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Jamna and ors. Vs. NaIn Sukh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1887)ILR9All493
AppellantJamna and ors.
RespondentNaIn Sukh and ors.
Excerpt:
.....bond was given or to show that any inquiry bad been made by them. these are cases that seem to me to afford no safe guide, because, where a decree was obtained against the father, and a sale effected, the presumption is that the decree was properly made. that fact, to my mind, naturally lessens the authority of that case, so far as it may apply to a case like the present. the case is, however, important as affording an indication on which side the onus of proof would lie in a case like this. it is good sense and a general rule that a creditor endeavouring to enforce his claim under a bond given by a hindu father against the estate of a hindu family in respect of money lent or advanced to the father having only a limited interest should, if the question is raised, prove either that the..........parties (the defendants) were concerned. the single question before us is as to upon whom the onus of proof lies. pandit ajudhia nath hand mr. ram prasad have contended that the onus of proof was on the defendants, and that their clients, the plaintiffs, were entitled to succeed, unless it was shown that the bond was given for ill gal or immoral purposes. in support of this contention, they cited the following cases: narayanacharya v. narse krishna i. l. r., 1 bom., 262, luchmun dass v. giridhur chowdhry i. l. r., 5 cal, 855 ; gunga prasad v. ajudhia pershad singh, i. l r., 8 cal., 131; girdharee lall v. kantoo lall, l. r., i i. a., 321; sita ram v. zalim singh, i. l. r' 8 all., 231; nanomi babuasin v. modun mohan, l. r., 13 i. a., 1:1 l. r., 13 cal., 21 ; rampardip rai v. salig.....
Judgment:

John Edge, Kt., C.J.

