NAGRAJ Vs. GANPAT

JUDGEMENT

(1.) JACKSON , A.J.C. 1. This appeal arises from a suit to enforce a mortgage deed executed on 16th December 1924 by Ganpat and Soma, defendants-respondents 1 and 2, who are the fathers of defendants 3 to 6. Ganpat and Soma and their father, Januji, separated and divided between them the joint family property, Survey No. 130 of mouza Talegaon Dashasahasra. Ganpat took S. No. 130/1, Soma S. No. 130/2 and Januji S. No. 130/3. After the death of Januji, Ganpat and Soma bought S. No. 130/3 from their stepmother for Rs. 3,500; and in order to pay the consideration, they mortgaged all three sub-numbers of S. No. 130 for Rs. 3,600 to the plaintiff, the balance of Rs. 100 being required for expenses in connexion with the sale. In the suit, out of which this appeal arises, brought to recover the mortgaee debt, it was pleaded successfully by the sons of Ganpat and Soma that the mortgage was not for "legal necessity" or for "benefit of the estate" and a decree has been passed which exempts from liability the shares of defendants 3 to 6 in S. Nos. 130/1 and 130/2. The plaintiff has come in appeal to have it declared that the mortgage was for benefit of the estate and that the whole of the property mortgaged is liable for the debt.

(2.) IT is admitted that there was no actual necessity, but it is pleaded that "the mortgage was in fact for a purpose that benefitted the family. It has been held in a number of cases that any act for which the character of "legal necessity" or of "benefit to the estate" can be claimed must be an act of a defensive nature. This view has been taken in Shankar Sahai v. Bechu Ram . Inspector Singh v. Kharak Singh , Kishen Sahai v. Raghunath Singh and Totaram Ragho v. Zaga Ekoba A.I.R. 1929 Bom. 251. In Jagat Narain v. Mathura Das A.I.R. 1928 All. 454, however, it has been held that transactions justifiable on the principle of "benefit to the estate" are not limited to those transactions which are of a defensive nature.

(3.) THE conclusions drawn by the Full Bench of the Allahabad High Court are that the instances of benefit given in Palaniappa Chetty v. Devasikamony Pandara Sannadhi A.I.R. 1917 P.C. 33 have wrongly led to the view being taken, first, in Bhagwan Das Naik v. Mahadeo Prasad Pal A.I.R. 1923 All. 298 and then in subsequent cases, that all acts to be regarded as for the benefit of the estate must be acts of a defensive nature and that their Lordships of the Privy Council do not intend to limit the meaning of the term "benefit to the estate" by the fact that the instances that they gave were all of a defensive nature. It was held that the wording used in Hanooman Pershad Panday v. Babooee Munraj Koonweree 1854 6 M.I.A. 393 permitted a wider meaning being given to that term. It is to be noted in this connexion that rulings which take a different view lay down the rule, that the act must be of a defensive nature, merely as the ordinary rule and thus recogniza that there may be exceptional cases.