Malik Md. Ibrahim vs Harakh Narayan Singh and Others

Mukharji, J.—This second appeal is by the plaintiff whose suit for enforcing a mortgage bond was decreed in part by the learned Sub-ordinate Judge, but was dismissed on appeal by the learned Additional District Judge.

One Bisu Singh had four sons, Rajkumar, Rupan, Ramdhari and Shivanandan. Rupan died leaving a widow. Shivanandan''s only son, Ram Manorath, was dead when the bond in suit, Ex. 1, was executed. Rajkumar had two sons, Tribeni and Ramratan. Tribeni died during the pendency of the appeal before the Additional, District Judge. Ramdhari, who is dead, has left sons and grandsons. Exhibit 1, the mortgage bond, was excuted by Ramratan and Ramdhari. In the bond it is recited that the money Rs. 1500, was required for the marriage of Ramdhari''s grand-daughter and for payment of petty debts to creditors. According to the plaintiff there were two repayments one of Rs. 500 and the other of Rs. 751. After taking these repayments into account and remitting Rs. 825 odd; claim was laid at Rs. 2173 odd, the rate of interest mentioned in the bond being 1 p.c.p.m. The learned trial Court decreed the suit for Rs. 1749 allowing six. months as the period of grace and adding that if the decree is not satisfied within this period, the plaintiff will be at liberty to realise the decretal amount with future interest at 6 p.c.p.a. by the sale of the mortgaged property.

There was an appeal against the decision of the learned Subordinate Judge, and this was heard by the learned 1st Additional District Judge. The appellate Court held that there was no legal necessity for the loan. The learned Additional District Judge pointed out that there are discrepancies between, the recitals in the bond and the evidence in Court. The bond states, as already mentioned above, that the loan was required for meeting marriage expenses and also for payment of petty debts. In evidence the plaintiff stated that the loan was necessary for marriage and to meet khalihan and bihan expenses. The evidence is silent as to what portion of the loan was required for meeting the marriage expenses. The plaintiff further stated in his evidence that some money was also required to meet the education expenses of Punit Narain Singh, one of the defendants.

The defendants took a number of pleas, and among them one was that the family was a joint Hindu family with Ramdhari Singh at its head. Another plea was that the plaintiff was a farzidar for the defendants and that there was no passing of consideration under the bond. These pleas were negatived by both the Courts below.

In this second appeal, it has been argued on behalf of the plaintiff-appellant that the question of legal necessity really does not arise in this case. The learned advocate for the appellant contends that the. marriage of Ramdhari Singh''s daughter''s daughter was a pious act, and that as such it binds at least Ramdhari and his descendants. There does not appear to be any ruling of this Court exactly on this point. In Mt. Narainbati Kunwari v. Ramshari Singh AIR 1916 Pat. 178, it was held that under the Hindu Law the marriage of a daughter''s daughter is not a legal necessity. I have just said that the learned advocate for the appellant does not rest his case on legal necessity. He has referred to Colebrook''s Translation of the Law of Inheritance according to the Mitakshara. In Rule 28 of chap. 1, Section 1 of this treatise there; appears the following:

As exception to it follows: That even a single individual may conclude a donation, mortgage, or at sale, of immovable property, during a season of distress, for the sake of the family, and especially for pious purpose''

In order to understand Rule 28, one should go back to the immediately preceding rule, according to which immovable properties belonging to the joint family cannot be alienated except with the consent of all the members. "Mr. Jha who has argued the appeal for the appellant has laid great stress on the words "pious purposes," appearing in Rule 28 just mentioned. According to him the marriage of Ramdhari''s daughter''s daughter was certainly a pious act so far as Ramdhari and his direct descendants were concerned.

