Raghunandan Prasad Singh and Another vs Ghananand Singh

Wort, J.—This is the defendant''s appeal in an action brought by one Kumar Ghananand Singh, son of Kumar Kalikanand Singh, for a declaration that he is not bound by the decrees in two mortgage suits of 1914. He further prays for an injunction restraining the defendant from executing those decrees against his share of the family property.

The plaintiff is a member of the Sirinagar Raj family and the defendants are Kumar Baghunandan Prasad Singh, Kumar Deokinandan Pragad Singh, and Kumar Jadunadan Prasad Singh sons of Raja Shivanandan Prasad Singh, deceased, of Monghyr. The mortgage suit out of which the subject-matter of this action arises was commenced on the 18th December 1914 based upon two mortgage deeds, one of the 18th July 1904 executed by Kumar Kamlanand Singh and his brother Kumar Kali kanand Singh, in favour of the father of defendant 1, grandfather of the two second defendants for Rs. 7,33,138-8.0 and the second mortgage was dated 7th November 1912 executed by Kumar Kalikanand Singh in favour of the same person for Rs. 3,00,000.

The subject-matter of the two bonds was the Raj property. The plaintiff is stated to have been born on the 27th August 1913 and he was therefore a minor when the mortgage actions were brought; but he was not made a party. It is admitted that on the date of his birth the plaintiff was interested in the mortgaged pro perty; and it is admitted that it was necessary to join him under Order 34, Rule 1 Civil P.C. The plaintiff in his action therefore, sought the declaration to which I have referred.

Before the Subordinate Judge the action succeeded and the defendants appeal to this Court. Having a decision against them the defendants, to prevent time running against them, commenced a mortgage action in the Subordinate Judge Court against the present plaintiff, and it is contended by the respondent by way of preliminary objection that this appeal does not lie. It is difficult to understand this argument. The defendants had a decision against them and obviously they are entitled to appeal to this Court. The respondent could advance no principle under which the defendants would be prevented from commencing their action as they have done in the Subordinate Judge''s Court in order to get their remedy against the plaintiff''s part of the Raj property in the event of an ultimate decision against them in this Court or before the Judicial Committee of the Privy Council, The objection in my opinion has no foundation and must be overruled.

Two questions arise in the appeal, one of fact and the other of law, the first being whether the plaintiff was born on 27th August 1913 as found by the Subordinate Judge. The second question is whether as a matter of law in spite of the fact that the plaintiff was not joined in the action he is still bound by the decrees. There are two or three questions arising out of this question of law. This action has been brought before the sale in execution of the mortgage decrees had taken place. It is admitted that in the circumstances. of the case, and as a matter of law, if the action had bean brought after and not before the sale in execution the plaintiff could not succeed. This is settled by authority. The first subsidiary question that arises is whether the fact that this action was brought before the judicial sale makes any difference. The second question is, assuming that the position in law is the same before and after sale, whether the doctrine of representation applies to the peculiar facts of this case.

It is necessary to state briefly one or two facts for the purpose of the subsidiary questions of law. Kumar Kamlanand Singh and Kumar Kalikanand Singh who executed the mortgages were the sons of Shree Nandan Prasad Singh. Kumar Kamlanand had three sons, Ganganand, Achutanand and another son who died in 1915. Kalikanand, it is stated, had five sons and one daughter, although there is a statement by one of the witnesses that he had six sons and one daughter. The question whether he had five or six sons is material on the question of fact as to the date of the birth of the plaintiff. The third son according to the genealogical table given in the record of the case was the third son of Kalikanand and he is the plaintiff. The minor sons of Kalikanand who were then living were joined in the suit, but the plaintiff was not, as I have stated. The sons of Kalikanand were Abhoyanand, Bijoyanand, Joyanand who died in 1919, the plaintiff, and another son, who was born about 1922 and has since died.

As to the question of fact the Subordinate Judge held that the plaintiff was born on 27th August 1917. The mother and other witnesses, including a cousin of Kalikanand, the father of the plaintiff, and an astrologer deposed to this effect. The cousin of Kalikanand deposed to the effect that he kept a diary and that he heard of the birth of the plaintiff and made an entry in the diary, although when the entry was made no name was given to the infant. The appellant has attempted to discredit his evidence on this ground contending that it might wall have been another son, who was, according to the argument, born about this time. But the mother has deposed clearly to the effect and the only doubt that can be seriously cast upon the mother''s evidence and that of the astrologer is the question of whether there were five sons born or six sons. The astrologer in cross-examination had stated that he did not recollect if he deposed in another case that Kumar Kalikanand had six sons and one daughter, but it appears that he did so depose.