1. In this case, the plaintiffs sued the sons upon an hypothecation bond which was given by their father. The family was a joint Hindu family. The plaintiffs gave no evidence as to the circumstances under which the bond was given or to show that any inquiry bad been made by them. The defendants, on the other hand, have given no evidence as to the circumstances under which the bond was given. In both Courts, the Judges decreed the claim so far as the father's interest in the property was concerned and dismissed the claim so far as the interests of the other parties (the defendants) were concerned. The single question before us is as to upon whom the onus of proof lies. Pandit Ajudhia Nath hand Mr. Ram Prasad have contended that the onus of proof was on the defendants, and that their clients, the plaintiffs, were entitled to succeed, unless it was shown that the bond was given for ill gal or immoral purposes. In support of this contention, they cited the following cases: Narayanacharya v. Narse Krishna I. L. R., 1 Bom., 262, Luchmun Dass v. Giridhur Chowdhry I. L. R., 5 Cal, 855 ; Gunga Prasad v. Ajudhia Pershad Singh, I. L R., 8 Cal., 131; Girdharee Lall v. Kantoo Lall, L. R., I I. A., 321; Sita Ram v. Zalim Singh, I. L. R' 8 All., 231; Nanomi Babuasin v. Modun Mohan, L. R., 13 I. A., 1:1 L. R., 13 Cal., 21 ; Rampardip Rai v. Salig Rai, Weekly Notes, 1883, p. 107; PonnappaPillai v. Pappucayyangar, I. L E., 4 Mad., 4;. and see I. L. R., 9 Mad., 343, Gangulu v. Ancha Bapulu I. L. R., 4 Mad., 73 ; Hanuman Singh v. Nanak Chand I. L. R., 6 All., 193. With regard to the cases cited, with the exception of two, to which I will refer, they do not, appear to bear out the proposition contended for on behalf of the plaintiffs They are cases in which a decree had been obtained against the father, and the property sold, or cases in which the sons had come into Court to ask for relief against the act of their father. These are cases that seem to me to afford no safe guide, because, where a decree was obtained against the father, and a sale effected, the presumption is that the decree was properly made. Where a son comes into Court to ask relief against a sale effected by his father for an antecedent debt, it, would be for the son to make out a case for the relief asked for. I approve of everything which was said by my brother Straight in his judgment in Hanuman Singh v. Nanak Chand I. L. R., 6 All., 193. As to the case of Sita Ram v. Zalim I. L. R., 8 AIL, 231, it would appear, until examined, to be in point. The difficulty with regard to dealing with that case as an authority is that it was a first appeal to this Court, and it does not appear what the findings of fact of this Court in that case were. It is true that the findings of fact of the Judge of the Court below were referred to in the judgment of this Court. We must assume that this Court, as a Court of first appeal, found facts to which the proposition of law contained in the judgment at p. 234, was applicable. Then I come to the case of Luchmun Das v. Giridhur Chowdhry I. L. R., 5 Cal, 855. That is a most important case. It was on the authority of that case that the eminent Judge, Mr. Justice Mitter, decided as he did in the case of Gunga, Prasad, v. Ajudhia Pershad Singh, I. L. R , 8 Cal., 131. Now as to the case of Luchmun Dass v. Giridhur Chowdhry I. L. R., 5 Cal., 855, it is difficult to ascertain what the facts were, or what was the precise form of litigation. This alone is certain, that there were certain questions which appear at p, 857 of the report, which were referred to a Full Bench. The answers to these questions are found at p. 863, and taking the first question and answer as an example and as those relied upon by Pandit Ajudhia Nath here, it is to be observed that the Judges, in giving their answer, have assumed a most important fact which is not suggested in the question. The same observation applies to others of the questions. They have assumed that the debt contracted by the father was an antecedeut debt within the rulings of the Privy Council. It is unfortunate that the full facts of that case do not appear in the report. Now with regard to the case of Gunga Prasad v. Ajudhia Pershad Singh I. L. R., 8 Cal., 131, the judgment of Mr. Justice Mitter and Mr. Justice Maclean is based upon the Full Bench decision in Luchmun Das v Giridhur Chowdhry I. L. R., 5 Cal., 855, above referred to. That fact, to my mind, naturally lessens the authority of that case, so far as it may apply to a case like the present. Now on the other side, Pandit Sundar Lal for the respondent relied on three cases. The first was a judgment of the Full Bench of the Calcutta Court delivered by Sir Barnes PEACOCK, C.J.,- Madhoo Dyal Singh v. Golbur Singh 9 W. R., 512, in which the Pull Bench dealt with the onus of proof as to the application of the purchase-money. The son in that case contended that the money borrowed by the father was not for legal necessity. The Full Bench laid down a stronger rule of law than has since been acted upon. The case is, however, important as affording an indication on which side the onus of proof would lie in a case like this. The next case is Bheknarain Singh v. Januk Singh I. L. R., 2 Cal., 438. In that case the Court, which was composed of Mr. Justice Jackson and Mr. Justice White, applied to a case similar to the present, the principle of law to be found in the judgment of Lord Justice Knight Bruce in the case of Hunoomanpersaud v. Mussummat Babooe, 6 Moo. I. A., 393. In my opinion the rule of law applied in the case of Bheknairan Singh v. Januk Singh, I. L. E., 2 Cal., 438, applies also in this case. I think the same rule of law may be deduced from the judgment of this Court in Lai Singh v. Deonarain Singh I. L. R., 8 All., 279. It appears to me that, the, authorities cited by Pandit Sundar Lal govern this case. It is good sense and a general rule that a creditor endeavouring to enforce his claim under a bond given by a Hindu father against the estate of a Hindu family in respect of money lent or advanced to the father having only a limited interest should, if the question is raised, prove either that the money was obtained by the father for a legal necessity, or that he made such reasonable enquiries and obtained such information as would satisfy a prudent man that the loan was contracted to pay off an antecedent debt, or for the other legal necessities of the family. He is the person who would know, or ought to have known, the circumstances under which he parted with his money on the security of the property of the Hindu family, and, in such a case as the present, it is only reasonable that the onus of proof should fall on him. Since no evidence on this point has been given, I am of opinion that the appeal should be dismissed with costs.

Mahmood, J.

2. I concur.


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