs as follows: "Even a single individual may conclude a donation, mortgage, or sale, of immovable property, during a season of distress for the sake of the family, and especially for pious purposes." This means, I take it that a donation, mortgage or sale cannot be made except for the purposes named or one of them. This is the foundation of all the decisions governing the competency of a Hindu father in a family governed by the Mitakshara to dispose of the joint property of the family. He can dispose of it during a season of distress, for the sake of the family or for pious purpose.

(3.) Until recently the decision of this High Court in the case of Jamna V/s. Nain Sukh (1887) I.L.R. 9 All. 493 was regarded as a binding ruling. In that case Sir John Edge, C.J., and Mahmood, J., held that as a general rule a creditor endeavouring to enforce his claim under an hypothecation bond given by a Hindu father against the estate of a joint Hindu family in respect of money lent or advanced to the father, should prove either that the money was obtained by the father for a legal necessity, or that he (the creditor) made such responsible enquiries as would satisfy a prudent man that to loan was contracted to pay off an antecedent debt or for the other legal necessities of the family. In that case in a suit against the members of a joint Hindu family upon a bond given by their father by which family property was hypothecated no evidence was given on either side, as here, as to the circumstances under which the bond was given. It was held that the burden of proof lay upon the plaintiff to show that either the money, was obtained for legal necessity or that he had made reasonable inquiries and had obtained such information as would satisfy a prudent man that the loan was contracted to pay off an antecedent debt or for the other legal necessities of the family.