Awadhesh Kumar vs Sheo Shanker and Others

M. Wahajuddin, J.—The plaintiff-appellant brought a suit for cancellation of the mortgage-deed dated 29-1-1978 and sale-deed dated 29-1-1971 executed by Bhaiya Lal, defendant No. 3, father of the plaintiff in favour of defendants Nos. 2 and 1 respectively.

The suit was based on the allegations that Bhaiya Lal had an ancestral house in which plaintiff had interest as a member of Hindu Joint Family and the house was sold by Bhaiya Lal in the year 1962 for a sum of Rs. 5,800/-, According to the plaintiff the house covered under the aforesaid mortgage and sale-deed, was constructed with the sale proceeds of the sale of the ancestral house in question and was thus a joint family property. It is farther alleged that Bhaiya Lal became a Sanyasi in 1965 (as to die a civil death) and the mortgage deed was executed in Lotan''s favour for a sum of Rs. 2,000/-, later and the sate was in favour of defendant No. 1 for a sum of Rs. 6,000/- also thereafter both collusively and secretly when the plaintiff was minor. A prayer for declaring the two deeds void was also made.

The defendant-respondent maintained that the house in dispute was a self acquired property of Bhaiya Lal from his own earnings and was not constructed out of the sale proceeds of a previous house. According to the contesting respondent, the mortgage and sale both were binding, the money having been required by Bhaiya Lal for carrying of his business. It was further alleged that defendant No. 1 filed suit No. 118 of 1971 for redemption of the mortgage and in that Bhaiya Lal and Lotan filed joint written statement and having no hope of success, later this suit has been maneuvered. Lotan defendant No. 2 while taking a stand that Bhaiya Lal was the sole owner of the house maintained that. Actually the alleged mortgage was a conditional sale in his favour out right and he thus disputed the claim of defendant No. 1 under the sale-deed in suit. On issue Nos. 5, 6 and 7, the finding is in favour of the plaintiff, they concerned Court Fee, Limitation and estoppel. On issue No, 1, the lower court held that Bhaiya Lal did not become a Sanyasi renouncing the world. On issue No. 2 he found that the house was not constructed out of the nucleus of the joint Hindu family-fond. On issue No. 3, the finding is that Bhaiya Lal validly sold the equity of redemption in favour of defendant No. 1, the vendee for payment of antecedent debt under the mortgage-deed. On issue No. 4 it found that the mortgage-deed was valid. The trial court, on such findings, dismissed the suit.

All the aforesaid findings of the trial court against the plaintiff have been challenged in the grounds of appeal, maintaining that Bhaiya Lal had become Sanyasi and had renounced the world, the disputed property was acquired out of the sale proceeds of the ancestral house and the mortgage-deed and the sale-deed are exclusive and not binding upon the plaintiff.

The first point that arises for determination in this appeal is whether Bhaiya Lal renounced the world by becoming a Sanyasi in the year 1965. The oral evidence led by the plaintiff in support of the allegations consist of the statement of 5 PWs, namely, Swami Anant Prakash Guru, PW 1, Ayodhya Prasad, PW 3 and Laxmi Narain, PW 2, a neighbour in that village, Chunni Lal, Brother of Bhaiya Lal PW 4 and the plaintiff himself, PW 5. Out of them Laxmi Narain and Chunni Lal and plaintiff have given a general statement that Bhaiya Lal had become a Sanyasi. They were not present when the Sanyas is said to have taken place nor they witnessed any ceremony. Their evidence is simply of a general nature as such the witnesses who claimed to have actually seen the taking of Sanyas by Bhaiya Lal is his Guru who deposed about the actual renunciation by performance of rite and one Ayodhya Prasad, PW 3 claimed to have been present. So far as Ayodhya Prasad PW 3 is concerned, he stated that Bhaiya Lal took Sanyas in 1965. In cross-examination he deposed that he was proceeding to Anusuiyaji when he saw Bhaiya Lal taking Sanyas in Sirsavan. A good number of people had assembled. He could not tell bow many other persons took Sanyas on that occasion. He, however, made a very interesting statement that the Sanyasi Baba on whose hands Sanyas was taken, Was called as Chukarahi Baba and some other called as Muriya Baba Swami Anand Prakash is neither.

