1. The question in this suit relates to the right, title, and interest, if any, of defendant No. 1, Kanaialal, minor, and his mother and guardian defendant No. 2, Laxmibai, in respect of certain property mortgaged by defendant No. Ps grand father Nandlal to the plaintiff, on which the latter obtained a decree, and which was sold and purchased in execution by the plaintiff. mortgagee decree-holder,
2. [His Lordship, after narrating the facts, proceeded :] It is admitted by both sides that the real question in this suit is whether, the right, title and interest of defendant No. 1 has or has not passed to the plaintiff by his purchase. It is argued for the plaintiff, firstly, that the mortgage in his favour was executed for an antecedent debt due to Maganlal and to Uderam and that Nandlal was therefore competent to mortgage defendant No. 1's interest along with his own to the plaintiff, and, secondly, that he had actually done so and the interest of defendant No. 1 has passed to the plaintiffs in consequence of their legal proceedings above. It is further argued that even if the antecedent debt was not a joint family trading debt, under the Hindu law as laid down by their Lordships of the Privy Council, as in Brij Narain v. Mangla Prasad , 26 Bom. L.R. 500, defendant No. 1 has no interest left and that his grand-father could and did alienate in favour of the plaintiffs. For the defendants it is argued that there is no evidence to show that the debts were incurred for a joint family business, much less, an ancestral joint family trading business, and that the question is not, whether Nandlal had or had not the power to alienate the interest of defendant No. 1, but, whether he actually did so, and that, in any case, defendant No. 1 not having been a party to the mortgage, or the suit, or the proceedings in execution, his interest has not passed, These proceedings moreover had been against Nandlal individually and nob as manager of the joint family, and reliance is placed on the cases quoted at p. 848 of Mulla's Civil Procedure Code (8th Ed.). The plaintiff relies on the view of the law laid down in Suraj Bunsi Koer v. Sheo Proshad Singh (1878) L.R. 6 IndAp 88 and Doulut Ram v. Mehr Chand . As regards defendant No. 2, it is contended, that she is not a necessary party because although in her first letter of August 14, 1925, she claimed that she had been in possession, there are subsequent letters of September 16, 1925, in which it is asserted that defendant No. 1 alone was in possession.
3. Dealing with the question as regards defendant No. 1, in the first instance, it is necessary to state clearly the facts as they appear to me to which the law has to be applied. In the case of a document such as the mortgage now in question, there are three possible cases which may arise. Firstly, those where the interest of a coparcener is expressly included or excluded. Secondly, those where it is neither explicitly included or excluded. Thirdly, those where there is no mention of the property being joint family property, or of the existence of any coparcener at all other than the executing party.
4. The first class presents no difficulty. As an instance of the second I might refer to Dayanand v. Daji : (1926)28BOMLR1082 , The present case, in my opinion, falls in the third category. The defendants rely on certain words in the conveyance, viz., 'the right, title and interest, claim and demand, whatsoever of the said Nandlal.' The document, however, read not by single phrases, but taken as a whole, is in the usual form of a mortgage passed by an exclusive owner. Nowhere is there mention of the fact that the property is joint family property, or any reference to a coparcener, even to the son Inderlal. .
5. As regards the consideration and the dealings, I am of opinion that Nandlal and his son Inderlal were carrying on a joint family business. The inclusion in it of Nandlal's natural brother Ramcoover is further proof, if needed, and even points towards an ancestral joint family business, though as to its ancestral nature there is no such clear evidence as to justify a finding in favour of the plaintiff. However, this joint family business, though not proved to be ancestral, was carried on by Nandlal with his natural brother Ramcoover given in adoption and his son Inderlal, and became indebted to Maganlal and Uderam. And in order to pay them off Nandlal executed the mortgage in suit, and executed it representing himself as the sole owner and concealing from the plaintiff the existence of the share of minor defendant No. 1, whose age at the date of the suit is given as thirteen, and therefore at the date of the mortgage would be about six. As Inderlal is not a party to this suit it is not necessary to express any opinion in regard to his interest but only as to how far on these facts the interest of defendant No. 1 still remains, or whether it has been comprised in the sale to the plaintiff. It is not denied that the amount advanced by the plaintiff went to repay Uderam and Maganlal.
