Khushi Ram and others vs Mehr Chand and others

Kapur, J.—This is a defendants appeal against the judgment and decree of the learned Senior Subordinate Judge of Ambala decreeing the suit of minor members of a joint Hindu family who attacked an alienation made by the karta of the family. In order to understand the facts of this family, it may perhaps be necessary to give the pedigree table of the plaintiffs'' joint Hindu family.

On 26th August 1931, Ram Sarup who is the grand-father of the present plaintiffs mortgaged with possession the suit land for Rs. 10,500 to defendants 1 to 3. The consideration was as follows:

Received credit for the amount due under a pronote dated 14th April 1931 in favour of the mortgagees.

Rs. 2300

To be received by the mortgagor before the Registering Officer for payment of other debts due by the mortgagor to other creditors and for business.

Rs. 8200

The interest on Rs. 5500 was to counter-balance the produce of the land and on Rs. 5000 interest at the rate of 8 per cent, per mensem was payable and in default of payment of interest, compound interest was payable. The period of the mortgage was five years and the person and other property of the mortgagor was liable for any unpaid mortgage amount. In other words, it was an anomalous mortgage. This mortgage deed was attested by the two major sons of Ram Sarup, that is to say, Benarsi Dass and Sukhdev Dass and also by Ram Saran Dass who is a maternal uncle''s son of Benarsi Dass and Sukhdev Dass. In 1933 Ram Sarup died and on 2nd September 1935, Benarai Dass and Sukhdev Dass sold the mortgaged property, defendants 1 to 3 for Rs. 12,800. The consideration of this sale-deed was as under:

Due on the previous mortgage

Rs. 11,800

Earnest money

Rs. 1000

To be paid to LalaRai Saran Dass of Zaffarpur to whom Rs. 1,100 was due.

Rs. 900

This sale-deed is witnessed by Dit Ram Lambardar, Mangal Sain a cousin of the vendors and Ram Saran Dass. On the same day the vendors executed another sale-deed Ex. D-16 by which they transferred their mortgagee rights in another piece of land in favour of the vendees, defendants 1 to 3, for Rs. 200. In this it was mentioned:

The entire sale money shall be utilised for payment of debt, due under pronotes from us to Ram Saran Dass, Caste Mahajan, resident of Zaffarpur, Ilaqa Kalsia State, our creditor and got paid to him before the registering officer towards Rs. 1,100 under a receipt.

Ram Saran Dass on the same day executed a receipt evidencing the receiving of Rs. 1,100 from the vendees defendants l to 3. This is a registered receipt which is witnessed by Mansa Ram Lambardar and Mangal Sain a cousin of the vendors and the money was paid before the Registrar.

On 11th June 1944, plaintiffs 1 to 5 who are the minor grandsons of Ram Sarup the original mortgagor brought a suit against the vendees defendants 1 to 3 and against their fathers defendants 4 and 5 alleging that the property in dispute which was mortgaged and sold was joint family property and that the alienations-mortgage and sale-were without consideration and necessity and were not for the benefit of the family, and they prayed for possession of the land. The vendees, defendants 1 to 3 (hereinafter called the vendees), in reply pleaded that the alienation was for consideration and necessity and for the benefit of the family, that they made bona fide enquiries from the sons and creditors of Ram Sarup and learnt that Ram Sarup mortgagor was indebted to several other persons, namely, Lakshmi Chand, Kashmiri Lal, Shib Ram, Radha Kishen, Ram Partap, Madan Lal etc., and that they also made enquiries from the sons of Ram Sarup who were majors in the family and when both the sons supported the representation made by Ram Sarup it was only then that they advanced the money on the mortgage. With regard to the sale, they pleaded that Rs. 900 out of the sale price were paid to Ram Saran Dass a cousin of the vendors and Rs. 100 was earnest money. They also pleaded that the mortgage was executed with the consent of all the adult members of the family and as they were the fathers of the plaintiffs, the latter have no right to challenge the mortgage-deed. On this, several issues were raised of which only three are relevant to the appeal:

(2) Whether the mortgage and sale dated 26th August 1931, and 2nd September 1935, respectively were effected for consideration and legal necessity and for the purposes of the joint Hindu family ?

