Kharag Narain and another vs Janki Rai and others

James, J.—Gobardhan Lal and his brother Girwar were members of a joint family, with their father Banaraei Lal, and their two uncles Brij Lal and Dularchand. Gobardhan Lal at an early stage began to quarrel with his family and to do business on his own account with Janki Rai. On 9th February 1918 he executed a bond whereby he purported to mortgage a share of 1/6th in the property specified, part of which was ancestral property of the family, while part had been bequeathed by Nandu Lal, the maternal grandfather of Banarasi Lal, to his three grandsons Banarasi Lal, Dularchand and Brij Lal. In the mortgage bond there was a recital to the effect that Gobardhan Lal had demanded partition of the family property; but the members of the family were unwilling to make if : so this mortgage was executed in part for payment of antecedent debt and in part to raise money for the purpose of instituting a suit for partition. The money was not utilised for the institution of the partition suit, but it was utilised for a separate business carried on by Gobardhan Lal. After 1918, the three brothers made further acquisitions of joint family property. They did not mention the name of Gobardhan Lal in any deed; but as there is no mention of any sons, this fact would not necessarily be of any significance. If Gobardhan Lal had actually separated in 1918, he would not prima facie have been entitled, when partition was ultimately made, to a share in this property, though he might possibly have been entitled if, while he still remained a tenant-in-common, the property was acquired from the joint fund. On 21st May 1927, after the death of Banarasi Lal, Gobardhan Lal''s two uncles with his brother executed a mortgage, wherein they recited that Gobardhan Lal had out himself off from his family in the lifetime of his father and had ceased to have any right to the family property. The mortgagee doubtful on this point obtained another mortgage bond in the following year in the execution of which Gobardhan Lal took part, wherein it was recited that the family was joint. On 25th September 1928 a formal partition of the property was made, wherein a third share went to Gobardhan Lal and his brother Girwar who immediately partitioned this share between themselves. On 7th December 1929 Gobardhan Lal mortgaged part of the property which had fallen to him on partition to Rai Bahadur Kharag Narain. On 12th January 1930 he sold a portion of that property to Mt. Lal Pari who redeemed to that extent the mortgage of Kharag Narain.

On 11th May 1931 Janki Rai instituted a suit on the basis of his mortgage of 1918, claiming to proceed against the property which had fallen to Gobardhan Lal on partition. The suit was instituted almost 12 years after the date of payment fixed by the mortgage bond, but within time. It was contested on various grounds by the sons of Gobardhan Lal, and also by the mortgagee of 7th December 1929 and the purchaser of 12th January 1930, who asserted that the bond was a colourable transaction not executed for consideration; that there was no family necessity for the bond; and that since the mortgagor was a member of the joint family when the mortgage was made, nothing was conveyed by the transaction. The Subordinate Judge found that the mortgage was for consideration and that so far as the sons of Gobardhan Lal were concerned it was binding on them because it was executed on account of antecedent debt and for family necessity. He found. that the mortgagor was not separate from his father and uncles at the time when the deed was executed but that he represented to the mortgagee that he was separate. The learned Subordinate Judge accordingly applied the provisions of S. 43, T. P. Act, holding that since the mortgagor by actual separation had placed himself in a position to carry out the alienation which in 1918 he had represented himself to be able to do the mortgage deed must be enforced. The mortgagee of 1929 and the purchaser of 1930 were transferees for value, but the learned Subordinate Judge found that they had failed to prove that they had no notice of the option conferred by the mortgage of 1918 and it could therefore be enforced against them. Immediately after the institution of the present suit, the mortgagee of 1918 instituted a suit on his own mortgage bond which was apparently disposed of more promptly than the suit with which we are here concerned so that he was able to obtain a decree and purchase the property in dispute while this suit was pending. The mortgagee and the transferee of 12th January 1930 have appealed from the decision of the Subordinate Judge.

