1. This is a second appeal by the plaintiff against concurrent decrees of the two lower Courts. The plaint sets out that the plaintiff was a mortgagee under a simple mortgage from Pancham deceased, and his minor brother Ram Dayal,. dated 6th August 1928. These two mortgagors were sons of Har Prasad, defendant 1, who is still alive. The property mortgaged was a house. Para. 3 of the plaint sets out:
Pancham, the principal mortgagor, is dead, defendant 1. the father, and defendant 2, the brother, are the heirs in possession of the property left by the deceased and are liable to pay the debt claimed.
2. The defence taken on behalf of Har Prasad and the minor Ram Dayal, was that Pancham was not the owner of the House and had no right to mortgage the house, and that the house had been exclusively acquired by Har Prasad out of his own funds. The trial Court found that the house in question had been bought by a sale deed of 16th March 1925 in favour of Pancham and Ram Dayal minor, but that it was true that Har Prasad had an ancestral house which he sold by a sale deed of 4th December 1917 and there was therefore, nucleus of the joint ancestral property and the presumption was that the two defendants and Pancham formed a joint Hindu family and that the house, which was mortgaged to the plaintiff was purchased from the joint family funds and was the property of the joint family. Accordingly the trial Court gave a decree in favour of the plaintiff for recovery of Rs. 1,000, the amount of mortgage money, with costs and future interest, against the assets of Pancham, deceased in the hands of the two defendants, and the house was exempted as the Court held that it could not be legally mortgaged by Pancham. The plaintiff filed an appeal claiming, (ground No. 1) that the house belonged to Pancham and his brother as self-acquired property, and (para. 2) that the plaintiff got the mortgage deed executed bona fide from the ostensible owners, that defendant 1 was estopped from pleading that Pancham had no right to mortgage the house, that (para. 3) Pancham was at least the 'karta' of the family, that (para. 4) there was no nucleus of the joint family property and that (para. 5) the trial Court ought to have passed a mortgage decree against defendant 1 to the extent of two previous bonds of his which formed part of the consideration. The lower appellate Court agreed with the trial Court. The consideration in the mortgage-deed was made up as follows:
(1) Rs. 650-0-0 left with the mortgagee onaccount of mortgage-deeddated 5th August 1926, exe-cuted by Pancham Lal.(2) ' 54-12-0 left with the mortgagee onaccount of a bond, dated15th March 1928,executed by Har Prasad infavour of the mortgagee.(3) ' 219-0-0 left with the mortgagee onaccount of a bond for Rs. 200 executed by Har Prasadin favour of the mortgagee.(4) ' 76-4-0 paid in cash at the time ofregistration of the bond in suit.
3. The appeal was therefore dismissed. In the second appeal a new ground has been taken on behalf of the plaintiff in ground No. 4, which states:
Because on the facts admitted and found Pancham must be taken to have executed the deed in question with the consent of his father, and this is not a case of a junior member alienating property against the wishes of the manager, but this is a case in which Pancham was equipped with the necessary authority by his father.
4. Now, learned Counsel argued that this ground was contained in the grounds of appeal to the lower appellate Court, but I failed to find any such ground to the lower appellate Court. The case therefore in my opinion, as put forward in second appeal, is entirely a new one. I consider that it would have been necessary for the plaintiff to amend his plaint, if he desired to put forward the case now raised in ground No. 4 of second appeal. He did not do so, and therefore no issue was framed on this point and no evidence on this matter has been led before the Courts below. I think it is too late to raise this point in second appeal, as this is making out an entirely new case for the plaintiff. In this connexion I would refer to the ruling of their Lordships of the Privy Council in M.E. Moola Sons, Ltd. v. Perrin Burjorjee there is a quotation from Connecticut Fire Insurance Co. v. Kavanagh (1892) A.C. 473 at p. 480:
When a question of law is raised for the first time in a Court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to entertain the plea.
