1. This is a defendants' appeal arising out of a suit for the enforcement of a simple mortgage dated 21st March 1922 executed jointly by Lakhan Singh and his son Bijai Bahadur in favour of the plaintiff Ram Saran Lal for Rs. 4,700 with interest at 2 per cent per mensem compoundable every six months. The properties mortgaged were the entire villages Deotra and Amaipur-Sanda as well as a house which is no longer in dispute in appeal. The plaintiff urged that the mortgage had been executed for legal necessity and in order to pay off a previous antecedent debt, and was therefore binding on the family. The suit; was contested on two main grounds, first that it was made during the pendency of the previous attachment, and secondly that it was made while the Collector was in charge of the property under Schedule 3, Civil P.C.
2. The learned Subordinate Judge has come to the conclusion that the estate of Lakhan Singh was in charge of the Collector on the date of the mortgage and that therefore Lakhan Singh was not competent to dispose 'of the property; but he has held that Bijai Bahadur was not disqualified on that account and his interest in the mortgaged property was liable.
3. Some of the defendants, who have purchased fractional shares in the two villages, to be specified hereafter, have appealed. There is no cross-objection by the plaintiff.
4. The appeal therefore is confined to 4 biswas share in village Deotra which had been purchased by the appellant Sarju Prasad in execution of a simple money decree No. 14 of 1921, and to 59/201 share in Amainpur-Sanda which was purchased by the appellant Bishambhar Nath in execution of a decree No. 40 of 1921.
5. The facts of this case and the previous history of the various items are somewhat complicated but they have been set forth in detail by the learned Subordinate Judge. For the purposes of this appeal it would be necessary to recite only a few leading facts.
6. It cannot be disputed now that Lakhan Singh and Bijai Bahadur were members of a joint Hindu family at the time of the mortgage and that the property mortgaged was their joint ancestral property. Bijai Bahadur in his plaint the reliefs of which were incorporated in the decree dated 12th December 1923 took up the position that the properties were joint ancestral properties of the family. The plaintiff in para. 3 of the plaint also admitted that the mortgage debt in question was contracted by Lakhan Singh as the head and a managing member of the joint family of which he and his sons and grandsons were the members. The mere fact that subsequent to the mortgage Bijai Bahadur filed a suit for the separation of his share which might have had the effect of bringing about separation in the joint status would not alter the position.
7. There were several simple money decrees in execution against Lakhan Singh and some against Lakhan Singh and his sons also. Among these were two decrees in Suit No. 131 of 19.19 and Suit No. 132 of 1919 in favour of Kunj Behari and a decree in Suit No. 132 of 1920 in favour of Sheo Ghulam. There was also a decree No. 14 of 1921 in favour of Kashi Nath and a decree 40 of 1921 in favour of Kake Mal. This last decree was against Lakhan Singh and his two sons.
8. The entire villages Deotra and Amaipur Sanda were attached in execution of Kunj Behari's decree. There was personal attachment in execution of one decree and then an application for rateable distribution in the other. The execution of both these decrees were transferred by the civil Court to the Collector because it was found that the properties attached were ancestral properties. It is not necessary to refer to any debts previous to 21st November 1921 when the execution of the decree was transferred again to the Collector. The record of the Collector has been weeded out and neither party is in a position to produce copies of any papers of that record. But the order sheet of the civil Court shows that the munsarim noted the date of the admission of the papers on the record as being 27th March 1922. It is therefore clear that papers were received in the civil Court on or before 27th March of that year. The mortgage deed in question was executed on 21st March 1922. In view of the pronouncement of their Lordships of the Privy Council in the case of Gaurishanhar Balmuhand v. Ghinnumiya A.I.R. 1918 P.C. 168 it is quite clear that if on the date when the mortgage deed was executed by Lakhan Singh the property was in charge of the Collector and he could exercise or perform in respect of the judgment-debtor's immovable properties any of the powers or duties conferred or imposed upon him by paras. 1 to 10 of Schedule 3, Civil P.O., Lakhan Singh the judgment-debtor or his representative in question was incompetent to mortgage or otherwise charge the property without the permission of the Collector, nor could any civil Court issue any process against such property or part of it in execution of any decree for payment of money. If therefore the Collector was still seized of the case on 21st March 1922 the mortgage by Lakhan Singh was wholly void and inoperative and would not be effective to create a charge on the property. On the other hand, if the Collector had sent the papers to the civil Court and had ceased to be in charge of it then the disqualification would not exist.
