Jatadhari Singh and Others vs Duhi Singh and Others

This was a suit by the respondents to set aside two sale deeds, the first executed on the 20th of December 1904, and the other executed on the 15th of February 1906, by the defendants Rameshwar Singh and Parmeshwar Singh. Rameshwar Singh and Parmeshwar Singh are the sons of the plaintiff No. 1, Dukhi Singh, and it is not disputed that the plaintiffs together with the defendants, Rameshwar Singh and Parmeshwar Singh, formed a joint Mitakshara Hindu family. The documents show that the sale-deeds had to be executed because there were prior debts and because the executants wanted money for necessary family purposes; but there is not an iota of evidence in the record to, establish that there were any debts prior to the execution of the sale-deeds which were binding on the joint family. The sale-deed of the 20th of December 1904 is Exhibit C, and it appears that the consideration money or Exhibit C was Rs. 2,000 which went" to" satisfy two earlier bonds, Exhibits A and B. Exhibit A was executed on the nth of May 1901, and Exhibit B was executed on the 10th of November 1903. There is not an atom of evidence in the record to the effect that the money which was borrowed on Exhibit A and on Exhibit B was required for joint family purposes; and the same appears to be the case with reference to the second sale-deed executed on the 15th of February 1906, Exhibit C (1). The consideration for the second sale-deed was Rs. 1,625--and we are informed that the whole of it went to satisfy the hand-notes, Exhibits H and H (I), and. the bonds Exhibits J and K. But, again, there is no evidence at all that Exhibits H, H (I) J and K were executed for any purpose which would bind the joint family. The result is that there was no legal necessity at all for the documents which were impeached in this suit. The plaintiffs were accordingly entitled to succeed and the appeal must be dismissed with costs.

The learned Subordinate Judge in giving a decree to the plaintiffs has made an order that the plaintiffs should recover the property-

Subject to the charge of Rs. 388-12-0 declared above in respect of 1 anna 2 pies 15 krts 4 masanls interest of plaintiff No. 1 and defendants Nos. 5 and 6 in the same.