5. But in the case in question their Lordships of the Privy Council did not allow the question of registration to be raised when it was mentioned before the Privy Council for the first time. In Ram Kinkar Rai v. Tufani Ahir : AIR1931All35 a Full Bench of this Court held that a point of law not taken in the Court below could not be permitted to be raised in the High Court except in certain cases. The general rule is that where the point which is raised requires new evidence and new findings of fact, the Court of second appeal will not allow it to be raised. In the present case it would be necessary for evidence to be taken on the new ground put forward by the plaintiff and he would be turning the plaint into an entirely different case. For these reasons I think that the case could not be reconsidered, nor could an issue be framed on the new ground which the plaintiff has raised. Apart from that, there is a further objection to the new plea which is put forward in ground No. 4. The doctrine of law which is formulated by the learned Counsel for the appellant is that, where there is a father who is the managing member of a joint Hindu family, a transfer of immoveable property may be made by a junior member if the father has given an oral consent. Now, under the Transfer of Property Act and the Registration Act, for such a consent to be operative in law it would be necessary, in my opinion, that the father should give a registered power of attorney to his son to enable him to execute the deed of transfer. It is not suggested for the plaintiff-appellant that such power of attorney was given by Har Prasad to his son Pancham, and learned Counsel admits that there was no such power of attorney. All that is suggested is that two of the bonds executed by Har Prasad himself in favour of the plaintiff formed part of the consideration of the mortgage-deed in question.
6. The amounts of these bonds were Rs. 54-12-0 and Rs. 219 at the time of mortgage, and therefore the amount was only about one quarter of the consideration of Rs. 1,000. Learned Counsel points out that on the date of execution of the mortgage, 6th August 1928, Har Prasad endorsed on the back of these two bonds that they had been paid, and apparently by this endorsement it was meant that these two bonds, which were simple money bonds, had been paid by the execution of the mortgage-deed in question by Pancham Lal. Learned Counsel referred to a ruling in Ramdas Singh v. Tanak Singh A.I.R. 1928 Pat. 557. That was a case in which on 21st April 1922 there was compromise filed in the civil Court as a family settlement between all the members of the joint Hindu family and that compromise, as stated on p. 558, column 2, required that the junior member, defendant 7, should execute a sale-deed in favour of defendant 1. Accordingly on 27th April 1922 defendant 7 did execute this sale-deed, and possession was taken by defendant 1. Some years afterwards at a date not stated in the ruling a suit was brought by some members of the joint family for a declaration that the sale-deed was illegal, void and inoperative and for recovery of possession. A Bench of the Patna High Court granted the decree that the deed of sale of 27th April 1922, executed by defendant 7 in favour of defendant 1, was void and inoperative against the joint family of the plaintiffs and defendants 6 and 7, and granted recovery of possession to the plaintiffs. The case therefore was a much stronger one in favour of the vendees Of the sale-deed than the present case, because it was executed in accordance with a family settlement which had been filed in Court; but nevertheless the Patna High Court held that the sale-deed was invalid. Learned Counsel for the appellant apparently bases his argument on some observations contained in the judgment but the effect of the judgment is against him. The Court below has referred to Sarju Prasad v. Ramsaran Lal A.I.R. 1931 All. 541 in which a Bench of this Court held:
We also find no authority for the proposition that a junior member of the family can alienate the family property. Where the eldest member is absent, a junior member may become the karta in his place and in that contingency may be equipped with the authority of a karta.
7. The Court below proceeded to find that:
In this case there is no evidence to prove that Har Prasad had authorised Pancham Lai to execute the mortgage-deed in suit.
8. It further found as regards the second point:
The plaintiff has not been able to prove that Har Prasad was incapable of managing the affairs of his family,
and accordingly the Court held on the second point that Pancham Lal was not the karta or manager of the joint family. There is no doubt this finding was correct, because on the very date of the mortgage-deed Har Prasad was capable of making the endorsement on the two bonds which he owed to the plaintiff. No other ground was argued on the grounds of second appeal. As no authority has been shown by learned Counsel for the appellant that a junior member of a joint Hindu family is entitled to transfer immoveable property merely because the managing member, who in this case was father, orally consents or does not make any objection, I consider therefore that the appellant has failed to show any reason for interference with the concurrent decrees of the two lower Courts. I therefore dismiss the appeal with costs.
9. A cross-objection has been made in regard to costs in the lower appellate Court. The lower appellate Court said : 'As Har Prasad set up false pleas, therefore he is not entitled to his costs,' and the order was that the parties should bear their own costs. Apparently the false-plea was that contained in the written statement that the house in question was the self-acquired property of Har Prasad, and the Court below held that it was the property of the joint family. I see no reason for interference with the order of the lower appellate Court as to costs which was in its discretion. I therefore dismiss the cross-objection with costs. As learned Counsel for the appellant has raised a point of law, I grant permission to file a Letters Patent appeal.