Dukhit Ojha and others vs Janki Singh and others

Kulwant Sahay, J.—The suit out of which the present appeal arises was instituted by the plaintiffs-respondents to enforce two mortgage-bonds, dated 6th March, 1905 and 15th July, 1908, executed by three brothers, Dukhit Ojha, Mahgu Ojha and Kuldip Ojha, who are defendants Nos. 1 to 3 in this case. Defendants Nos. 4 and 5, Ramdeo Ojha and Ramasis Ojha are the minor grandsons of Dukhit Ojha and they have been joined in the suit on the allegation that all the fire defendants form members of a joint Hindu family and the mortgages were executed for the necessities of the family. Defendants Nos. 6 and 7 are subsequent purchasers and mortgagees of some of the mortgaged properties and they did not appear and contest the suit.

The defence of the defendants Nos. 1 and 3 was that they were separate from the defendant No. 2; that the bonds in suit were not read over to them and they did not know the contents thereof; that the debts for the satisfaction whereof the mortgages in suit were executed were the personal debts of the defendant No 2, Mahgu Ojha, and they merely signed the bonds in suit as sureties, and received no consideration for the same. Defendant No. 2, also alleges separation and denies receipt of the whole of the consideration money. The real defence in the suit was by the minor defendants Nos. 4 and 5, who did not admit the execution of the bonds and alleged that they were not benefited thereby, and that the same were not binding on the family property. They further alleged that their father Rupdawan Ojha, the son of Dukhit Ojha, was living separate from his father, and that there was no legal necessity for the mortgages in suit.

The learned Subordinate Judge held that the family was not separate as alleged; that the bonds were executed by the defendants Nos. 1 to 3 with full knowledge of their contents and on receipt of the consideration money; that the loans advanced were for legal and justifying family necessities; that one of the minor defendants was not born on the date of the bonds in suit; and that the other minor defendant was born before the second bond but the transaction for which that bond was executed took place before his birth, and therefore, the minors could not object to the validity of the mortgages; and he accordingly made the usual preliminary decree for sale.

The defendants Nos. 1 to 5 appeal and the contentions raised on their behalf in this appeal are:-That there was no legal necessity for the mortgages in suit and that the minors, although not born on the date of the bonds, were still entitled to question the validity thereof as their father Rupdawan Ojha was then living and he could question the validity thereof.

As regards the first contention raised on behalf of the appellants it will be observed that the defendants Nos. 1 to 3 being the executants of the mortgage cannot raise the question as regards the validity thereof or the existence of legal necessity and the question can only be raised on behalf of the minor defendants.

[Here the judgment gave the details of the two bonds in question and proceeded as follows:-]

From the above statement of the transactions between the parties it appears that the transaction which the plaintiffs began sometime in the year 1901 and the bonds in suit were executed mostly to pay off prior debts incurred by Mahgu Ojha and Dukhit Ojha. It has been contended that the prior debts were mostly the personal debts of Mahgu Ojha, but, it has been found by the learned Subordinate Judge, and the finding has not been challenged before us, that the three brothers, Dukhit, Mahgu and Kuldip, were joint and the defendants Nos. 4 and 5 are still joint with them; and the fact of Dukhit and Kuldip joining in the execution of the bonds in suit is, in my opinion, sufficient to hold that they having accepted the validity of the prior debts agreed to mortgage the family properties for payment thereof, which is sufficient indication of the fact that the prior debts were for family necessities. The earliest of these debts is of the year 1901, and it appears that there have been a long series of borrowings by the family of small sums of money, and the plaintiffs appear to be the family Mahajan who used to advance money from time to time as occasion arose. Plaintiff No. 1 has given his evidence in the case and he says that on every occasion he made enquiries about the necessities for the loan, he enquired from the defendants first party and from other people in the village and other creditors of the defendants first party. There is evidence on the record to show that there was a real pressure upon the estate and that money was required for the marriage of the daughters of Dukhit and Mahgu. Some of these loans were incurred to pay off the decrees of creditors at a time when the family property was about to be sold in execution of those decrees. Where there has been a long series of transactions it is not always possible to prove exactly the purposes for which any particular item was borrowed, and, in such a case, it will be sufficient for the creditor to show that the family was in chronic need of money and that the moneys were advanced on the representation of the manager that they were needed for such objects. Moreover, where the necessity arises from the pressure of a judgment-debt, the person dealing with the manager of a joint family is entitled to treat the judgment as prima facie proof of necessity and he is under no obligation to go behind the judgment in order to enquire whether the debt covered by the decree was for legal and binding necessity of the family. The evidence adduced in the case is, in my opinion, sufficient to prove that the debts covered by the mortgages were for valid and justifying family necessities and that the plaintiffs advanced the loans after a careful and bona fide enquiry and honest belief in the existence of the necessities. In my opinion, the learned Subordinate Judge has come to a correct finding on these points, and the minor defendants are equally liable with the defendants Nos. 1 to 3 for the debts covered by the mortgages in suit and the properties mortgaged thereunder are liable to be sold.

In this view of the case, it is not necessary to consider the question as to whether the minor defendants, who were not born at the time of the mortgages, can question the validity thereof or whether the mortgages in suit were executed for debts which under the law can he treated as antecedent debts. The debts having been found to have been incurred for valid family necessities, the mortgages are valid and binding on the family properties, and the decree made by the Court below must stand. The appeal is, therefore, dismissed with costs.

Das, J.

I agree.