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Gunni and ors. Vs. Dal Chand - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1931All717
AppellantGunni and ors.
RespondentDal Chand
Excerpt:
.....of a, hindu family had no power without especial authority to revive a claim already barred by limitation against the family. both upon principles and upon authority the law seems to as to be perfectly..........favour of the plaintiff for rs. 180 on 28th may 1912, that, on 1st june 1915, this debt had become time barred and that the executants of the bond were not legally competent to bind the joint ancestral estate in consideration of this time barred debt.5. the court of first instance sustained the aforesaid defence in its entirety, and dismissed the suit. the lower appellate court by its judgment, dated 3rd may 1928, which is neither clear nor convincing, has reversed the decision of the trial court, and decreed the plaintiff's suit in its entirety; hence this appeal.6. the mortgage bond in suit contains no recitals as to the necessity for borrowing rs. 73 which was said to have been taken prior to the execution of the document. there is not a scintilla of evidence on the record to show.....
Judgment:

Sen, J.

1. This is an appeal by 7 out of 9 defendants against whom an auction was lodged by Dal Chand, mortgagee for enforcement of a mortgage by sale of the property. The property in dispute belonged to a joint family consisting of Munga Gujar and his sons. We have abstracted the following genealogical table, which may be referred to for the elucidation of the facts of the case:

Amira |Munga = Mt. Mehro (dead)|--------------------------------------------------------------------| | | | | |Chokha Shayma Bhimma Gunni Bhundi (dead) Guttfdeft. 1 deft. 2 deft. 3 deft. 4 =Mt. Risalo (dead)| | deft. 9Tukki deft. 5 | || Bathua deft. 8|--------------------------------------| |Likkhi deft. 6 Khub Chand deft. 7.

2. After the death of Munga, his surviving sons continued as members of a joint family. On 1st June 1915, the mortgage in suit was executed by Chokga. Shyama, Bhimma and Bhundi, adults, and by Mt. Mehro, their mother, for self, and, as mutual guardian of her minor sons, Gutti and Gunni. The mortgage was for Rs. 400 and the stipulated rate of interest was one rupee per cent per mensem compoundable half-yearly.

3. The details of consideration were as follows: (a) Rs. 327, due on a mortgage bond, dated 28th May 1915, which was executed by Munga for Rs. 180 in favour of Dal Chand; (b) Rs. 73, received prior to the execution of the document. In the account annexed to the plaint, the mortgagee admitted that he had received Rs. 203 from the mortgagors some time about the year 1921. The balance sought to be recovered by this suit was Rs. 1,200.

4. Various defences were raised by defendants 2, 4, 8 and 9. Most of these pleas are not material for the purposes of this appeal. The pleas, which call for decision, are that the sum of Rs. 73 said to have been paid, prior to the execution of the document in suit was not supported by legal necessity, and was not obtained for the benefit of the joint family, that there was no bond executed by Munga in favour of Dal Chand, on 28th May 1915, that, as a matter of fact, a simple money bond had been executed by him in favour of the plaintiff for Rs. 180 on 28th May 1912, that, on 1st June 1915, this debt had become time barred and that the executants of the bond were not legally competent to bind the joint ancestral estate in consideration of this time barred debt.

5. The Court of first instance sustained the aforesaid defence in its entirety, and dismissed the suit. The lower appellate Court by its judgment, dated 3rd May 1928, which is neither clear nor convincing, has reversed the decision of the trial Court, and decreed the plaintiff's suit in its entirety; hence this appeal.

6. The mortgage bond in suit contains no recitals as to the necessity for borrowing Rs. 73 which was said to have been taken prior to the execution of the document. There is not a scintilla of evidence on the record to show that this money was borrowed either for legal necessity, or for the benefit of the joint family. The executants of the document therefore were not competent to charge the joint ancestral estate with this amount.

7. The next question, which emerges for decision, is whether Chokga, Bhundi, Shyama, Bhimma and Mt. Mehro were entitled to hypothecate the joint ancestral property in consideration of Rs. 327 due on the bond, dated 28th May 1912, which was executed by Munga in favour of Dal Chand, plaintiff. There is no bond on the record, dated 28th May 1915, alleged to have been executed by Munga in favour of Dal Chand. It has been alleged by the plaintiff that, as a matter of fact, no bond of this date has ever been in existence. The defendants to this action and executants of the bond in suit are illiterate rustics. The Court of first instance was of opinion that the mortgagee had recourse to trickery and had deliberately imposed upon the executants of the document by representing to them that there was a debt due from Munga, under a bond of the year 1915 which was not time barred. The lower appellate Court took a more charitable view of the situation, and was of opinion that, by a clerical error on the part of the scribe, the date or the bond was wrongly written as 28th May 1915, while, as a matter of fact, the correct date was 28th May 1912. The transaction is not free from suspicion, and even if we take the same view as the lower appellate Court, this does not in any way advance the case of the plaintiff. The bond, dated 28th May 1912, was a simple money bond and the claim, on the basis of this bond, was manifestly time barred, on 1st June 1915.

