MT ASHRAFUNISSA BEGAM Vs. SAHDEO PANDE

JUDGEMENT

(1.) This second appeal arises out of suit brought by the plaintiffs against their father, defendant second party, and the wife of a decree-holder against their father, for a declaration that a decree obtained by the husband of defendant 1 against their father on the basis of a deed of security, dated 18 January 1919, is void as against the plaintiffs. The plaintiffs lost the case in the trial Court, but were successful in the lower appellate Court. Hence this appeal. The plaintiffs and their father admittedly formed a joint Hindu family in comfortable circumstances. The father in addition to his own zamindari undertook the management of the zamindari belonging to defendant 1, and to secure his keeping correct accounts executed a mortgage-deed of his own joint family property. On this deed a decree was obtained. The sons pleaded that the joint family property was not liable under the security bond or under the decree obtained thereon.

(2.) The trial Court held that even if the family income was sufficient for the maintenance of the family, the extra income derived, namely Rs. 5 a month was for the benefit of the family and worth the risk incurred by hypothecating as security family property worth Rs. 500.

(3.) In appeal the Subordinate Judge held that as the family was in comfortable circumstances, it was unnecessary for defendant 2 to enter into service or risk the joint family property by a security bond to secure the faithful discharge of his duties. He remarked that if the joint family had consisted of the father and the sons only, he was inclined to the view that the ancestral property could be liable, because the sons were under a pious obligation to discharge their father's debt, but he found that there was an uncle of the plaintiff, who was also a member of the joint family, and this uncle was under no such pious obligation. Consequently as the plaintiffs, their father and their uncle were coparceners and not cosharers the security bond could not be enforced by selling the shares in the joint family property that would fall to the father and the sons on partition.