6 Ayodhya Prasad, PW 3 apart from being a chance witness has also given a very unsatisfactory account of himself and his evidence has been rightly rejected. As observed earlier the only witness of taking of Sanyas and its ceremonies is Anand Prakash PW 1 and the three witnesses were not present when the alleged Sanyas was taken and they have simply given a general statement as such based on their own inference. I may also mention that two of them, namely, Chunni Lal is the uncle of the plaintiff and PW 5 is the plaintiff himself and, thus, highly interested witnesses. The finding of the fact of the lower court is that it is not proved that Bhaiya Lal renounced the world according to the conception of Hindu Law. It will be desirable at this stage to refer to the principles of law as laid down in various pronouncements. 1 may at the very outset observe that there are direct pronouncements of this Court. It is those pronouncements and the pronouncements of the Supreme Court which will be relevant. The Division Bench pronouncement is Baldeo Prasad Vs. Arya Priti Nidhi Sabha and Others . In this case reliance has been placed on pronouncements of other High Courts while dealing with reasoning. The Court held that the principles and ceremonies for taking Sanyas are the same for Sanatan Dharmis and Arya Samajist both. The following observations made by the Division Bench the page 644 are Important:

It cannot be doubted that the mere fact that a person declared that he has become a Sanyasi or that he is described as such or wears clothes ordinarily worn by the Sanyasis would not be sufficient to make him a perfect Sanyasi. It is essential that he must enter into the fourth stage of his life in accordance with the necessary requirements. He must not only retire from all worldly interests and become dead to the world, but to attain this he must perform the necessary ceremonies without which the denunciation will not be complete.

It is noteworthy that while making these observations a reference has also been made to Mayhe''s Hindu Law Edn. 9 page 367.

The learned Counsel for the Appellant relied upon a single Judge pronouncement of this Court reported in Krishna Singh Vs. Mathura Ahir and Others, . It is noteworthy that in the case of Baldeo Prasad (supra), it was laid down in express terms that mere wearing of certain dress and presenting as Sanyasi Or oral statement to the effect is not sufficient and actually it has to be proved that requisite ceremonies were performed. It is noteworthy that human ceremonies and performance of Prajapathiyesthi yagoa was ''considered to be necessary as some of the ceremonies for renunciation of the world. In the case of Krishna Sing (supra) which is a single Judge pronouncement, the aforesaid Division, Bench case of Baldeo Prasad (supra) as well as a number of other pronouncements of diffe''reat High Courts were cited and it was then observed that a reading of the judgments in the above noted cases will show that various observations In regard to performance of prajapathiyesthi, Viraja homan etc. were made with reference to particular sects or categories of Sanyasis. it would, however, be found in the case of BaldeoPrasad (supra) the observations and the law laid awn were not on considerations of any particular sect. On the contrary what was held was that like others for Arya Samajists also the various ceremonies are required. However, the matters mvolved in the case of Krishna Singh (supra), ultimately came for consideration by the Supreme Court in Krtsina Singh v. Mathura Ahir AIR 1980 SC 707. it is noteworthy that the facts of that case are distinguishable in the sense that the Court was considering the matter of succession to the Mahantship and in that connection the particular aspect also arose for consideration. The gist and ratio of the ruling is contained in paragraph 64 at page 722. I may quote the very paragraph in full and then apply the principles to the facts of this case:

In order to prove ''that a person has adopted the life of a Sanyasi, it must be shown that he has actually ''relinquished and abandoned all worldly possessions and relinquished all desire for them or that such ceremonies are ''performed which indicate the severance of his natural family and his secular life. It'' must also be proved in case of orthodox Sanyasis, that necessary ceremonotes have been performed, such as Pindadana or Birajahoma or Prajapathiyesthi without which'' the renunciation will not be complete.