Mr. Khurahed Husnain on behalf of the appellants attacks in the first place the finding of fact of the learned Subordinate Judge that at the time of the mortgage the mortgagor represented to the mortgagee that he had made a definite announcement of his intention to separate such as would amount to separation in the eye of the law. Mr B. G. De, supporting the decree on grounds decided against him in the trial Court, argues that the learned Subordinate Judge ought to have found that there was actual separation in 1918. Whatever representation might have been made, Mr. Khurshed Husnain argues that the mortgage should not be regarded as taking effect upon the share which ultimately fell to Gobardhan Lal on partition, because the mortgagor did not purport to transfer a share of an undivided estate but merely a share in specific property. He argues also that the mortgage of an undivided share is void ab initio and no equity can be created by it such as would call for the application of the provisions of S. 43, T. P. Act, or of any other equitable rule. Finally he argues that the appellants are transferees for value with, out notice of the option and that they are therefore protected from the operation of S. 43.

Mr. Khurshed Husnain suggests that there is no averment in the plaint that Gobardhan Lal at the time of the mortgage represented that he was separate. In the translation of the plaint which has been prepared for this Court, the expression "apne khuahish zahir kiya" has been translated "expressed desire" (for separation and partition) but "announced an intention" would be an equally good translation and it cannot be said that the representation has not been pleaded. Two witnesses, Bihari Lal and Damri Sao, state that Gobardhan Lal actually did make an announcement of the fact that he was separate before the execution of the mortgage and since it appears to be clear that he was at that time and for a long time afterwards on bad terms with his family and he did actually separate from them, there is no reason why this evidence should not be accepted. The recitals in the bond of 21st May 1927 (Ex. 2) indicate what the rest of the family thought on this matter. This deed executed by the surviving members of the joint family, Dularchand, Brij Lal and Girwar Lal, the brother of Gobardhan Lal, recites that Gobardhan Lal, the eldest son of Banarasi, separated during the lifetime of his father and went to his father-in-law''s house in Benares on relinquishing his claim, leaving the executants in possession and occupation of all the property of the joint family. But later we find Gobardhan Lal joining with the other members of the family in executing a mortgage deed and at the time of the partition they described themselves as joint.

Mr. Khurshed Husnain argues with some reason that we have not here anywhere a definite unequivocal and irrevocable announcement of intention to separate until the commencement of the actual proceedings for partition. There were attempts to obtain partition; Gobardhan Lal deserted the family home and went to Benares and the impression which would be conveyed by this evidence is that either of the two parties represented themselves as joint or separate as it Baited their convenience. The position of Gobardhan Lal appeares to have been uncertain and equivocal and it cannot be said that there was any unequivocal announcement of separation actually effected. On the other hand, it appears to be clear that Gobardhan did represent in 1918 that he had cut himself off from his family, although it does not appear from the subsequent conduct of the parties that the representation was regarded by them as irrevocable. I would accept both the findings of the Subordinate Judge : that the representation was made at the time of the mortgage and that the mortgagee believed it; and that there was no actual separation until 1928.

The objection that what was mortgaged was not a share in the undivided estate but was a share in specific property was not taken in the written statement and is now raised for the first time. The plaintiff asserted by his plaint that Gobardhan Lal''s one sixth-share in the family property mortgaged to him represented the share which was allotted to Gobardhan at the partition. He distinctly stated in para. 8 of his plaint that the property detailed and specified below in Sch. 2 had been allotted to Gobardhan Lal in lieu of the mortgaged one sixth-share. We do not know that at the time of the mortgage the joint family possessed any property other than that specified in the mortgaged bond; nor whether the subsequent acquisitions to the joint family were made from the common fund represented by this property. A new point of this kind must not be raised for the first time in appeal. If the point had been taken in the written statement, parties would have entered into evidence on this question; and it would have been possible to ascertain whether what was mortgaged was part of Gobardhan''s share or the whole of it. The learned Subordinate Judge has pointed out that at the time of the mortgage Gobardhan''s share would not have been one-sixth but one-ninth; but he appears to have been under the impression that he would be entitled to one sixth on partition, the share to which he would become entitled on the death of his father and which he actually obtained when the partition was made. I consider that the learned Subordinate Judge rightly treated the mortgage as a mortgage of the share of Gobardhan Lal in the joint family property together with his share in the property which descended to the family under the will of Nanu Lal.