In this connection reliance has been placed upon a ruling reported in T. Srinivasa Rao and Another Vs. Annadhanam Seshacharlu and Another, It is the ruling of a single Judge. The facts of the case are altogether different from those of the present case. His Lordship held that under the Hindu Law a daughter inheriting property from her mother can alienate the property for the reasonable expenses for the marriage for her daughter''s daughter as the purpose of such a marriage is a pious and meritorious act under the Hindu Law which would conduce to the spiritual benefit of the deceased parents of the alienor. There are two distinguishing features of this case which should not escapse notice. The alienor is a daughter who inherited from her mother. The father of the girl given in marriage was poor and her mother was dead. For all practical purposes the girl was thus an orphan. His Lordship stressed in this case that the expenses should be reasonable. In the present case there is no evidence as to whether the expenses incurred in connection with the marriage of Ramdhari''a daughter''s daughter were, in the circumstances of the case, reasonable. There is also no evidence that the father of the girl was indigent. In the course of the erudite judgment delivered by his Lordship reference was made to Samskara Ratnamala of Bhatta Gopinatha. The learned author speaks of benefits accruing from the shastric gifting of destitute. kanyas (daughters) in marriage. There is no evidence in the present case, as already mentioned, that the girl in question is a destitute one who could not be married except with the help of Ramdhari Singh. Mr. Jha also relied on the case in (Yellamaraju) Venkatasubba Rao Vs. Lakkaraju Ananda Rao and Others, . There it was held that a sale by a Hindu widow of a reasonable portion of her husband''s estate for debts contracted for the thread and marriage ceremonies of one of her daughter''s sons was binding on the reversioner. One important feature of this case is that it lays down that such a sale is good even if the daughter''s sons are not so indigent as to be dependent upon their grandmother. In considering this case one has to remember that alienation was by a Hindu widow and not by the karta of a joint family. A Hindu widow who has, no son succeeds to the entire estate of her husband and she takes possession of it as an absolute owner. No doubt, her power of disposition is a qualified one and is analogous to the power of disposition of a male coparcener in a. joint Mitakshara family, but she can alienate property in her possession for the spiritual benefit of her husband. A widow can excavate and consecrate a tank believing that this will conduce to the spiritual welfare of her husband and for this purpose she may alienate a portion of the property to which she has succeeded on the death of her husband, but it cannot be said that the karta of a joint Hindu family can validly make such alienation. In the case of the widow whatever is conducive to the spiritual well-being of the husband is a good ground for alienation. In the case of a joint Hindu family there is no spiritual welfare of any particular individual to be considered. The karta is in charge of the joint family properties on behalf of all the members, and he must manage the properties as a careful and prudent man.

Reverting to the quotation from Colebrooke''s Translation of the Mitakshara, I may-observe that alienation by a single member" for pious purposes is to be an exception. No doubt exception proves the rule, but in order to make out a good case for such exception special reasons have to be given. If any alienation of or charge on the joint family property is to be made for the marriage of the karta''s daughter''s I daughter who belongs to an altogether different s family it must be shown that special considerations exist which would make such alienation or charge binding on the entire family. It would have been a good ground for the execution of the mortgage bond in question if there was evidence to show that the girl was so indigent that without the help of her maternal grandfather the marriage could not be performed.

In my opinion the contention of the learned Advocate for the appellant that the mortgage bond is binding at least on the sons; and grandsons of Ramdhari cannot be accepted. If Ramdhari had been alive, the mortgage would have been binding on him and him alone. On his death his sons and grandsons have taken the entire joint family property by survivorship. In my opinion the mortgage bond is not binding on them. So far as Ramratan, the other executant of the bond, is concerned, there was neither legal necessity nor any pious purpose.

Tribeni, a brother of Ramratan, one of the executants of the mortgage bond died during the pendency of the appeal before the learned Additional District Judge. His heirs were not substituted as appellant 1 before the first appellate Court filed a petition to the effect that the heirs of Tribeni were already on the record. One of the grounds taken in the memorandum of the second appeal and urged at the time of hearing is that as Tribeni''s heirs were not brought on the record, the whole appeal has abated. At p. 42 of the paper-book the learned first appellate Court has stated the four pleas which were pressed before him. The first was that the family was a joint Hindu family with Ramdhari as its karta. The second point pressed before the learned Additional Judge was that the mortgage bond was a farzi one. The third point so pressed was that there was no legal necessity. The fourth and the last point urged before the first appellate Court was that in view of the provisions of the Bihar Money-lenders Act the plaintiff was not entitled to get even a modified decree. These are all the points that were urged. There was no contention that the whole appeal abated because of non-substitution of the heirs of Tribeni Singh. Such a point cannot be taken in second appeal.

In the result I would dismiss the appeal, but in the special circumstances of the case, without any costs.

Manohar Lall, J.