6. That it would have been open to Nandlal to say that it was the joint family property and to mortgage not merely his own interest but also that of defendant No. 1 in order to pay off the antecedent debt, cannot be and is not questioned in view of the law as laid down in Brij Narain v. Mangla Prasad correcting the view of antecedent debts previously enunciated in Sahu Ram Chandra v. Bhup Singh (1917) L.R. 44. IndAp 126 19 Bom. L.R. 498. The question in this suit is, whether, because Nandlal instead of so doing purported to represent himself as sole owner and to mortgage his entire interest, concealing the existence of defendant No. 1 and defendant No. l's interest, whether this conduct of Nandlal saves the interest of defendant No. 1 in the present suit In considering this question, considerations of logic are out of place and indeed misleading; for on a question of this kind in Hindu law, as their Lordships of the Privy Council have observed in Brij Narain v. Mangla Prasad, referred to above, the law on the subject is somewhat illogical.
7. From the stand-point of equity, it might be said for the plaintiff that he could hardly ascertain the existence of a grandson of six and that he would not have advanced on or purchased a one-third interest. For the defendant No. 1 it could be argued that the misrepresentation of a grand father and of a manager should not result in a loss to a minor coparcener of his own interest.
8. As regards the actual intention of Nandlal, it follows from what I have said, not only that he had no intention of leaving out unburdened the interest of defendant No. 1, but that he went even further and purported to be the sole owner himself. As far as the intention goes, therefore, it was not his intention to mortgage his own interest alone and to leave the interest of defendant No. 1 unburdened. I am unable to accept the contention for the defendant No. 1 that his absence from the mortgage, the suit, and execution proceeding, does not render his share liable. Mere absence in such cases does not suffice. In the case of Doulut Ram v. Mehr chand(1) the two managers had concealed the existence of the other coparceners and passed a mortgage purporting to be themselves the sole owners to the exclusion of everybody else. The plaintiffs offered to prove, but the defendants refused to join issue upon the facts alleged by the plaintiffs showing that the mortgage validly bound the ancestral estate and business. The defendants relied upon their absence in the legal proceedings. It was held by their Lordships that this contention failed, and that the sale passed the whole estate to which it related. I am, therefore, of opinion that the mere absence of defendant No. 1 is not sufficient to enable him to claim his share.
9. The only other question of law which remains for consideration, therefore, is, whether because in this case it is proved that the mortgage was to pay off antecedent debts in the joint family business due from Nandlal and Inderlal, but the business is not proved to be ancestral, whether, this single circumstance suffices to free defendant No. 1's share. According to the law as laid down in Brij Narain v. Mangla Prasad I am of opinion that it does not so suffice. The mortgage was such that it could validly bind the entire interest including the interest of defendant No. 1. The manager ignoring the existence of defendant No. 1 purported to be the sole owner and to mortgage his entire interest. Therefore, as in the case of Doulut Ram v. Mehr Chand, the sale in execution of the mortgage passed the entire estate including the share of defendant No. 1. This disposes of the case in so far as it relates to defendant No. 1.
10. As regards defendant No. 2, for all practical purposes, the issue is not of very great significance, Both the defendants are represented throughout by the same attorneys and by one counsel, defendant No. 2 having only put in a separate written statement. On the whole, seeing that it was defendant No. 2 who at first claimed possession and that defendant No. 1 being a minor it was she who afterwards was asserting the rights opposed to those of the plaintiff, I am of opinion that it was open to the plaintiff to implead her pro majore cautela.
11. Decree for the plaintiff in terms of prayers (a), (b) and (c) of the plaint.
12. As regards compensation, the parties agree that defendant No. 1 should pay at the rate of Rs. 200 per month from September 24, 1925, until possession. The defendant to pay this amount to the plaintiff accordingly.
13. Defendant No. 2 does not claim any separate interest of her own. The suit as against her fails.
14. Defendant No. 1 to pay plaintiffs costs of the suit. Defendant No. 2 to pay her own.
15. On the slender materials before me, I am of opinio that the amount of compensation agreed upon is fair, in view of the delay and the costs of further proceedings in this Court or a reference to the Commissioner. I, therefore, sanction the compromise as to compensation so far as regards the minor defendant No. 1 under Order XXX, Civil Procedure Code.