8. It has been strenuously contended on behalf of the defendants-appellants that the executants of the bond were not competent to charge a time barred debt upon the joint ancestral property. It may be conceded that a written promise to pay a debt, which is barred by the statute of limitation, is a good consideration under Section 25 (3), Contract Act. The principle, which underlies this rule is obvious: A person, who is master of his own actions, is competent to voluntarily resign the benefit of a law made for his-own protection. The rule formulated in Section 25, Contract Act, is one of general application. If the executants of the bond were by themselves the exclusive owners of the joint ancestral property, there was no legal bar to their executing the mortgage bond in suit in consideration of their father's debt which had become time barred. Where a Hindu joint family is possessed of joint ancestral property, and consists of adult male members as also minor members, the powers of the manager to transfer the joint ancestral property are very much restricted. The powers of the father of the family in such cases have to be differentiated and distinguished from those of the manager or karta of the joint family. There may be cases where the father himself is the karta but cases are not rare, and, indeed, are very numerous in which the karta of the family is not the father. In Gajadhar v. Jagannath A.I.R. 1924 All. at p. 551, (Full Bench) it has been ruled that where a joint family consists of the father, sons and grandsons, the father can revive a time barred debt payable by himself, and transfer joint ancestral property for payment of the said debt. The ratio for the decision has been set out in the judgment of one of the learned Judges in the following terms:

If a Hindu widow can validly alienate to pay time barred debts due by her husband, a Hindu father can similarly alienate property to pay the time barred debts due by him in order to release himself from the sin of having left them unpaid, so as to bind his sons and grandsons. In Skib Nath v. Alliance Bank of Simla [1914] 5 P.R. 1915 it was accordingly held that, under the Hindu law, the payment of a debt due by the father, though time barred, was a pious duty, and such a debt was a good antecedent debt however old it might be. A debt, which was barred by time and has been revived, stands on the same footing as a debt which is not time barred; and if it is enforcible against the father, it is also enforcible against his sons and grandsons, provided it was not taken for an illegal or immoral purpose. An alienation made to pay such a debt is therefore valid, and can bind the interests of the sons and grandsons of the persons making the alienation.

9. We are bound by this decision. The case of the Hindu father however is clearly distinguishable. The Hindu father has the power to revive a time barred debt and can charge the joint family estate provided that the debt is antecedent or incurred for family necessity; every other consideration must give way before the consideration affecting the pious obligation of the Hindu sons to discharge their father's debt. The manager of the joint family cannot transfer the family property for payment of any antecedent debt due from him. If there is no legal necessity or benefit to the family, the transfer cannot be supported. In Hunooman Pershad v. Mt. Babooee Munraj Koonwaree [1854-57] 6 M.I.A. 393, the powers of the manager for an infant heir have been defined and described in the following terms, (p. 423):

The power of the manager for an infant heir to charge an estate, not his own, is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded.

10. In Lachman Prasad v. Samara Singh A.I.R. 1917 P.C. 41 it was held that

a mortgage of the joint family property of Mitakshara family by its karta', unless necessity or an antecedent debt is proved, is void and that the transaction itself gives to the mortgagee no rights against the karta's interest in the joint-family property.

11. This is an authoritative pronouncement in support of the proposition that, where the debt has not been incurred for family necessity, and is not an antecedent debt according to its technical meaning, the karta is legally incompetent to bind the joint ancestral estate even to the extent of his undivided interest therein, for the payment of the said debt. The same principle appears to have been enunciated in Anant Ram v. Collector of Etah A.I.R. 1917 P.C. 188 and it was held that

where the debt was not incurred for family necessity, the interest of the manager of the family with respect to mortgages in the province governed by the Mitakshara could not be sold in enforcement of the mortgage.