9. The finding of the learned Subordinate Judge is clearly against the plaintiff. After discussing various circumstances his final conclusion in his finding on issue 7, which was the material issue on this point, was to the effect that the papers were in charge of the Collector on that date and 'Lakhan Singh was not competent to dispose of the property.'
10. As the learned advocate for the respondents wishes to challenge this finding we think it convenient to deal with this point first before taking up the question which has been decided against the appellant.
11. The documentary evidence on this point is no doubt meagre. This is due to the fact that the Collector's record has been weeded 'out; But it seems to us that when the defendants established that the execution was transferred to the Collector on 21st November 1921 the presumption of law under Section 114, Evidence Act, would be in favour of the continuance of that state of things: vide Section 114, Illus. (d). The mere fact that the plaintiff establishes that the civil Court got the papers on a date subsequent to the material date would not necessarily destroy the presumption. There is no retrospective presumption going backwards from 27th March 1922 which would justify us in presuming that unless the contrary is shown the Collector had sent the papers before ,21st March. In analogous cases of jointness and separation their Lordships of the Privy Council have made it clear that the presumption of jointness continues and is not rebutted by proof of separation at a date subsequent to the material date.
12. The second circumstantial evidence in favour of the defendants is that the only reason why the execution was sent back to the civil Court appears Jo be a request by the decree-holder for a share in the amount which had been deposited in the civil Court. It appears that the Decree No. 132 of 1920 in favour of Sheo Ghulam was not transferred to the Collector because apparently there was no proof in the proceeding relating to it that the property was ancestral. Under this decree both these properties had been attached and were ordered to be sold by the civil Court itself. The sale as indicated by the proclamation of sale took place on 20th February 1922. An application for setting aside the sale was filed on 21st March 1922 by depositing the purchase-money plus the necessary costs et cetera. This was the very date on which the mortgage deed was executed. The mortgage deed itself recites that the money was raised for the purpose of getting the sale set aside. The sale was accordingly set aside after the deposit of this amount. The order is dated 13th March 1922. There can be no doubt that it was to get a share in this deposited amount that Kunj Behari Lal applied to the civil Court after the papers had arrived from the Collector's Court on 27th March 1922 praying that as the judgment-debtor had deposited the entire consideration money in Suit No, 132 of 1920 a rateable amount out of it should be caused to be. realized and in connexion with the remaining amount the paper may be sent to the Collector. This is to-be found in the endorsement on the order sheet of that date. The Court directed this application to be put up for disposal on 1st May 1922, on which date it dismissed the application on the ground that the decree referred to had beers struck off on full payment. It then and there ordered that the papers received from the revenue Court be sent back to that Court for proceeding with the sale.
13. This endorsement undoubtedly indicates that the record had been sent by the Collector to the civil Court shortly before 27th March 1922 because the decree-holder desired a share in the amount deposited in Suit No. 132 of 1920, and that as soon as the application for a rateable share was dismissed the record was immediately ordered to be sent back to the Collector. It is not suggested on behalf of the plaintiff that there was any other reason for the record to come from the Collector's Court to the civil Court. As a matter of fact it should not have come in the ordinary course as the decree was not fully satisfied. If this inference is justified then it will follow that the Collector must have been approached with a request to send the record to the civil Court before 27th March 1922. We know the date of the deposit which was 21st March 1922. This deposit was made just after the execution of the mortgage deed in which the money was raised. It therefore seems that the Collector must have been approached after the execution of the mortgage deed, and that the mortgage deed was executed at a time when the Collector was still seised of the case.
