1. This is a second appeal by the plaintiff in a suit to enforce a simple mortgage made by defendant-respondent 1 in favour of the plaintiff's predecessor-in-title, defendant-respondent 8. Defendants 2 and 3 are the sons of defendant 1, the mortgagor, and defendants 4 to 6 are his nephews. Defendant-respondent 7 was impleaded in the suit as a subsequent transferee, but the trial Court found that he was a prior transferee and the mortgage in favour of the plaintiff is subject to the rights of defendant-respondent 7. The mortgage-deed was for Rs. 125 and was executed on 29th March 1921. The plaintiff, appellant purchased the mortgagee rights of the original mortgagee, defendant 8, in execution of a decree on 10th July 1928. In para. 3 of the plaint the plaintiff alleged that defendants 1 to 6 are members of a joint Hindu family and defendant 1 is the head and manager of the aforesaid family. It was further alleged that the loan was taken and the bond in suit was executed by defendant 1 as head and manager of the joint family of defendants 1 to 6 for lawful family necessity and for the benefit of the family and that defendants 2 to 6 had also benefited by the loan and were liable to repay it.
2. The property mortgaged consists of a zamindari share in a village. The suit was brought on 28th March 1934 just within twelve years from the date the mortgage money became payable. Defendants 1 to 6 did not enter appearance. The suit was contested only by defendant 7. He denied execution of the mortgage bond in suit as well as its consideration. He further denied that it was executed for legal family necessity. Another plea raised by him in defence was that he had purchased in auction sale-the rights of a mortgagee in respect of a charge which was prior to that in favour of the plaintiff. On the pleas raised by defendant 7 the trial Court of the Munsif framed six issues one of which was whether the deed in suit was executed for legal necessity, and on this issue the Court found against the plaintiff and in the result dismissed the suit. The plaintiff thereafter appealed to the Civil Judge of Jaunpur, impleading defendant 7 also as a respondent, but on the day of hearing of the appeal exempted this defendant from the claim, admitting that he is a prior transferee. The lower Appellate Court then proceeded to decide the question whether the bond in suit was executed for legal necessity and after considering the evidence endorsed the finding of the trial Court that the appellant had failed to prove legal necessity and dismissed the appeal.
3. In second appeal before me it is contended on behalf of the plaintiff-appellant, that the mortgage-bond in suit being only voidable and none of the members of the family who were parties to the suit having appeared to contest the alienation on the ground that it was not for legal necessity, the Courts below were not required at all to enter into the question of legal necessity and should have decreed the entire claim. In support of this contention learned Counsel has relied upon the case in Jageshar Pande v. Deo Dat Pande (1924) 11 A.I.R. All. 51 in which it was held that an alienation of family property made by the manager of a joint Hindu family is not absolutely void. In that case the son who had a right to challenge an alienation by the father by way of gift had not challenged it during the father's lifetime and the question was whether the reversioner had a right to challenge it. The ratio decidendi of the ruling was that the interests of the plain, tiffs reversioners were in no way affected by the deed of gift when it took place and they had no right in the property during the lifetime of either the father or the son and it would be giving a great and unwarranted extension to the rights of reversioners to allow them the right to challenge an alienation under the circumstances found in that case. The case cited by learned Counsel for the appellant is not the only case in which a Division Bench of this Court has held that an alienation of family property made by a manager of a joint Hindu family is not absolutely void. The same view was taken in the later case in Madan Lal v. Gajendrapal Singh : AIR1929All243 and the case in Madan Lal v. Chiddu : AIR1930All852 . Sen and Niamat Ullah JJ. observed that:
On the authorities of this Court, it must be accepted as settled 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....
4. They did not however decide the question themselves. The view taken in the cases referred to conflicts with the decision of their Lordships of the Privy Council in Lachhman Prasad v. Sarnam Singh (1917) 4 A.I.R. P.C. 41, in which it was held that a mortgage made by some of the members of a joint Hindu family governed by the Mitakshara law without the consent of their coparceners is void if it was not for antecedent debt or for any proved necessity of the joint family. It may be noted that it was expressly argued before their Lordships of the Privy Council that the mortgage in that case was not void but only voidable. See also the case in Munna Lal v. Karu Singh (1919) 6 A.I.R. P.C. 108. The decisions of the Division Benches referred to above are also not in accordance with the Full Bench decision of this Court in Chandradeo Singh v. Mata Prasad (1909) 31 All. 176 in which it was held that the father of a joint family governed by the Mitakshara law cannot execute a mortgage for the joint family property which will be binding on his sons where the loan is not obtained for family necessity or to-meet an antecedent debt, and further that a creditor suing to enforce a mortgage executed by the father in a joint Hindu family for the joint family property is bound to prove that the loan secured by such mortgage was taken to satisfy an antecedent debt or was justified by some family necessity or at least that he had before advancing, the loan made inquiries which reasonably led to the belief that the loan was required for family necessity or to pay off an antecedent debt. It was further held by a majority of the Judges that in such a case where the mortgagee has failed to prove antecedent debt or family necessity the mortgage could not be enforced against the sons' interest in the joint family property. Mulla in his Hindu Law comments as follows on the decisions of the Division Benches referred to above (p. 315, Edn. 7):
Notwithstanding the Privy Council rulings cited in the preceding paragraph in particular the case in Lachhman Prasad v. Sarnam Singh (1917) 4 A.I.R. P.C. 41 and a Pull Bench ruling of the Allahabad High Court in Chandradeo Singh v. Mata Prasad (1909) 31 All. 176, that an alienation made by a coparcener neither for legal necessity nor for the payment of an antecedent debt is void, it has been held by some Division Benches of that Court that the alienation is voidable and not void. But since on principle a Division Bench of a High Court is bound by a Full Bench ruling of that Court, the rule of law in Allahabad may be taken to be as stated in the preceding paragraph.
