Sm. Pankajini Debi vs Pramatha Nath Ghosh and Another

Chatterji, J.—This appeal arises out of a suit brought by the plaintiff to enforce a simple mortgage bond dated 7th November 1925, executed by Gopiram Naik, defendant 1. At that date Gopiram was a member of a joint Mitakshara family with his brother Jagannath Naik. The mortgage was in respect of his undivided half share in a certain house. In 1930 Gopiram filed a partition suit against his brother Jagannath. As a result of the partition decree passed in that suit, Gopiram obtained the southern portion of the house and the northern portion was allotted to Jagannath. In 1932 Gopiram executed a mortgage of his half share in the house in favour of defendant 2. The latter sued on her mortgage and obtained a mortgage-decree on 15th November 1935. The decree was executed, and the mortgaged property was sold and purchased by defendant 2. In due course she obtained delivery of possession. The present suit was instituted on 18th September 1936. The suit was contested by defendant 2, alone, one of her defences being that the mortgage of 7th November 1925, being executed by a coparcener in respect of his undivided share in the joint family property was void. This defence found favour with the Munsif who dismissed the suit. On appeal, however, the learned Subordinate Judge took a different view and held that the question whether the mortgage was void could not be raised by defendant 2. Accordingly he decreed the suit and passed the usual mortgage decree. This second appeal has been preferred by defendant 2.

It is contended by Mr. K.K. Banarji for the appellant that the mortgage in suit was wholly void inasmuch as it was executed by a coparcener in respect of his undivided interest in joint family property. In the events that have happened this contention cannot prevail. Indeed in 1925 Gopiram and Jagannath were joint, but in 1980 Gopiram filed a partition suit. The effect of the institution of the partition suit was to cause a disruption of the joint family. From that moment the interests of Gopiram and Jagannath became separate. When subsequently in 1932, Gopiram executed a mortgage in favour of defendant 2, the latter took mortgage of Gopiram''s separate interest in the house. Gopiram and Jagannath were no longer coparceners, and Jagannath ceased to have any interest in the half share of Gopisram in the house. What defendant 2 obtained by her auction purchase in execution of her mortgage decree was the separate interest of Gopiram in the house. She could not be heard to say that the mortgage of 1925 was void. It is not disputed that Gopiram him-self could not raise the objection. How can then defendant 2, a transferee from Gopiram, take that objection? Mr. K.K. Banarji contends that defendant 2 being now in 1 possession of the property, can defend her possession and resist the claim of the plaintiff ; but he ignores the fact that defendant 2 has acquired only the interest of Gopiram and not the interest of the entire joint family. Mr. K.K. Banarji relies on certain observations of the Privy Council in Lachhman Prasad Sarnam Singh AIR 1917 P.C. 41 and Manna Lal v. Karu Singh AIR 1919 P.C. 108. In these cases their Lordships observed that:

A mortgage of the joint family property of a Mitakshara family by its karta, unless necessity or an antecedent debt is proved, is void; the transaction itself gives to the mortgagee no rights against the karta''s interest in the joint family property.

But it is to be observed that in both these cases the mortgage was challenged by the other coparceners. In other words, the coparcenary still existed and the mortgaged property still remained the coparcenary property and, therefore, the other coparceners could challenge the mortgage as void, that is to say, not binding on the joint family. In the present case the objection, as I have already stated, is not taken by any other coparcener because the coparcenary has long ceased to exist. In Madan Lal v. Chiddu AIR 1930 All. 852 it was held that:

An alienation made by a member of a joint Hindu family is not void but voidable at the option of the other members thereof or any one of them I and that it cannot be impeached by the alienor himself or by any transferee who has not acquired by transfer or prescription the interest in the property alienated of the entire joint family.

This view was also taken by this Court in Khrag Narayan v. Janki Rai AIR 1937 Pat. 546 James, J., who delivered the judgment in that case (Courtney-Terrell C. J., concurring) observed:

An alienation made by a member of a joint Hindu family is not void but voidable at the option of the other members of the family or of any one 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.

Mr. K.K. Banarji argues that the decision in Madan Lal Vs. Chiddu and Others supports him in so far as in that case the plaintiff''s mortgage which was executed by one of the coparceners in respect of his undivided interest was held to be invalid on the objection of the contesting defendant who was an auction purchaser. But there the contesting defendant who challenged the mortgage was the purchaser of the entire interest of the joint family. It was held that having acquired the entire interest of the coparceners, he could challenge the mortgage by one of the coparceners. The position here is quite different. Here there is no longer any coparcenary and defendant 2 is the purchaser of the separate interest of Gopiram the mortgagor, alone. She has, therefore, no right to question the validity of the mortgage by Gopiram. In my opinion the decision of the learned Subordinate Judge is right. I would dismiss this appeal, but in the circumstances I would make no order as to costs.

Harries, C.J.

I agree.