Subramania Chetty vs Chidambara Mudali

Sadasiva Ayer, J.—The plaintiff is the appellant, He sued on a mortgage bond of May 1913 executed by defendants 1 to 3 for themselves

and the minor members of their family) the third defendant acting as guardian of his younger brother, the fourth defendant, Who was then a minor

though he had attained majority on the date of this suit.

The only question in this appeal is whether the fourth defendant''s orte-sixth share in the mortgaged properties is also liable to be sold for the

plff''s debt. The facts are that defts. 1 to 3 purchased for their family in March 1913 under Ex. B for Rs. 10,000 lands in a neighbouring Village.

They seem to have had no money irt cash on hand to pay the purchase-money, and in order to pay up Rs. 4,000 of that Rs. 10,000 they

borrowed the said sura of Rs. 4,000. from the plff. under Ex. A on the mortgage of their ancestral properties, (the pLalnt properties). The question

is whether the managing members including the elder brother (the father of the 4th deft, not being among the managing members who executed Ex.

A) can bind the fourth deft''s share of the ancestral properties for a debt borrowed for such purpose.

In re''Krishnaswami Doss Reddi (1912) M.W.N. 167 Sundara Iyer, J held that except for necessity or for the manifest benefit of the family an

alienation by the managing me''mbers (in that case, by way of sale of the ancestral properties,) cannot bind a junior member''s interests in the

properties. In Subramania Nadan, Minor by his Maternal Uncle and Next Friend Kuthalalinga Nadan Vs. Ramasami Nadan and Others, Ayling, J

and myself held that, for the purpose of purchasing more lands for the family, the manager was not entitled to mortgage the family lands so as to

bind the junior members''share. In Ganesa Aiyar v. Amirthasami Odayar (1918) M.W.N. 892 the learned Chief Justice and Kumarswami Sastri, J

held on the facts that no such necessity or benefit as will bind the junior members'' share was proved though the alienor in that case was the father

himself of the repudiating junior member. Kumaraswami Sastri, J. seems not to have dissented from the opinion of Sundara Iyer, J. in In re

Krishnaswami Doss Reddi (1912) M.W.N. 167 that manifest benefit is sufficient and that it is not necessary to prove necessity. He however says

that recitals as to benefit to the family should be scrutinised carefully even if the alienation was made by a father having regard to the ease with

which such recitals can be made by an improvident father in order to raise money. I'' might be permitted to say that, having regard to the fact that

fathers and managing members very frequently set up junior memb ers to repudiate transactions entered into by the former and take advantage of

the fact that, as time passes, evidence to prove necessity or benefit tends to become weaker, I should rather be inclined not to insist on the very

strong proof which Kumaraswami Sastri, J seems inclined to require in all cases and my sympathies are more in favour of the alienees. That seems

to have been the reason why the Allahabad High Court in Bohra Jeth Mal v. Dharam Singh (1912) 14 I.C. 745 when a mortgage of 1882 made

by the managing members was sought to be repudiated by junior members about the year 1910, was inclined to hold on the evidence, differing

from the lower court, that benefit to the family had been proved for the mortgage debt created by the actual managing members. In the present

case, however, the evidence, viewing it even indulgently towards the plaintiff seems to me to amount only to this: that defendants 1 to 3 believed

that it would be for the benefit of the family to purchase the lands offered for sale (and situated in another village) even if the purchase money had

to be raised by mortgaging those lands themselves for a portion of the purchase money and by mortgaging the ancestral family lands under Ex. A

for the other portion. The purchased lands however seem not to have yielded even the interest on the amounts borrowed and therefore I cannot

say that the Lower Court''s finding that the transaction was not for the benefit of the family is wrong. If so, the 4th defendant''s interest were rightly

exonerated.

I therefore dismiss the appeal with costs.

Spencer, J.—I agree: I think that the purchase of the lands at Mathur by the brother of the 4th defendant and his adult co-parceners was an

imprudeut and speculative one made without due care for the interests of the minor members of the family, as it involved the family lands being

encumbered for payment of the purchase money, and as those adult members must have known that, if they could not pay the mortgage money out

of the income of the lands, would put the ancestral lands of the family in danger of being sold in execution of a mortgage decree. The subordinate

Judge was right in his finding and the appeal must be dismissed with costs.