5. The rule of law stated by Mulla in the preceding paragraph is that:
Where a member of a joint family governed by the Mitakshara law as administered in Bengal and the United Provinces sells or mortgages the joint family property or any portion thereof without the consent of his coparceners, the alienation is wholly void unless it was for legal necessity, or for payment by a father of an antecedent debt, and it does not pass the share even of the alienating coparcener.
6. I do not think, it can be disputed for one moment that the law is that the manager of a joint Hindu family has power to alienate for value joint family property so as to bind the interests of both adult and minor coparceners in the property provided only if the alienation is made for a legal necessity or for the benefit of the estate, and further that where money has been borrowed by the manager on the representation that it is required for a family purpose or for family business and the lender weeks to render the whole family property including the shares of other members of the family liable for the debt, he is not untitled to a decree against the whole family property unless he shows that there was a necessity for the loan or that he had made reasonable inquiry as to the necessity for the loan and that the facts represented to him were such as, if true, would have justified the loan. In so far as the cases decided by the Division Benches conflict with the decisions of the Privy Council and with the Pull Bench case in Chandradeo Singh v. Mata Prasad (1909) 31 All. 176 the authority of which still remains unshaken, I am bound to follow the latter.
7. In the present case the plaintiff sought to bind the interests of the sons and nephews in the mortgaged property and he came to Court with express allegation that the mortgagor had taken the loan for lawful family necessity and the other coparceners had benefited by the loan. The burden thorefore clearly lay upon the plaintiff to prove his allegations, and if he failed to prove them it must be held on the authority of the Pull Bench case in Chandradeo Singh v. Mata Prasad (1909) 31 All. 176 that he could not get a decree against the joint family property and the interests of the coparceners who were no parties to the mortgage. Even though these coparceners did not come forward to plead want of legal necessity, I think the Court could not pass a decree against their interests unless and until it was satisfied that the loan had been taken for family necessity or that the mortgagee had made reasonable inquiry as to the necessity for the loan. It may be noted that the mortgage deed contained a recital that the money was borrowed partly for payment of taqavi dues and partly for household expenses. Only one witness was produced in the trial Court by the plaintiff to prove his allegation about legal necessity. That witness stated that the money was borrowed for payment of taqavi loan and that the only reason why the witness was saying so was that the executant of the mortgage bond had so informed him. Both the lower Courts rejected this evidence as wholly insufficient to prove the alleged legal necessity, and their finding of fact cannot be challenged in second appeal. It has been urged that the scribe and one attesting witness to the mortgage bond are dead and the whereabouts of the second attesting witness are not known and the plaintiff is a purchaser in auction sale of the rights of the original mortgagee who is a female and therefore the plaintiff could not be expected to produce better evidence on the point than he did. I am afraid these are not sufficient grounds for accepting the evidence of one witness whose testimony has been rejected by the two lower Courts.
8. Further it may be observed that the plea of want of legal necessity was expressly raised by defendant 7 who was impleaded us a defendant on the ground that he was a subsequent transferee by auction-purchase. I do not think the plaintiff could, after the trial Court had found against him on the question of legal necessity, get rid of the effect of that finding by exempting defendant 7 in the course of the proceedings in appeal and asking the lower Appellate Court to vacate the finding against him on the ground that defendant 7 having been exempted from the decree and defendants 1 to 6 not having entered appearance in. order to contest the plaintiff's allegation about legal necessity the mortgage must be held binding on the sons and on their interests in the joint family property. For the reasons stated above, I am of opinion that the decision of the Courts below is correct and the suit of the plaintiff was rightly dismissed. This appeal therefore fails and is dismissed with costs. Defendant-respondent 7, who was discharged in the lower Appellate Court, has been unnecessarily made a respondent, in this appeal. So he must have his costs of this appeal from the plaintiff-appellant. Leave to file Letters Patent appeal is granted.