Two modes have been provided for the proof that a person has adopted the life of a Sanyasi. The first mode is that it must be shown that he has actually relinquished and abandoned all worldly possession and relinquished all desire for them. This is not true is the instant case for Bharya Lal. His own subsequent actions would show that he did not relinquish and abandon all worldly possession and relinquished all desire for them. It is noteworthy that subsequent to the alleged Sanyas, bhaiya Lal mortgaged the property in suit to defendant No. 2 and thereafter after substantial interval sold the property to defendant No. 1. This in itself would show that he had a desire to possess and had not relinquished or abandoned such desire he had also not relinquished or abandoned the worldly possession in the sense that he continued, handling the same and even transferred it. I may further add that his desire to possess and declination to relinquish is borne out by another factor also. After sale in his favour the defendant No. 1 filed a suit for redemption of the proparty, which was earlier mortgaged. Bhaiya Lal joined defendant No. 2 and contested the suit for such redemption, which in itself shows that Bhaiya Lal has been indulaging in wordly acts making efforts to save the property and from that as a factual aspect he cannot be deemed to have abandoned the worldly possession. Thus, taking of Sanyas according to the, first mode is not established.

The position may be different when by performing all the requisite legal rites and ceremonies'' the person had become Sanyasi and thereby has died a civil death.

The second mode laid down in paragraph 64 of the case of Krishna Singh (supra) deals with such situation observing that such ceremonies are performed which indicate the severance of his natural family and his secular life. There is a rider also that in case of orthodox Sanyasi it has to be proved that the necessary ceremonies, such as ''Pindadana'' or ''Birajhoma'' or ''Prajapathiyesthi'', without which the renunciation will not be complete, has been performed.

It is, noteworthy that in this case there is ao allegation that Bhaiya Lal was not an orthondo hindu that he belonged to, any, caste in which all the prescribed ceremonies according, to Vedas etc. were not to be necessarily observed for taking ''Sanyas. Rather the witness on the actual alleged performance of the ceremonies, namely, PW 1 Anand Prakash has deposed of Vedic Sutras meaning thereby that to the class to which he belonged, i.e. to Udasis Vedic ceremonies rites applied, as is the case with the orthodox class. Once the court comes to such a finding of fact, the principles laid down in the aforesaid Division Bench case Baldeo Prasad (supra) following a number of other pronouncements would apply and prajaphiyesthi and ''Birajahoma are very essential while from ther statement of anand pakash it does, not appear that these ceremonies were also performed. It is not a case where he has not specified the actual ceremonies performed and when it is so and he does not mention at all performance of aforesaid ceremonies, which according to the Division Bench case of Baldeo Prasad (supra) is a must; it can safely be held that as the particular ceremonies were not performed consequently, even if the statement of Anand Parkash, PW 1 is believed it would not-prove that Bhaiya Lal had become Sanyasi in accordance with the concept of Hindu Law. Thus the position that transpires is that he did not become a Sanyasi according to the concept of Hindu Law, nor by his deeds to which I have referred earlier: Rather his own subsequent act and conduct would show that he remained attached to the world and the worldly possession and continued to live a civil life and did not die a civil death.

Having, held so. I may proceed to consider the next two points raised, It is urged that the house in suit was constructed out of the proceeds of an ancestral house. There existed an ancestral house which was sold is borne out by the document Ext. 12, the partition deed of 10-12-1958. There is sale-deed of 1962, by which Bhaiya Lal sold the very house for Rs. 5,800/-. Evidence was led on behalf of the plaintiff; that actually, Bhaiya Lal passed the sale consideration to his brother Chunni Lal PW 4, who got the house in suit constructed. The lower court held that the statements of plaintiff Awadesh Kumar, his uncle Chunni Lal, PW 4 and Laxmi Narain do not inspire confidence, His sole consideration was that why Bhaiya Lal will pass over the sale consideration to Chunni Lal, when the later even got his share separated by, partition earlier. The trial court, however, overlooked one point. In the very deed in question it was recited that the money was required for business.