(3) Whether the mortgage dated 26th August 1931 was effected with the consent of defendants 4 and 5 ? If so what is its effect.

(5) Relief.

The learned Senior Subordinate Judge found that the consideration for the mortgage, that is to say, Rs. 10,500 had been proved, but the necessity had been proved only to the extent of Rs. 1,306-11 and as the mortgage-debt in dispute was an antecedent debt, the mortgage was binding on the plaintiffs. With regard to the sale the learned Senior Subordinate Judge came to the conclusion that the payment of Rs. 900 and Rs. 100 had not been proved and therefore the sale could not be upheld, and in consequence of these findings he set aside the sale, but as the consideration of the sale also included the mortgage-debt, he held that the sale will not affect the plaintiffs'' right except to the extent of Rs. 11,800 and that the consent of the fathers of the plaintiffs was ineffective. Against this decree, the vendees have come up in appeal to this Court.

The learned counsel for the appellants has contended that on the finding of the Court that the consideration and antecedence of the debt of Rs. 11,800 was proved, he would be entitled to succeed if he proved the passing of the consideration of Rs. 900 and Rs. 100.

The payment of Rs. 900 in my opinion has been proved (His Lordship discussed the evidence and proceeded:)

The next item in dispute is one of Rs. 100 which in the sale-deed Ex. D-2 is shown as having been received as earnest money. (His Lordship discussed the evidence and held that the payment of Rs. 100 was proved.)

On these findings the defendants are entitled to succeed. But the defendants have gone further and they have produced evidence to show that the mortgage deed which is also disputed by the plaintiffs was for consideration and necessity and at any rate they had made sufficient enquiries which led them to bona fide believe that the money was required by Ram Sarup.

In order to prove that they made enquiries Sadhu Ram vendee has appeared as D. W. 12. (His Lordship referred to the relevant evidence and proceeded:) I think it has been sufficiently proved that enquiries were made by the mortgagees before they advanced the money, and it was after making these enquiries that the mortgage-deed was entered into. It has been held by their Lordships of the Privy Council in Hunooman Pershad v. Mt. Babooee Munraj Koonweree, 6 M. I. A. 393 at p. 423: (18 W. R. 81 P. C.) that,

a lender, however, is bound to inquire into the necessities of the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the benefit of the estate. If he does so enquire, and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge which renders him bound to see to the application of the money.

On this finding of enquiry also the defendants are entitled to have the alienations upheld.

Another point stressed by the learned counsel for the appellant was that the vendees took the precaution of not only making enquiries with regard to the existence of the debt, but they also got the sons to attest the mortgage deed. In Malta''s Hindu Law at p. 280 it is said :

Where a joint family consists of adults and minors the mere fact that all the adult members including the manager have consented to the alienation is not proof of legal necessity. Such consent, however, may supply any lacuna that may exist in the evidence of legal "necessity.

Jagannath v. Shri Nath ) one M who was blind and deaf on account of old age, alienated some property for paying some old debts and this deed was attested by R. & B. who were the eldest members of the family and heads of their respective branches. R. & B. did not go into the witness-box in a suit brought by the sons of R. & B. and it was held by their Lordships of the Privy Council that they (R. & B.) held by their Lordships of the Privy Council that they (R. & B.) were in a better position than any one else to say whether the money was applied for the necessary purposes of the family. The suit was a collusive suit and that the conduct of R. & B. afforded ample corroboration of the other evidence that the sale was effected for necessary family purposes. In Masit Ullaha v. Damodar Prasad, 48 ALL. 518: (A. I. R. 1926 P. C. 105) in somewhat similar circumstances their Lordships of the Privy Council came to the same conclusion. The Salamat Khan and Another Vs. Bhagwat and Others has held the proposition as is given in Mulla''s Hindu Law mentioned above. It appears that the statement of the Law in Mulla''s Hindu Law is based on this Allahabad ruling. In Rangasami Goundan v. Nachiappa Goundan, 42 Mad. 523 : (A. I. R. 1918 P. C. 196) it was held by their Lordships of the Privy Council in the case of an alienation by a widow that in the absence of proof of necessity and of enquiry made by the alienees the consent of such reversioners as might fairly be expected to be interested to quarrel with the transaction would be held to afford a presumptive proof which if not rebutted by contrary proof will validate the transaction as a right and proper one.

