Ganesh Prasad Singh and Another vs Sheogobind Sahu and Others

Wort, J.—It is not disputed in this case that as regards'' Rs. 700 the plaintiff, respondent was entitled to a decree for sale against the properties mortgaged. But the question which we have to determine is as to the other part of the consideration, namely, Rs. 1,300. Mr. Luby, the District Judge, has come to the conclusion that this sum was borrowed in connexion with a joint family business which was that of ferry-farming, and that the debt was contracted for legal necessity, and that all the defendants were liable under the mortgage bond. Had it been a question of the adult members only, I think I should have come to the conclusion that the plaintiff would be entitled to a decree for sale as regards the whole of the consideration. But the difficulty arises by reason of the existence of one minor member, and unless it can be held that the business was an ancestral business, or being joint family business it was indeed for legal necessity, that is to say, legal necessity inconnexion with the joint family estate, the plaintiff would be entitled only to a decree for money as regards Rs. 1,300.

It is conceded that the finding of the learned District Judge on this question as to the nature of the business was ambiguous. He has not in terms found that it was an. ancestral business, and it was suggested during the course of the argument that the matter should go back for the determination of that question. But on a perusal of the evidence of the plaintiff himself, it is quite clear that the question whether it was an ancestral business or a business of the family not being ancestral was present to the mind of the parties and it was stated in the course of that evidence to which I have just made reference, that no document was "looked to for the purpose of seeing whether it was an ancestral business".

I gather that the learned Judge in the Court below was not prepared on that evidence to hold that it was an ancestral business, and indeed the finding that it was for legal necessity rather points to that conclusion.

Now, assuming that it was not an ancestral business but a joint family business so called by the learned Judge, it would be necessary to determine that the borrowing of Rs. 1,300 was for legal necessity--but let it be remembered--not legal necessity of the business but legal necessity of the family property or the the family estate; and, unless that be shown, the joint family estate cannot be bound by the mortgage which these parties have entered into.

The law on this question was carefully examined by a Full Bench of the Allahabad High Court in Ram Nath v. Chiranji Lal A.I.R.1985. All 221 and without stating any details it was decided by the Judges that the family property might be bound by a loan incurred by one member of the family who was carrying on a business where it was shown that it was for justifying legal necessity. At any rate, so far as the Allahabad High Court is concerned, it leaves the question open as to what class of case comes within the principle there laid down.

I find myself in some difficulty in imagining a case in which the money borrowed for business not being an ancestral business can be held to be for justifying legal necessity as regards the family estate. We are saved from entering into a consideration with regard to that matter in this case by the finding of the learned Judge in the Court below. From that finding it will be dearly seen that the justifying legal necessity, which has bound the estate according to the decision of the learned Judge, was the fact that the sum was borrowed for paying the rent of the ferry.

It is quite clear in law that the decision arrived at by the Judge in this connexion is erroneous. Necessity of the business is not only not necessarily necessity of the joint family, but in my judgment it cannot be so unless, as I have already indicated, the necessity was in connexion with an ancestral business which in my judgment this has been held not to be.

Sir Lawrence Jenkins in delivering the opinion of their Lordships of the Judicial Committee in Sanyasi Charan Mandal v. Krishnadhan Banerji A.I.R.1922. P.C. 237 , while dealing with the question whether it was an ancestral business, made this statement with regard to the nature of an ancestral business:

The distinction between an ancestral business'' and one started like the present after the death of the ancestor as a source of partnership relations is patent. In the one case these relations result by operation of law from a succession on the death of an ancestor to an established business, with its benefits and its obligations.

For the reasons which I have stated, it appears that the Judge was unable to come to the conclusion that this was an ancestral business. The matter has been further considered in AIR 1932 182 (Privy Council) . There their Lordships of the Judicial Committee made this statement:

Next it was argued that a business started by the father as manager, even if new, must be regarded as ancestral. Their Lordships do not agree. It is in direct opposition to the ruling of the Board in Sanyasi Charan Mandal v. Krishnadhan Banerji AIR 1922. P.C. 237. The judgment in that case proceeded on the broad ground that the manager of a joint family has no power to impose upon a minor member of the family the risk and liability of a new business started by him.

Their Lordships then go on to remark that there is no difference between Dayabhaga and Mitakshara. Having come to the conclusion as I clearly do that the borrowing of Rs. 1,300 for the purpose of paying rent cannot possibly in law be held'' to be for justifying legal necessity qua the joint family estate, there appears to be no other conclusion to arrive at than that the plaintiffs in the suit were entitled to a mortgage decree as regards Rs. 700 but merely a decree for money for the balance, namely Rs. 1,300. In those circumstance the appeal is allowed in part with costs in proportion to the success of the appellants.

Varma, J.

I agree.