Mr. Khursbed Husnain argues that since Gobardhan Lal was not separate at the time of the mortgage, his mortgage of an undivided share was void ab initio. This question was discussed by the High Court of Allahabad in 53 All 21, Madan Lal v. Chiddu, AIR 1930 All 862: 128 I C 829: 63 All 21: 1930 A L J 1628 where it was pointed out that an alienation made by a member of joint Hindu family is not void but voidable at the option of the other members of the family or of anyone of them. It appears that misunderstanding is apt to be caused by declarations that particular alienations are void which have been made after the alienations have been impeached by persons at whose option they were voidable when the Court, finding that the alienation cannot be supported, has declared it to be void. When a viodable contract is successfully impeached by a person entitled to challenge it, it becomes void; but this is not a contract of the kind which is in itself void ab initio. The learned Judges in the case quoted pointed out that the alienation cannot be impeached by the alienor himself or by any transferee who has not acquired by transfer or prescription the interest of the entire joint family. They made an exception of the position of an auction purchaser who may have purchased the interest of a coparcener in execution of a decree. From that decision it would appear that neither of the two appellants are entitled to impeach this mortgage of Gobardhan Lal on the ground that his interest in the joint family was not such as to entitle him to make it since they both appeared in the appeal in their capacities of transferees from Gobardhan. For other property in which the appellant, Rai Bahadur Kharag Narain, had acquired the interests of the entire joint family, his claim has been allowed by the Subordinate Judge; to that extent the plaintiff has failed and we are not concerned with that property in this appeal.

Section 43, T. P. Act, provides that where a person erroneously represents that he is authorized to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. In 1918 Gobardhan Lal erroneously represented that he was entitled by reason of his declaration of separation to mortgage a share of one-sixth in the joint family property; and he mortgaged that share to the plaintiff in 1928. When he did in the partition proceedings finally and unequivocally separate from the rest of the family, he became entitled to dispose of the one-sixth-share. I need only cite the decision in 18 A L J 807, Bhup Singh v. Chhedda Singh, AIR 1920 All 34: 58 I C 171: 42 All 696: 18 A L J 807 wherein it is pointed out that it is an incident of the mortgage of an undivided share in joint property that the mortgagee cannot follow his security into the hands of a co-sharer who may have obtained part of the mortgaged property on partition : the mortgage lien is transferred to that portion of the joint property which the mortgagor had obtained at the partition. As soon as the partition was effected on 25th September 1928, the mortgage lien was transferred to the property which fell to Gobardhan''s share; and the subsequent transfers of 7th December 1929 and 12th January 1930, which were made by Gobardhan Lal, were subject to the mortgage lien.

Neither of the appellants proved want of notice. The plaintiff said that he approached the appellant, Rai Bahadur Kharag Narain, when he was taking the mortgage from Gobardhan and he demanded his dues from him but the appellant declined to satisfy him. His karpardaz Munshi Lal stated in evidence that this appellant had no knowledge of the mortgage; but the Subordinate Judge did not believe him. If he was to avoid being charged with notice, it would have been necessary to demonstrate that there was some irregularity in the registration of the bond of 9th February 1918, in view of the provisions of S. 3, T. P. Act, as amended by S. 4 of Act 20 of 1929; and in the absence of such evidence the appellants must be deemed to have had notice of the existence of a previous mortgage. Neither of the appellants can claim to be in the position of a transferee without notice. The appeal accordingly fails and I would dismiss it with costs.

Courtney-Terrell, C.J.

I agree.