Kashibai vs Pandurang

Shivdayal, J.—This is defendant''s Second Appeal from a decree declaring that the plaintiff''s one-third share in the disputed house was not liable to he sold in execution of Kashi Bai''s decree in her suit for sale arising out of a mortgage in her favour.

The material facts are that a decree was passed in favour of one Ramchandra Rao Tambe against Narain Rao, Ganpat Rao and Pandurang Rao, three brothers. In execution thereof their house was to be put to sale. In order to pay off the judgment-debt Narain Rao and Ganpat Rao executed a deed of mortgage in favour of Kashi Bai on December 6, 1948. On foot of this mortgage deed Kashi Bai brought a suit for sale and a decree was passed in her favour. I am told that eventually the mortgaged house has been sold in execution and Kashi Bai herself is the purchaser.

Pandurang Rao brought the present suit alleging that he was a co-owner of the house to the extent of one-third share and that could not be sold. The defence was that Pandurang Rao was bound by the mortgage and the decree. An agreement dated November 25, 1948, whereby all the three brothers agreed to mortgage the house with Kashi Bai, was relied on. In that agreement Pandurang Rao authorised Narain Rao to execute the mortgage deed as he was going to Bombay where he was employed.

The trail Judge found that Narain Rao was the eldest brother, that the property of the three brothers was joint, that no partition had taken place between them, that the mortgage in favour of Kashi Bai was for legal necessity, and that the agreement of 25-11-48 (Ex. D. 1) was signed by Pandurang Rao. In consequence he held that Pandurang Rao was bound by the mortgage and the decree passed thereon. The suit was in the result dismissed.

The first appellate Court has reversed the decree of the trail Judge on two grounds: that the plaintiff was no a party to the mortgage and that he was not a party to the suit in which the decree was passed in favour of Kashi Bai. I shall deal with these two points separately.

As regards the objection, that Pandurang Rao was not bound by the mortgage it is sufficient to say that in his statement Pandurang Rao admitted that the property being ancestral belonged to all the three brothers that there had been no partition between them; that Narain Rao was the eldest brother and resided in the house; that Narain Rao let out the property to tenants and realised rent from them; and that Narain Rao paid taxes. He also admitted that he did not take any steps for setting aside the decree passed in favour of Ramchandra Rao Tambe. There could therefore, be not doubt that Narain Rao was himself entitled to mortgage the entire house including the share of Pandurang Rao provided the alienation was for legal necessity. That there was legal necessity has been found by both the Courts below in favour of the plaintiff. I must confess that I have not been able to follow the reasoning adopted in the judgment of the first appellate Court. In paragraph 14 the learned Judge has said, "the mortgage deed executed by defendants 1 & 2 alone in that respect in favour of defendant No. 3 is not binding on plaintiff as he was not a party to it." But quite contrary to it, he held in paragraph 12. "It is thus clear that it is the plaintiff who wrote the endorsement and signed it in Ekrarnama Ex. D-1. By this endorsement the plaintiff bound himself to the mortgage deed to be executed by his brother. That being so, plaintiff is bound by that mortgage-deed. Plaintiff now cannot challenge it. Lower Court is right in this respect. Ex facie these observations are self-contradictory. Shri Batham has been unable to cite any authority for the proposition that, notwithstanding the fact that a deed is executed by the manager of a joint Hindu family for legal necessity, the alienation is not binding on those members of the joint family who do not execute it. If it is not stated in the mortgage deed that the alienation was being made on behalf of those members as well. I am of the view that once two things are established:

(1) The alienation was by the manager; and

(2) That it was for legal necessity or for the benefit of the estate,

the transaction will be binding on all the members of the family, majors or minors.

Pandurang Rao was, therefore bound by the mortgage-deed, inspite of the fact that it was inartistically drawn and Pandurang''s name was not mentioned nor was it stated that the property was being mortgaged on his behalf as well.

Morever, it is quite clear from Ex. D-1 which has been found true by the Courts below that Pandurang Rao had undertaken to abide by the mortgage deed to be executed by his brother Narain Rao for Rs. 1500. At the time of the execution of the said agreement on 25-11-48, a sum of Rs. 200-, as part of the mortgage money, was paid by the mortgagee to three brothers. The mortgage deed which was executed and registered on December 6, 1948, was also for Rs. 1500-. In my judgment Pandurang Rao is not only bound by the mortgage deed but he is estopped from taking that he is not bound by it.

As to the second ground, it is true that Kashi Bai made only Narain Rao and Ganpat Rao defendants in her suit and the decree for sale which was passed in her favour was also against Narain Rao and Ganpat Rao. But it is now well settled that where a suit is instituted against the Karta of a joint Hindu family it is not necessary to implead all the members of that family if the Karta is sued. In this case there was a specific issue (Issue No. 1) whether Narain Rao was the Karta of the family and the trial Judge after an elaborate discussion decided the issue against the plaintiff. Patently, the facts admitted by the plaintiff in his statement leave no manner of doubt that Narain Rao was the Karta of the family. The first appellate Court has not reversed that finding. In Daulat Ram vs. Meharchand & others 14 IA 187 their Lordships negatived the contention of the defendants that the decree and execution sale both of which purported to affect the whole estate did not affect their interest as they were not parties to either the mortgage or the mortgage suit. That Case is opposite here.

When a suit is instituted against the manager and it is established that the person sued has that representative capacity the other members of that family including the minors are bound by the decree passed in such a suit, although the capacity in which the manager is sued has not been specifically mentioned in the plaint. See. Trimbak Vs. Lonkaran, I. L. R. 1948 Nag 393.

The learned Judge of the first appellate Court has observed in paragraph 15 of his judgement. ''''But the defendant No. 3 has not pleaded that the mortgage deed was executed by defendant No. 3 (should have been defendant No. 1) for legal necessity ......

...............In the absence of any such pleading the lower Court was wrong in dealing the question of legal necessity". What I find is that in paragraph 9 of Kashi Bai''s written statement all the facts which constitute a legal necessity were stated and in paragraph 10 it was pleaded that Narain Rao alone as Karta of the fully was entitled to mortgage the house and the entire property was bound by it. It is wrong to think that the expression ''''legal necessity'''' should have been imparatively used and its absence was prejudical to the defendant. The rules of pleading only require facts to be stated concisely and with precision. Whether a certain set of facts, when proved, constitutes a legal necessity or not is a question of law to be determined ultimately by the Court. The practice to the contrary, that is, just asserting that the impugned alienation was for legal necessity, without stating the relevant facts, and then introducing the facts in evidance, must be depreciated. In this case the written statement of Kashi Bai was in accord with the law of pleadings and I see no defect in it.

For these reasons the appeal is allowed, the judgement and decree passed by the first appellate Court are set aside and those passed by the triaal Judge are restored with costs throughout.