The argument of the appellant however is chiefly based upon a mortgage deed which was executed in 1915. It appears to have been drafted in November 1913 and a fair copy typed. The date of the bond (as it appears from the original by reason of the use of different inks) was left blank. There was a further blank space for the purpose of putting in the name of a son who was described in the draft as "recently born." The name in the bond as it now appears is that of the plaintiff. I have stated that the bond was executed in 1915 and it is argued that if in fact the plaintiff was born on 27th August 1913, the description "recently born" is not apt and that it must have referred when the document was drafted to another boy who was supposed to have been born some time between August and November 1913, but not the plaintiff. It may very well be that "recently born" is not an apt description for a person who had been born some two years before; but such an argument cannot prevail, in my judgment, over the explicit evidence of the mother, and not to say anything of the other witnesses who had deposed to the same effect, There is no reason, in my judgment, to come to any conclusion on the question of fact other than that at which the learned Subordinate Judge has arrived.

Now as to the question of law. Mr. Hasan Imam has stated and it appears to be a fact that the learned Subordinate Judge has relied upon the case of Bhawani Prasad v. Kallu [1895] 17 All. 537. This was a case in which one of the defendants, Bhawani Prasad, mortgaged the family properties without the assent or knowledge of his sons. The mortgagee brought an action on the mortgage bond; but did not join the three sons of the mortgagor. The plaintiff obtained a decree against the mortgagor for the sale of the property. The three sons then brought an action alleging that they were not parties to the action and had received no benefit from the loan in respect of which the mortgage was executed. The Munsif dismissed the plaintiff''s suit. The Subordinate Judge allowed the appeal. There was an appeal to the High Court and ultimately the case was referred to a Pull Bench.

The majority of the Judges taking part in the Full Bench reference came to the conclusion that the plaintiffs were not bound. Banerji, J., dissenting however held that the sons could not succeed in the action except on such pleas as would have relieved them from liability for their father''s debt had they been made a party to the mortgage action. The learned advocate for the respondent relies upon the decision of the majority of the Judges in this case and contends, contrary to the argument of Mr. Hasan Imam, that none of the cases cited on behalf of the appellant have dissented from this case.

Mr. Hasan Imam however in the first place contends that the case of Brij Narain Rai v. Mangla Prasad AIR 1924 P.C. 50 in effect overrules the Allahabad case. It was a decision of the Judicial Committee of the Privy Council. The managing member of a Mitakshara family had executed a mortgage of the joint family property and when the mortgage suit was brought, although the minor members were joined, they were not represented by a guardian ad litem. This will appear from the report of the case in the High Court in Brij Narain Rai v. Mangla Prasad [1918] 41 All. 235. The fact is that the minors'' father was proposed as their guardian ad litem but no notice was served upon him and the mother with whom the two sons were living. The Central Nazir of the Court was appointed guardian but no notice was sent to the mother nor any funds supplied to the Nazir to enable him to defend the suit. The suit ultimately was decreed ex parte. The minor sons in the suit, it is to be noted, not only put forward the contention that they had not been properly represented but that the mortgage had been executed without legal necessity and was invalid. During the course of the opinion delivered by Lord Dunedin, in the Judicial Committee of the Privy Council, it was stated that the defendant admitted that the ex parte decree was not binding on the minor members in respect that they were not properly represented. Lord Dunedin goes on to state that the contention was that there ought to have been a declaration that under the circumstances the property became bound and was liable to be taken in execution. With reference to one of the subsidiary points of which I have made mention in the earlier part of this judgment, it is to be noticed that this was an action before the sale in execution had taken place. The discussion in the Privy Council was mainly based on the question of whether in the circumstances the consideration money for the mortgage was for the paying off of an earlier mortgage Which formed an antecedent debt and that therefore whether the mortgage was binding upon the minor members. The Judicial Committee came to the conclusion that it was an antecedent debt and the mortgage was therefore binding. It is sought to differentiate this case on the ground that the only discussion was as to the character of the debt: but it is difficult to accede to this argument having regard to the admission which was stated by Lord Dunedin. If the respondent''s contention is right as to the binding character of this decree, it would appear that whether the prior mortgage was an antecedent debt or not, technically the plaintiffs were entitled to succeed on the bare admission that the decree was not binding on them.

For the respective contentions of the parties before us a large number of cases have been relied upon which I propose to take in order. The first is the case of Suraj Bansi Koer v. Skeo Prasad Singh [1879] 5 Cal. 148. This gives very little assistance to us on the main question as it was a case in which the family property had been sold in execution and it was there held that the property could not be recovered unless it could be shown that the debts were of a kind in which they, the plaintiffs, would not have been liable and that the purchasers had notice to that effect. In this connexion reference might be made to the case of Khiaraj Mal v. Daim [1904] 32 Cal. 296. The only facts which it is necessary to mention is that this was a suit for redemption by a minor member who had not been represented in the original mortgage action and that it was after a. judicial sale. The case is important for the reason of the statement of Lord Davey as to the principle of law which applies in India. The statement is in these words:

The Indian Courts have properly exercised a wide discretion in allowing the estate of a deceased debtor to be represented by one member of the family and in refusing to disturb judicial sales on the mere ground that some members of the family who were minors were not made parties to the proceedings if it appears that there was a debt justly due from the deceased and no prejudice is shown to the absent members.

