Deodhari Singh vs Babu Bh(sic)upnrain Singh

Roe, J.—This appeal arises from a decision of the District Judge of Saran, dated the 2nd January 1914. The suit was a unit on a bond executed by one Hardeo Singh mortgaging his rights in certain villages to the plaintiffs. The mortgage-deed contains a statement that the money was taken for purposes connected with a thikedari contract taken in the name of Hardeo Singh''s eon Bhup Narain and other general family purposes. Bhup Narain Singh was not Hardeo Singh''s only son, he had two other sons and these sons now have grandsons. On the case coming up for trial the eons of Hardeo Singh contested the suit on the ground (1) that the sum taken was not taken for family purposes and that, therefore, the limitation governing the suit would be six years, and (2) that even if it was taken for family purposes, the property actually mortgaged was not the whole joint family property but only the personal share of the father Hardeo. On the case coming to this Court for trial it appealed to us that issues of importance should be tried, (1) whether the transaction was one made for the benefit of the joint family, and (2) whether when acting in this transaction Hardeo Singh was acting as a karta of the family. For a decision upon these issues the case was remanded to the lower Appellate Court. The record has now been returned with clear findings of fact (1) that the transaction was a family transaction, and (2) that Harden was acting as karta of the family. On the case coming again before us for hearing Mr. Mullick concedes that these findings dispose of the question of limitation and contends on the authority of the case of (1887) ILR 14 572 (P.C.) (Privy Council) that the expression used in the document was intended to bind Hardeo Singh''s personal share only and that the view taken by the learned Judge Mr. Rowland was the correct view. The expression used in the document was "kul haq hissa apna." On a discussion of the meaning of these words the learned Judges in Simbhunath''s case Simbhunath''s case (14 C. 572 : 141 A 77 : 11 Ind. Jur. 311 : 5 Sar. P.C.J. 5 : 7 Ind. Dec. (N.S.) 379) arrived at the arrived at the conclusion that these words could only hear the meaning suggested by Mr. Mullick. The interpretation given to the document upon which that suit was brought was affirmed in appeal by the Judicial Committee, but it is to be noted that the Judicial Committee was not in its decision placing reliance so much upon the document itself as upon the decree made upon the document and the sale certificate. Their Lordships carefully refrained from any attempt to interpret the vernacular words used. The decision was based on the fact that undoubtedly the decree obtained upon the document was binding only on the father''s personal share, that the sale proclamation sold only the personal share and the sale certificate passed only the personal share. Their Lordships quoted without disapproval the opinion of Mitter, J., in the case of Upooroop Tewary and Others Vs. Lalla Bandhjee Suhay, . This opinion is expressed as follows:--

No doubt, the words used in the bond, by which the hypothecation was effected were "my proprietary share," but the share specified therein was the share of the family as contradistinguished from the shares of other coparceners, according to the true principle which governs the relations of members constituting a joint Hindu family under the Mitakshara Law. Dabee Pershad, the father, could not predicate of his interest in the joint property as constituting his share. The plaintiff''s case is, that at the time of the mortgage the family property was joint. Under these circumstances it seems to us that the bond, rightly construed, hypothecated the whole share in the disputed mouza which was held by the joint family.

Mr. Mullick contends that the governing factor in this decision is that the bond actually specified the share, and that the share specified was in fact the joint share of the joint family. This is not my interpretation of the words of Mr. Justice Mitter. Mr. Justice Mitter was speaking of what a Mitakshara father would ordinarily mean by the use of the words "my proprietary share", and is distinctly of opinion that in using those words he would mean the share of the family of which he is the head. I have the advantage of the opinion of my learned brother that in speaking of his "proprietary share" a Hindu father would ordinarily mean the share of the family of which he is the head, excluding any share which may have been held by brothers and others from whom he was now separate. This, too, was the view taken by the learned Munsif Mr. Brijnandan Singh and the learned Subordinate Judge Mr. C.C. Mukerjee. Moreover, in other parts of the document there is a clear indication that the share that he is mortgaging is a joint undivided share. The only joint undivided share of which we are aware in the present case is the joint undivided share belonging to the whole of the joint family. As their Lordships said in the case of Shamdin Matha, each document must be taken on its own merits. In this case there being no decree nor sale certificate from which the interpretation of the document can be facilitated, we must take the document as it stands. I hold that Hardeo mortgaged the whole property of the joint family for the purposes of the joint family business and thus holding would decree this appeal, set aside the order of the lower Appellate Court and restore the decision of the learned Subordinate Judge with costs in all Courts.

Jwala Prasad, J.

I entirely agree with my learned brother. The facts are:--

(1) That the executant of the bond in suit was the bead and the karta of the joint family consisting of himself and the defendants. Defendants Nos. 1, 3 and 6 are his sons and defendants Nos. 2, 4 and 5 are his grandsons.

(2) That the transaction was made for the benefit of the joint family.

(3) That the bond was executed by Hardeo Singh as the karta of the family.

(4) That the property mortgaged in the bond was joint family property belonging to the defendants and the paternal ancestor Hardeo.

(5) That the property was in possession of Hardeo and his sons and grandsons exclusively "without the participation and interference of any other individual.

The facts found are conclusive that the defendants are liable for the debt and the entire family property mortgaged is liable to he sold. There is no room for contention that only the share of Hardeo in the family property was mortgaged. The tenor of the document is against this construction. The bond seta out the purpose of performing necessary and important affairs and for carrying on the thicadari work. These purposes are for the benefit of the family, and Hardeo was, therefore, executing documents for family purposes.

The words in the document describing the property mortgaged, namely, my right and share of Mouza Saravi and Mouza Karava and Mouza Adli Chak, which I have been holding in possession without the participation and interference of any other individual", mean that the property mortgaged was held as separate from and exclusive of any other co-sharer but do not exclude the joint possession of the sons with the father. The words my right and share" represent the right and share of the sons with the father who is the representative of his sons in the joint family, as the father in a Mitakshara family naturally uses the words "my share" to include the share of his sons and grandsons who are subordinate to him and are supposed to have no existence so long as the father is alive and is the head of the family.

The father could not possibly say that the property was his exclusive property and without any participation when his sons were joint with him and were jointly interested in the property, unless he meant to convey by the words used by him the joint properties of himself and his sons which were exclusive of any other cosharers in the property, namely, brother or any distant relation.

The schedule to the bond describes the villages mortgaged in Touzi numbers and does not specify the share of the father in the properties, which would have been done if the intention was to mortgage his own share only and not the entire share held by him, his sons and grandsons jointly. A Mitakshara father joint with his sons always considers the family property as his own property.

That the intention of the father in this case was clearly to mortgage the entire family property inclusive of the share of his sons and grandsons is clear.

I agree that the appeal should be decreed with costs.