The defendant''s stand was that Bhaiya Lal had independent source of income from business, from Thekadari and also on some occasion carrying diamond mining. The lower court believed that version. It, however, dealt with that aspect in shabby and slip-short manner. There is nothing to suggest that any diamond was found or such adventure paid any dividend. Actually no source of income through finding of any diamond by mining is proved as regarcls income from Theka business, unfortunately the trial court has overlooked the statesmen of DW 3 Sheo Shanker, which is of great importance. His statement was recorded in November, 1976. He has stated that since the last one year or six months Bhaiya Lal has stopped Thekedari work and Immediately prior to that he did Thekedari work for 5-6 years. Allowing maximum latitude to the defendants, it would mean that the alleged Thekedari work was started by Bhaiya Lal not earlier than 1969, while the house in suit was constructed much earlier in 1965 or so. Thus, any income from the alleged Thekedari work was not there when this house was constructed. It is also noteworthy that all the three DWs have cut a sorry figure so far as Thekedari matter is concerned. DW3 Sheo Shanker says that Bhaiya Lal used to do this contract business in the name of others, but does not mention their names. When the, DWs Gajadhar Prasad, Moti Lal and Sheo Shanker were cross-examined concerning the alleged Theka affairs, they even could not give any particulars of the Theka allegedly taken. It can safely be held that the house in suit could not have been constructed from any income of diamond mining or Theka.

The only other source of income was alleged business; Firstly, there is so proper proof by any documentary evidence what was the Income, what was the stage of business and it would farther be found that grain dealing in such a distance past in small place cannot be very profitable. I may also add that in the sale deed relating to the ancestral house itself, Bhaiya Lal recited that the money was required for business. Thus, even if there was a business, it would be taken to be a joint family business by the Karta, namely, Bhaiya Lal, on behalf of father and son both; and even if it is believed that the house was constructed from any income from the business, it will be a joint family property when the sale proceed of ancestral house was utilized as per recital of that sale deed itself. I, therefore, da not agree and reverse the finding of the lower court that the house was constructed by the independent income of Bhaiya Lal as to be his self acquired property and I find that the property in suit happened to be a joint family property.