The respondent does not accept this statement of the law as binding upon us in this particular case having regard to the fact, which 1 have already stated, namely, that the action was before sale and not after sale.

Barnasamayyan v. Virasami Ayyar [1898] 21 Mad. 222 was another case after sale and merely reiterates the principle that the plaintiffs are entitled to have the case tried out as to whether there was debt by the father which would support the mortgage, but certainly gives some support to the appellants'' contention that the plaintiff in this action can only succeed by showing that the nature of the debt was not such as to support the mortgage as against a Mitakshara family.

In Palani Goundan v. Bangayya Goudan [1893] 22 Mad. 207 the principle stated in the case of Ramasamayyan v. Virasami Ayyar [1898] 21 Mad. 222 was declared to be the law and it is to be noted that in this case the plaintiffs were content not merely to state that they were not parties to the action but they farther alleged that the debt had been contracted for immoral purposes. This point is mentioned because it is argued that all that the plaintiff is entitled here is to raise such defences as he would have been entitled to raise had the plaintiff been joined as a defendant in the mortgage suit.

The next case is Lala Surja Prosad v. Golab Ghand [1900] 27 Cal. 724. In this case the case in Bhawani Prasad v. Kallu [1895] 17 All. 537 was expressly dissented from, reference being made to Ramasamayyan v. Virasami Ayyar [1898] 21 Mad. 222, and it was held that the father having incurred the debt in his representative capacity and as the managing member of the family and the sons having been substantially a party to the suit through the representation of his father, the action could not succeed merely on the ground that he was not made a party to the suit.

The case of Debi Singh v. Jai Ram [1903] 25 All. 214 was a case in which the case in Bhawani Prasad v. Kallu [1895] 17 All. 537 was discussed and the Court held that they were bound by the decision and pointed out the distinction between the case then before the Court and the case in Bhawani Prasad v. Kallu [1895] 17 All. 537, the distinction being that in the case before them the sale had taken place and that where such a sale had taken place, the Court cannot treat the decree and sale in execution as mere nullities. The action in order to succeed must be based on some ground which under the Hindu law would free the minor son from liability to pay his father''s debt.

Jaddo Kuar v. Sheo Shankar Ram [1910] 33 All. 71 is one of the eases which has dealt with the question which arises in this case, namely that of representation. It was an action after sale and it is important to notice that there was a claim to redeem. Chamier, J., (as he then was) points out in the case that tha authorities establish that where a joint family has been effectively represented in a suit and substantial justice has been done, the Court is not always bound to set aside execution proceedings merely because every member of the family was not made a party. This case came before the Judicial Committee of the Privy Council in Sheo Shankar Ram v. Mt. Jaddo Kunwar AIR 1914 P.C. 136, where the language used by Chamier, J., was adopted by Lord Moulton stating that in the particular case there was not the slightest ground for suggesting that managers of the joint family did not act in every way in the interests of the family. Reference must be made to the facts of the case as it is contended that there could be no such representation in the case before us. The argument is based on the fact that in the mortgage suit some minor members of the family were joined as defendants and that therefore it is obvious that the plaintiffs did not look upon the karta of the family as representing the other members of the family and a distinction is drawn between the present case and the one to which reference has just been made, inasmuch as it was held that for the purposes of redemption the manager of the family could represent in certain circumstances the other members of the family. But in this action in a mortgage suit in which the mortgagors were the defendants the defences which the minor plaintiffs would have advanced are defences which the manager of the family would be precluded from advancing, namely the immoral character of the debt.

The distinction which the respondent seeks to draw is indicated in the case of Balkishan v. Topeswar Singh [1912] 14 I.C. 845. There the head of a family executed a mortgage. The mortgagee sued to enforce the security, but as the plaintiff was an infant, proposed that the father who was himself a defendant should be appointed guardian ad litem. The father refused to accept the service of notice and did not enter appearance as guardian of his infant son. There was an ex parte decree and execution was applied for. The plaintiff, the minor son, then commenced an action that the decree was not binding upon him. Mookerji, J., held that the father did not represent the infant, the equity of redemption which was vested in the plaintiff by his birth was not extinguished by the proceedings in Court, and held that the plaintiff was entitled to have an opportunity to redeem.