14. A third minor circumstance may also be noted. The Court of the Collector and the Subordinate Judge's Court are situated in the same town of Shahjahanpur. There is no reason to imagine that a long interval of time would take place between the sending of the record by the Collector and the receipt of it by the civil Court. If we refer to a similar proceeding of July 1921 we find from the order sheet that the note made by the munsarim of the date of the admission of papers was identical with the date on which the papers were actually received back from the Collector's Court.
15. Having regard to all the circumstances we are of opinion that the finding of the learned Subordinate Judge that the Collector was still in charge of the properties on 21st March 1922 must be accepted.
16. Lakhan Singh was accordingly not competent to make a mortgage of his interest in Deotra or Amaipur-Sanda. Although the attachment in execution of Decree No. 14 of 1921 was made in 1924 subsequent to the mortgage, nevertheless as the mortgage deed was void the plaintiff is not entitled to enforce it against the purchaser of the share unless it be held that Bijai Bahadur Singh's interest was transferable.
17. As regards Amaipur-Sanda the position of the purchaser is even stronger. Not only was this property in charge of the Collector in execution of the decree in Suit No. 132 of 1919 on the date of the mortgage, but there had actually been a previous attachment of this property in execution of Decree No. 40 of 1921 in pursuance of which a part of the property was purchased by Bishambhar Nath. A mortgage during the pendency of the attachment would therefore also be equally voidable. Thus in this view of the case Lakhan Singh was incompetent to transfer the property to the plaintiff.
18. The ground on which the learned Subordinate Judge has exempted four biswas share in Deotra and 59/201 share in Amaipur-Sanda is that this represented the interest of Bijai Bahadur, who was not disqualified from making the mortgage. The learned Subordinate Judge has thought that the disqualification referred to in para. 11, Schedule 3, Civil P.C., applies to the judgment-debtor only, that is to say, to Lakhan Singh and not to the other members of his joint family like Bijai Bahadur, with the result that Bijai Bahadur was not disqualified from mortgaging his own interest in the family property.
19. There are two serious objections to this view. In the first place, it is not suggested that the decretal amount in Suit No. 132 of 1919 was in any way tainted with immorality or illegality. The decree was against the father Lakhan Singh and could be executed [against his family property. Where the debt is not incurred for illegal or immoral purposes the executing creditor is [entitled to sell the whole of the estate in 'satisfaction of the judgment obtained against the father alone. The mere fact that in the proclamation of sale only the right, title and interest of the judgment-debtor are ordered to be sold would not prevent the whole interest from passing. This is made clear by the pronouncement of their Lordships of the Privy Council in the case of Sripat Singh Dugar v. Maharaja Sir Prodyat Kumar Tagbre A.I.R. 1916 P.C. 220. Thus Kunj Behari was perfectly entitled to attach the whole of the interest be-longing to the family in execution of his decree against Lakhan Singh. That he did attach the whole of the interest admits of no doubt inasmuch as the entire villages were attached and the execution of the decree against the entire villages was transferred to the Collector. The Collector therefore was perfectly justified in selling the whole interest of the family in execution of the decree against Lakhan Singh alone. It is therefore difficult to see how a junior member of the family could be allowed to deal with the property while the Collector was seised of the entire estate and was taking steps to sell the whole estate.
20. In the second place, the exemption of Bijai Bahadur's interest could be justified only on the assumption that he had authority to execute a mortgage of the family property or at any rate of his interest in it. We have already pointed out that it was not plaintiff's ease in the plaint that Bijai Bahadur was a separated member of the family. The learned Subordinate Judge has not based his conclusion on this point, but it has been pressed on behalf of the plaintiff that there is nothing to prevent a junior member of the family from mortgaging the family property in case the karta for the time being is disqualified from transferring it. No reported case has been cited in support of this contention. The case of Mahabir Prasad v. Mahesh Prasad : AIR1930All856 is distinguishable because there the decree had already been passed against the father and the sons and no question as to whether the mortgage was or was not enforceable against the son could arise at that stage. In the present ease the plaintiff is seeking to enforce the mortgage and he cannot do so unless Bijai Bahadur was competent to make it as a junior member of the family.