Of the major members of the family, Chaman Lall Hukam Chand and Om Parkash are not parties to the suit and they have not challenged the transaction in dispute. The fathers of the plaintiffs, Sukhdev Dass and Benarsi Dass must, in the language of their Lordships of the Privy Council, may be expected to be interested to quarrel with the transaction after giving their consent, and even when Sukh Dev Dass appeared as P. W. 5 he had to admit that the sale was executed in order to save the property from going to the creditors. Benarsi Dass did not come into the witness-box and as a matter of fact he was given up by the plaintiffs on the ground that he was won over. At any rate persons who should have known about the transaction have not been produced and this is a strong indication of the plea taken by the defendants that the mortgage was for consideration and necessity and so was the sale.

The defendants, however, have not contented themselves by relying merely upon abstract propositions of law. They have gone further and they have produced evidence to show that debts were due by Ram Sarup to other persons. [His Lordship referred to the evidence of witnesses who had lent money to Ram Sarup and proceeded:]

15-20. With regard to these witnesses the general criticism of the learned counsel for the plaintiffs was that their bahis were of rather an unsatisfactory kind and that there were pronotes which had been executed but had not been produced by the vendees. Merely because bahis were not so regular as one would expect from people who carry on very large business is no ground for rejecting the testimony of these witnesses with regard to the point in controversy. Nothing has been shown which would induce me to believe that these witnesses have given false evidence. As to the pronotes the replies by these witnesses were that they had returned them to Ram Sarup and it was for the plaintiffs to produce them if they wanted to rebut the testimony of those witnesses.

The total of these various amounts which have been proved by these witnesses comes to about Rs. 6900. On reading this evidence along with the principle laid down by Mulla that consent of adult members may supply the lacuna which may exist in the evidence of legal necessity, applies fully to this case. At the time of the mortgage Rs. 8200 was paid by the mortgagees to the mortgagor. This was evidenced by the adult sons Benarsi Dass and Sukhdev Dass. In my opinion, the defendants have made out their case and have proved the existence of debts which were to be paid for by Ram Sarup by means of mortgaging his property. (His Lord-ship then referred to the item of Rs. 2300 and held that it was also proved. His Lordship proceeded :)

In rebuttal of the evidence which has been produced by the defendants it was open to the plaintiffs to have shown from their bahis that the debts which the witnesses have deposed to as a matter of fact never existed, and that they were never paid back. Sukhdev Dass P. W. 5 has admitted that bahis exist from the time of their grand father and that the bahis were in possession of Banarsi Dass and also that income and expenditure of the family were joint and if in spite of that these bahis have not been produced and no evidence has been led by the plaintiffs to rebut the evidence of the defendants, the case of the defendants must be held to be proved. The learned counsel for the respondents took shelter behind the argument that the onus was on the defendants to prove the existence of the debt, its antecedence and its necessity, and that they were not bound to produce any bahis; at any rate the plaintiffs being minors were not in possession of these bahis. Proof about the non-existence and the non-payment of these debts was in possession of the joint family of which the plaintiffs are members and they cannot be allowed to take advantage of the abstract doctrine as to the onus of proof and conceal from the Court the evidence which should have been in their possession and which would assist the Court in arriving at a correct decision. See AIR 1947 129 (Nagpur)

I must, therefore, hold that the mortgage of 1931 was for consideration and necessity, the necessity being the payment of debts due to third parties and so also the sale the consideration for which was the mortgage for Rs. 11,800 and another one thousand rupees which was paid to a third person as also earnest money. If there exists in the evidence of legal necessity any lacuna that would be made up by the fact that all the then adult members of the family witnessed the mortgage deed and they have not shown whether the money which was then borrowed was applied for a necessary purpose or not.

On these findings the cross-objections must be dismissed with costs.

In the result the appeal must be allowed and the judgment and decree of the learned Senior Subordinate Judge, Ambala, set aside and the suit of the plaintiffs dismissed with costs throughout.

Harnam Singh, J.

I agree.