Against this portion of the decree the plaintiffs appeal to this Court. The learned Subordinate Judge thought that, as there was a misrepresentation on the part of plaintiff No. 1 and defendants Nos.5 and 6, he was at liberty to put a condition into the decree, which in effect compels the members of the joint family, of which the plaintiffs and defendants Nos. 5 and 6 are members, to hold the joint family properties in defined shares. Now, in my opinion, the proposition enunciated by the learned Subordinate Judge is quite untenable on the decided cases. It is quite true that in Mahabeer Pershad v. Ramyad Singh 20 WR 192 : 12 BLR 90 the Calcutta High Court took the view that the minor (who was not a party to the transfer, which transfer was held to be without legal necessity), was entitled to a declaration that the mortgage-decree and sale were void, and on that declaration to recover the property for the family; hut that the mortgagees were entitled in equity, as against the father, and the elder brother, to insist upon their calling their shares into existence by partition and realising them with a view to repayment of the loan with interest; and it is also true that this case has been followed in two subsequent decisions of the Calcutta High Court. See Banwari Lal v. Sheo Sankar Misser 1Ind. Cas. 670 : 13 CWN 815 and Mohunt Ram Sundar Dass v. Barham Deo Narain Thakur 2Ind. Cas. 986 : 14 CWN 552. In my opinion, this view can no longer be maintained in view of the decision of the Judicial Committee in Lachhman Prasad v. Samam Singh 40Ind. Cas. 284 : 39 A. 500 : 15 ALJ 584 : 2 PLW 29 : 21 CWN 990 : 33 MLJ 39 : 19 BLR 646 : 26 CLJ 97 : (1917) CWN 516 : 6 LW 334 : LR 44 IndAp 163. The learned Judges deciding Mahabeer Pershad v. Ramyad Singh (1) were impressed, by the fact that, the consequence of giving a decree to the plaintiffs without making it conditional on the refund of the mortgage-money would be that the properties would return to the management of the very man who obtained the loan on the pretended security afforded by the mortgage of the property, and they thought that this result did not accord very well with equity or good conscience. Investigating the question a little more in detail, they thought that as any member of the joint family may, whenever he chooses, require that the properties shall be divided by metes and bounds it was open to the mortgagees in equity to insist upon the person who entered into the mortgage transaction calling his share into being and realising it for the benefit of the mortgagees; and in this view, the learned Judges said as follows:--"He obtained their money by representing that he had a power to charge the joint family property, which he knew at the time he did not possess; he is, therefore, at least bound to make good to them that representative so far as he can by the excercise of such proprietary right over the same property as he individually possesses;" and in the result the learned Judges in giving the decree to the plaintiff made it a condition that on recovery the property should be held and enjoyed by the family in defined shares and that the shares of the father and of the eldest son should be jointly and severally subject to the lien thereon of the defendants first parity for the repayment of the sum of Rs. 3,000 advanced by the defendants first party to them. The Judicial Committee in the case of Lachhmant Prasad v. Sarnam Singh 40Ind. Cas. 284 : 39 A. 500 : 15 ALJ 584 : 2 PLW 29 : 21 CWN 990 : 33 MLJ 39 : 19 BLR 646 : 26 CLJ 97 : (1917) CWN 516 : 6 LW 334 : LR 44 IndAp 163 declined to say whether that case was rightly decided or not but it took the view, that that case proceeded upon the footing that there was a representation on the part of, the persons who entered into the mortgage transaction that they had power to charge the joint faimly property, and that they would make good the representation by partition or otherwise. The Judicial Committee pointed out that there was little, if any, evidence of such a representation, but that such a representation was undoubtedly the basis of the judgment; and that, unless the learned Judges had held that an equity arose out of it, their judgment would have amounted to this, that for every mortgage by the head of the joint family the property of the joint family could be made available to the extent of the interest of the mortgagor. Now, in my opinion, no question of equity does arise in this case, nor indeed did it arise in the case of Mahabeer Pershad v. Ramyad Singh 20 WR 192 : 12 BLR 90. It may be that there was a representation that they had power to charge the joint family property, but such a representation is to be found in every case where the karta of a joint Mitakshara family alienates joint family property. Such a representation by itself raises no equity in favour of the purchaser or the mortgagee, for the law does not permit him to act upon that representation unless he satisfies himself by an honest and bona fide enquiry that the representation is true. Where he so enquires into the necessity for the loan or the sale and satisfies himself by an honest and bona fide enquiry that the necessity exists, the law completely protects him; for it is not a condition for his success in any litigation which may arise out of the transaction that he should prove the existence of the necessity. It is sufficient if he proves that he made an honest enquiry and was satisfied that the necessity existed. It is difficult to imagine why the Court should raise an equity in his favour if he does not do what the law compels him to do, namely, to make an honest and bona fide enquiry into the existence of the necessity for the loan or the sale. There is, in my opinion, no room for the application of any equitable doctrine where the purchaser or the mortgagee does not choose to protect himself but merely relies upon the representation made to him. The case would stand on a different footing if, in addition to the representation that he had power to charge the joint family property there is a further undertaking that he would make good the representation by partition or otherwise. Where it is proved to the satisfaction of the Court that there was such an undertaking on the part of the karta of the joint family, the Court has ample power to compel him to do that Which he undertook to do; but where there is no such undertaking it is, in my view, impossible for the Court to direct that the members of a joint family should hold their properties in definite shares and that the share of one or some of the members should remain charged for the payment of any money to the mortgagee or the purchaser.

I would allow the cross-appeal and vary the decree by directing that the claim of the defendants to a charge for Rs. 388-12-0 upon 1 anna 2 pies 15 krts 4 masants interest of plaintiff No. 1 and defendants Nos. 5 and 6 be entirely disallowed.