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Ramakrishna Narayan Sindhe Vs. Vinayak Nabayan Saswadkar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number Second Appeal No. 383 of 1908
Judge
Reported in(1910)12BOMLR219
AppellantRamakrishna Narayan Sindhe
RespondentVinayak Nabayan Saswadkar
Excerpt:
.....in a hindu family to represent, subject to certain conditions, his sons or other members in a suit brought upon a mortgage against him. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter addressed to the 1st respondent, viz., s, he is purported to have recorded that the he had given all his shares to her - will was not only unnatural but was..........in a hindu family to represent, subject to certain conditions, his sons or other members in a suit brought upon a mortgage against him. for instance, in ramasamayyan v. virasami ayyar ilr (1898) mad. 222, the mortgage had been executed by a hindu father. the suit was brought against him and two of his three sons and there was a decree a suit having been brought by the third son, it was contended by him that as he had not been made a party to the previous suit upon the mortgage, the decree passed in it, and the sale consequent upon it, did no bind him, and he relied upon section 85. it was held there that the father represented the sons in the absence of proof that the mortgage had been effected for a debt of the father contracted for an illegal or immoral purpose. so also in lala.....
Judgment:

N.G. Chandavarkar, J.

1. It is true that Section 85 of the Transfer of Property Act requires that all persons, having an interest in property comprised in a mortgage, must be joined as parties to any suit under Chapter IV of the Act, relating to such mortgage, provided that the plaintiff has notice of the interest. But the section has been construed by the Calcutta and the Madras High Court as not interfering with the rule of Hindu law, that it is open to a father in a Hindu family to represent, subject to certain conditions, his sons or other members in a suit brought upon a mortgage against him. For instance, in Ramasamayyan v. Virasami Ayyar ILR (1898) Mad. 222, the mortgage had been executed by a Hindu father. The suit was brought against him and two of his three sons and there was a decree A suit having been brought by the third son, it was contended by him that as he had not been made a party to the previous suit upon the mortgage, the decree passed in it, and the sale consequent upon it, did no bind him, and he relied upon Section 85. It was held there that the father represented the sons in the absence of proof that the mortgage had been effected for a debt of the father contracted for an illegal or immoral purpose. So also in Lala Surja Prosad v. Golab Chand ILR (1900) Cal. 724, the mortgage was by a Hindu father, who, with his son, constituted a joint Mitakshara family. It was held that the father incurred the debt in his representative capacity and as manning member of the family. And the ruling of the Court was that it was open to the son by a suit to question of the (sic) and the sale consequent upon it, but that the son, in order to succeed and entitle him to redeem his share of the property, must show not merely that he had not been made a party to the brought against the father, but also that the debt of the mortgage was not binding upon him, having been incurred for an illegal or an immoral purpose by the father. The principle seems to be sound and in accordance with the observations of their Lordships of the Privy Council in Khairaj Mal v. Daim (1904) L.R. 32 IndAp 35 : 7 Bom. L.R. 1.

2. In the present case the mortgage was by Santaji, the grandfather of the present appellant, by his uncle Maruti, and by his brother Shivram, a minor, who was represented by his mother, Gojrabai. To the suit which was brought subsequently on the mortgage, the persons brought on the record as defendants were the present appellant's undivided uncles, Maruti and Farshram, and his undivided brother Shivram who had at that time arrived at the age of majority. The present appellant was, no doubt, omitted from the suit, but the adult members of the family represented him. They were the managing members of the family. Therefore, according to Hindu law, we must hold, in the absence of any other circumstance, that the present appellant had been substantially represented upon the record, and was virtually a party to the suit. Further, even if Shivram, the brother of the appellant, had not been brought upon the record, there was Maruti, the eldest managing member of the family. The debt again was one contracted by Santaji, the grandfather of the appellant, and the latter is bound by it unless it had been contracted by Santaji for illegal or immoral purposes. It has been found that the debt had been contracted by the managing members of the family for its benefit and necessities.

3. On these grounds the decree must be confirmed with costs.


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