21. Apart from any question of Hindu law it is patent that to allow a junior member of the family to deal with the family property when it has been placed in charge of the Collector would amount to nullify the provisions of para. 11, Schedule 3, Civil P.C. While the karta as such is prevented from dealing with the property a junior member of the family would be at liberty to mortgage the same and in this way set at naught the power of the Collector to sell it. To accede to the contention of the learned advocate for the plaintiff would therefore lead to this result.
22. 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 the karta. But this is not the case here. Lakhan Singh was on the spot and in the absence of any evidence to the contrary we take it that he was anting as the karta of the family in respect of all those properties, which had not been placed in charge of the Collector. There is no suggestion anywhere that Bijai Bahadur had become the karta of the family and had superseded Lakhan Singh. The mere fact that Lakhan Singh although disqualified from transferring, joined in the transfer and gave his consent to it, would not authorize the junior member to transfer the property.
23. It is also quite clear that so long as the family remained joint the shares of the various members were not defined and separated. Bijai Bahadur had no distinct share in the family properties belonging to him exclusively which he could transfer by means of a mortgage deed. We think that the mortgage by Bijai Bahadur as a junior member of the joint family property must fall to the ground and is not enforceable. Of course if Bijai Bahadur had been a separated member the position would have been just the reverse.
24. The learned advocate for the respondent has urged that the effect of the decree dated. 12th December 1923 is that the share of Bijai Bahadur stands on a different footing and does not go along with the other shares in the family property. There is no force in this contention. The decree in question was passed in a suit brought for a declaration that the joint ancestral properties described in the two schedules attached to the plaint were not saleable in execution of two decrees respectively. The village Dectra alone with other properties had been attached in execution of decree No. 40 of 1921 and 15 biswas of village Amaipur-Sanda had been attached in execution of decree No. 132 of 1919. The decree which was passed in this suit directed that Bijai Bahadur's suit was decreed to this extant only that out of the entire property advertised for sale in execution of a simple money decree No. 40 of 1919 only the rights and interests of the plaintiff which will be determined at the time of partition are not saleable, and that the plaintiff's share in the property advertised for sale in execution of decree No, 132 of 1919 will be saleable to the extent of 2/3rds and unsaleable to the extent of the remaining 1/3rd.
25. As 4 biswas in Deotra have been purchased by Sarju Prasad in execution of decree No. 14 of 1921 and not in execution of decree No. 40 of 1921, there is no res judicata as regards this share. Similarly 59/201 share in Amaipur-Sanda which has been purchased by Bishambhar Nath has been purchased in execution of decree No, 40 of 1921 and not of decree No. 132 of 1919. It is therefore not in any way affected by the decree in Bijai Bahadur's suit mentioned above. We therefore think that the decree is in no way a bar to the defence.
26. The Court below has reduced the rate of interest from the compound rate to the simple rate. There is no appeal, as regards any further reduction in the rate of interest.
27. The other shares in these two villages are not in dispute in this appeal as they have been exempted by the Court below.
28. The mortgage as a charge has been found to be enforceable. There is no suggestion that the debt was not due or that the consideration was not paid. The Court below has also found that the debt was for legal necessity and is fully proved. The suit was filed within six years of the date of the mortgage. The plaintiff therefore is clearly entitled to a simple money decree on the basis of this deed against the mortgagors Lakhan Singh and Bijai Bahadur.
29. We accordingly allow this appeal and modifying the decree of the Court below dismiss the plaintiff's suit also for sale of 4 biswas share in Deotra purchased by Sarju Prasad in execution of decree No. 14 of 1921 as also 59/201 of Amaipur-Sanda purchased by Bishambhar Nath in execution of decree No. 40 of 1921, and in place of it pass a simple money decree for Rs. 4,700 with interest, at 24 per cent per annum simple from 21st March 1922 till the date of suit and thereafter at the Court rate of interest i.e., 6 per cent per annum till realization against Lakhan Singh and Bijai Bahadur. Defendants-appellants will have their costs of this appeal from the plaintiff-respondent Ram Saran Lal who will bear his own costs. The other respondents excepting Lakhan Singh and Bijai Bahadur, who are merely pro forma respondents will bear their own costs and will not be liable to pay the costs of the appellants.