I agree and wish to make a few observations only with regard to the strenuous argument of Mr. L.K. Jha that the loan taken to meet the marriage expenses of Ramdhari Singh''s daughter''s daughter on the security of the mortgage of the joint family property binds the estate. The decision of this Court in Mt. Narainbati Kunwari v. Ramdhari Singh AIR 1916 Pat. 178 is expressly in point and is against the contention of Mr. Jha. In that case it was held that expenses for the marriage of a daughter''s daughter whose father was alive and in a position to arrange for the marriage did not constitute such a legal necessity as would bind the estate left by the maternal grandfather. This decision is the decision of a Division Bench of this Court and binds us. Mr. Jha, however, argues that the decision is no longer binding upon us after the decision of their Lordships in (Yellamaraju) Venkatasubba Rao Vs. Lakkaraju Ananda Rao and Others, . In that case it was held that the gift by a Hindu widow in possession of the estate of her deceased husband of one seventy-fifth of the whole estate for the observance of bhog to a deity and for the main, tenance of the priests at the priests and being expressly made for the salvation of her husband and his family members was for the spiritual benefit of the deceased husband and therefore bound the estate. It is argued that if the widow could alienate the property for the spiritual benefit of the husband, why could not the male member himself make a similar alienation for the same or similar purpose. It is suggested that the loan taken to meet the marriage expenses of the daughter''s daughter was a pious act, the performance, of which would confer spiritual benefit on the loan taker. Attention was also drawn to the verse in Mitakshara that a single individual of a joint Hindu family may conclude a donation, mortgage, or sale, of immovable property during a season of distress, for the sake of the family and specially for pious purposes (dharmarthe). I do not agree with this contention because that would be extending the limits of the doctrine of legal necessity laid down so clearly and affirmatively by their Lordships of the Judicial Committee in the celebrated case in Brij Narain Rai v. Mangla Prasad AIR 1924 P.C. 50. That decision, it will be observed, was given after the decision relied on by Mr. Jha before us in Sardar Singh v. Kunj Bihari Lal AIR 1924 P.C. 50. A mortgage by the managing member of a joint Hindu undivided estate can only be justified for purposes of necessity and the doctrine cannot be extended for pious purposes.

The matter would have been entirely different if it had been found that the father of the grand-daughter was in indigent circumstances and therefore the loan taken for the marriage expense of that grand-daughter, should be treated as a legal necessity as pointed out in Narainbati Kunwari v. Ramdhari Singh AIR 1916 Pat. 178.

Mr. Jha referred us to the case in T. Srinivasa Rao and Another Vs. Annadhanam Seshacharlu and Another, a decision of a single Judge of the Madras High Court, But in that case as stated by the learned Judge at page 109 the question was whether the marriage of a daughter''s grand-daughter could be said to be a pious and meritorious act which would conduce to the spiritual benefit of the deceased parents of defendant 1. The learned Judge after examining the texts came to a clear finding that in the case before him the mother of the girl was dead and the father was poor and was not possessed of any means to perform the marriage and that the girl and her parents were living with defendant 1 and she was being brought up by her. The decision, therefore, can be supported on these findings. The cases referred to by the learned Judge at page 109 of the Allahabad and the Madras High Court also appear to be cases in which the alienation was upheld on the ground that the husband of the daughter and the father of the girl were indigent. The observation of the learned Judge that the gift of a destitute virgin in marriage is a pious and meritorious act from religious point of view does not advance the argument of Mr. Jha because here it has not been found that the girl in question was a destitute virgin. On the other hand, Mr. B.N. Rai has relied on the cage in Patell Thimma Reddi and Another Vs. Lakkireddigari Chinna Ranga Reddi and Others, where it has been held that although the first marriage of a Hindu is a sacrament, but the second marriage is not and although it '' may be desirable in the circumstances in which he finds himself for a widower to marry again, but as neither his personal law nor his religion requires him to contract a second marriage, there is no justification for saddling the expenses of the second marriage on the family estate.

It is unnecessary to pursue the matter further because I am satisfied that the decision in Mt. Narainbati Kunwari v. Ramdhari Singh AIR 1916 Pat. 178 should be followed by us and that the decision in Sardar Singh v. Kunj Bihari Lal AIR 1922 P.C. 261, has not shaken the correctness of that decision.

I agree that the appeal should be dismissed without costs.