The next point that would arise for consideration is whether still the sale-deed will be binding upon the plaintiff. The plaintiff is the son of Bhaiya Lal and the settled principles of Hindu Law is that a father can alienate even joint family property including the share of his son for payment of an antecedent debt, which is not immoral. It is noteworthy that nowhere it is alleged that the mortgaged debt taken by the father was for any immoral purpose and was tainted with immorality. It was urged that under the mortgage deed there was no personal liability for the debt. This is not proved. For a certain period the property was enjoyed by the mortgagee. There was then a clause that if by that stipulated period the mortgage debt remains unpaid, the mortgagee will become the owner and the right of redemption will be extinguished. This stipulation is certainly a clog on the equity of redemption and will not be binding. The appellant''s counsel also appears to be conscious of this fact and it was urged that it was a conditional sale. The recital'' of the mortgage-deed, however, are very clear and there is no conditional sale by any Interpretation of the deed. It was purely a mortgage and further stipulation was just by way of clog on the equity of redemption which has to be overlooked and is not binding in accordance with the settled principles of law. I may at this stage refer to the leading case on transfer by father for the discharge of an antecedent debt, namely, the case of Raja Brij Narain v. Mangala Prasad AIR 1924 PC 50. The law laid down therein is still a good law and there is no pronouncement of (his Court or the Supreme Court to the contrary on the point. It has been laid down in that case, that it is pious obligation of the son to pay his father debt, which existed, whether the father is alive or dead. The only rider attached to this principle is that the debt should be antecedent in foot as well as in time and they must be so truely and not part of the transaction impeached. The further condition according to the general principles of law as laid down in this case also is that such debt should not have been incurred for immoral purpose. In the present case there is neither a plea nor any proof that Bhaiya Lal contracted the debt qua mortgage for immoral purpose so that exception is ruled out. It would further be found that the mortgage is dated 29-1-1968, while the sale-deed is of 1-2-1971, i.e. after a lapse of three years and also in favour of a different person unconnected with the earlier mortgagee the mortgagee in question is defendant No. 2, while the transferee under the sale-deed is defendant No. 1. It is, there fore, further established that the mortgage debt is truly independent and not part of the sale transaction and arguments to the contrary have no force. It was argued that the mortgagee itself is being impeached and the mortgage was not for discharge of any antecedent debt. I have anxiously considered that argument. Any enforcement of the mortgage is not sought. The mortgage will create personal liability of the father also which would mean that it was an antecedent debt of the father and when it is independent in time and transaction, sale-deed executed to discharge that mortgage debt, adjust a debt, would also be for discharge of antecedent debt, which will be a pious obligation of the son as well. It is not a case whirs the son came forward to challenge the transaction before the sale of the very house. When that sale has taken place and it is not the enforcement of the mortgage which is sought, the sale will be binding: upon the son also having been made to discharge, the antecedent debt of the father. It is noteworthy that in the sale-deed (Ext. 2), it has been expressly recited that Bhaiya Lal took Rs. 2,000/- as loan from Lotan on 22-1-68 and mortgaged the house. It was further stated that mortgage debt has mounted and Bhaiya Lal is not in a position to pay it off, hence this sale has become necessary. It was further stated that taking Rs. 2,000/- in advance from the vendee the sum has been remitted to Lotan and if Lotan refused to accept, the vendor will give the same to the vendor and the vendee may himself then pay to Lotan and obtain receipt. It is noteworthy that had the mortgage continued; the debt would have kept mounting. It is also noteworthy that once the stipulation in the mortgage-deed concerning the passing the property to the mortgagee is ignored and over-looked as a clog on the equity of redemption the liability for the payment of debt will come into, play and the mortgagor would be liable to pay. In the circumstances, on the established facts of this case the sale deed in question for payment of antecedent debt of the father, which is not immoral, and consequently it would bo binding upon the plaintiff and the plaintiff cannot avoid it in the garb of seeking cancellation of the mortgage itself.

The learned Counsel for the appellant relied upon the case of Dudh Nath v. sat narainn AIR 1966 Alld. 315, but this in way help him in this case because it is not established from the evidence that the sale was at a throw away, price and not for adequate consideration. As regards the question of prudent act, it would be found that the property, already stood mortgaged for Rs. 2000/- and would have been Jota for only such sum, if efforts were not made to clear the mortgage debt by the sale of the property for a higher price, which has been done Reliance was also placed upon the case of Prasad and Others Vs. V. Govindaswami Mudaliar and Others, .as regards the proposition that it is the pious obligation of the son to pay the antecedent debt of the father, and the property can be alienated for payment of such antecedent debt by the father, if not tainted with immorality this case also upholds it. Thus, the very preposition as in the ace of Brij Narain (supra) has been laid down in this ruling also. Further observation is that where the document is executed nominally with a view to stave of creditors, the transaction is vitiated, and it has been further laid down that the father should act like a prudent man as not to sacrifice the property for inadequate consideration. I have, already discussed that aspect to hold that the properly is not shown to have been transferred for any inadequate consideration, nor the father appears to have acted not in prudent manner and it is very significant to further observe that the father, though present in the court and from the circumstances appearing to be, in collusion with the son to save the property, has not dared to appear in the witness box,

After discussing all the points, I found no force in this appeal. The appeal is dismissed with costs.