Raghunandan Singh v. Parmeshwar Dayal Singh [1917] 2 Pat. 306 was a suit in which the plaintiff sought to redeem the property which had been mortgaged by the father being the head of a joint Hindu family. The plaintiff had not been joined in the suit; but one of the points an the case was whether the mortgage was for a loan which was a pressing necessity for the plaintiff''s family and was not contracted for any immoral purpose. These points were decided against the plaintiff; and reliance was placed upon the decision in the case of Durgadut Singh v. Rameshwar Singh Bahadur [1909] 36 Cal. 943. Lord Atkinson pointed out in that case that in cases governed by the Mitakshara law a father may sell or mortgage not only his own share but his sons'' shares in family property in order to satisfy an antecedent debt of his own not being of an illegal or immoral character, and such a transaction may be enforced against his sons by a suit and by proceedings in execution to which they are not parties. Chapman, J., who delivered the principal judgment of the Court pointed out that there is no prejudice to the minor. Even if he had been joined in the suit, it is impossible to redeem as the father was the de facto manager and had all the assets of the family under his control. But the chief point in the case was that of representation and that in such cases as was before the Court it was necessary to hold that the son could be represented by the father.

Nathu and Another Vs. Ram Sarup and Others is a case by the mortgagees against the mortgagors in which one of the defences put forward by the defendants was that one of the sons of the mortgagors had not been joined. The trial Court accepted the contention but that was disallowed by the appellate Court; but the learned Judges deciding the case expressly refrained from holding that the judgment was to be upheld on the ground that the minor member had been represented and at the and of the judgment it was pointed out that although the action would have succeeded it was open to the minors to bring an action to avoid the alienation on grounds which are ordinarily open to minor members of a Hindu family.

In Ganpat Lal v. Bindbasini Prasad Narain Singh AIR 1920 P.C. 1, the head of a Mitak-share family mortgaged a family property. A suit being brought on the mortgage the minor sons were not effectively joined in the mortgage suit. They then brought an action neither impeaching the debt nor the mortgage admitting that they were binding upon them but claimed to be entitled to redeem on the ground that they had been minors at the time and had not been represented by a guardian. It was admitted that if a person interested in the mortgaged property who had not been joined in the mortgage suit comes in before foreclosure or sale he has all the rights of redemption that his interest in the property gives him and may exercise them notwithstanding the decree. It was contended that the facts of the case before the Judicial Committee were different inasmuch as neither the debt nor the mortgage was impeached; that the debt was due and owing at the date of the mortgage decree. It was decided that while the decree for sale stood and the sale had taken place under it, the right of redemption was extinguished unless the sale was set aside.

The principles that can be deduced from the authorities which have been relied upon are these: that after sale an action such as the present one, can succeed only on the ground that the plaintiff was not a party to the original mortgage action and that the debt was not such as to be binding on him. Secondly, that where redemption is sought, a manager of the family may effectively represent the minor members. It remains to be seen whether on the facts of this case or on general principles it can be held that the plaintiff was bound by the mortgage decrees. It is argued by the appellant that the principle that a son is under a pious obligation to pay the debts of his father is sufficient to dispose of this case. It is to be noted that certain minor members of the family were completely represented in mortgage suits and there can be no doubt that they raised every possible defence that could be raised in the mortgage action by minor members of a joint Hindu family.

I have already stated that it is contended that the case in Brij Narain v. Mangla Prosad AIR 1924 P.C. 50 definitely overrules the decision in Bhawani Prasad v. Kallu [1895] 17 All. 537 and in support of that argument the case of Genda Mal Vs. Narsingh Das, is quoted and which definitely decides that point. It is difficult to see how this decision is wrong as contended by the respondent. If the reason which I have pointed out had been sufficient, namely that the decree was not binding on the minor members because they were not represented, whether there was an antecedent debt or not, they would have succeeded in the action had it not been for the principle that it was necessary for them to make allegations such as they would have made as defences had they been joined in the suit. In the case before us the plaintiff definitely pleaded:

that the bonds were not executed for any valid and binding legal necessity or benefit of the joint family.

but at the trial of the action he did not press this part of the case; no issue was framed and the only question was whether by mere non-joinder the plaintiff was entitled to succeed. It is quite clear from the authorities that had the plaintiff in this action fought out the question of legal necessity and failed the action would have to be dismissed. The defendant-appellant has made an offer to the plaintiff to redeem which he has decline; no prejudice of the plaintiff whatever has been shown or even argued and the plaintiff desires to succeed in the action on the mere technical ground of non-joinder. If he were to succeed in this contention one must assume, having regard to the fact that he has not pressed the point of want of legal necessity that in a later action he would fail.

In my judgment, therefore, whether it can be said that his father properly represented him in the action or not, the mortgage decree was a debt which he had pious obligation to pay and as no prejudice to him has been shown, the only conclusion at which I can arrive is that the action must fail.

In the result therefore the appeal must be allowed with costs.

Adami, J.

I agree.