12. In a converse case, Venkata Row v. Tulja Ram Bow A.I.R. 1922 P.C. 69 (at p. 98 of 49 I. A.) their Lordships observed that

If it (the arrangement) failed so far as the infant was concerned their Lordships think that in the events that have happened it must also be regarded as failing wholly to convey any of the joint estates at all. They have arrived at the conclusion for this reason. Raja Ram Row, unless he was attempting to divide the joint family, could only deal with this property with the consent of his son or in his capacity of as manager of the estate. In his capacity as manager of the estate he was only able to deal with it for certain limited purposes, and none of those purposes are, or can be, suggested as the consideration why these considerable sums were released.

13. We have therefore to bear in mind the following facts : (1) The mortgage bond in suit was substantially executed for payment of a time barred debt due from Munga. (2) Munga, the father, had not in his lifetime revived the aforesaid-debt or executed the bond in suit in consideration thereof. (3) The debt was sought to be revived by four of the adult; sons, namely, Chokha, Bhundi, Shyama and Bhima and by Mt. Mehro, mother of the two infant sons, Gutti and Gunni. (4) A guardian of the property of an infant cannot properly be appointed in respect of the infant's interests in the property of an undivided Mitakshara family : vide Charib Ullah v. Khalak Singh [1903] 25 All. 407. Mt. Mehro, widow of Munga, in her capacity as mother, was the natural guardian of Gutti and Gunni, but she had no locus standi to represent the estate of the minors which was a joint and undivided estate. (5) Assuming that the karta of this joint family is to be found in the person of one of the four adult sons, who joined in the execution of the mortgage bond in suit, the said karta did not support to hypothecate the ancestral property on behalf of the minors. But having joined Mt. Mehro in the execution of the document, he may be taken to have acquiesced in the transfer of the property for payment of the debt in dispute. In Charib Ullah v. Khalak Singh [1903] 25 All. 407, which has already been referred to, it was held by the Judicial Committee that where the karta of an undivided Mitakshara family with the concurrence of the adult members of the family had mortgaged for necessity, family property, for family purposes, there could be no objection to the validity of the mortgage deeds as against all the members of the family on the mere ground that one of the brothers was a minor and that one of the deeds was executed by his mother as guardian with the sanction of the Court, as required by Act 40 of 1858, Section 18, and Act 8 of 1890. Sections 29 and 30.

14. In the present case the mortgage bond in suit was not executed either for legal necessity or for the benefit of the family. The revival of a time barred debt during the minority of Gutti and Gunui did not confer any benefit upon the joint family or upon the estate possessed jointly by the minors and the four adult brothers. Had Munga been alive he could have bound the estate of his sons and grandsons for payment of a time-barred debt which was due from him. But in a joint family which is composed of certain adult and certain minor members, the karta of the family is not competent to charge the ancestral estate with a debt which had become time barred. In Gopal Narain Maoozamdar v. Muddomutty Guptee [1875] 14 Beng. L.R. 21 Sir Richard Couch is reported to have observed as follows:

Having disposed of these minor objections we come to consider whether any of the debts intended to be secured by the mortgage were at that time, barred by the law of limitation. This objection arises on the plaintiff's case; it is not an objection, which the defendants had to take in their written statements, or by way of defence to the suit. The onus was on the plaintiff to prove that the mortgage was a valid one; and if it appeared upon the evidence that some of the debts were barred, the case would not come within the requirements that the mortgagee should be made to pay off a subsisting charge upon the property.

15. The principle enunciated herein is applicable mutatis mutandis to the facts of the present case. In Chinnaya Nayudu v. Gtirunatham Ghetty [1882] 5 Mad. 169 (F.B.) it was held by a very strong Court that the manager of a, Hindu family had no power without especial authority to revive a claim already barred by limitation against the family. In Babu Sadhu Saran Prasad Singh v. Barahmdeo Prasad Singh A.I.R. 1921 Pat. 99 a Bench of the Patna High Court ruled that a manager of a joint Hindu family had no power whatever to enter into any agreement to pay a statute barred debt.

16. In Jhabhu Ram v. Bahoran Singh : AIR1926All243 Sulaiman and Mukerji, JJ., held that a mere manager of a joint Hindu family, as distinguished from the Hindu father, had no power to alienate the property in lieu of a time barred debt and that an alienation could not be said to be supported by legal necessity where the legal remedy to recover the debt had already become time barred. Both upon principles and upon authority the law seems to as to be perfectly clear. Where a joint Hindu family consists of major and minor brothers, the alienation of the joint ancestral property during the minority of some of the members of the family for payment of a time barred debt due from the deceased father is unjustified as being neither for the benefit of the family nor supported by legal necessity. We accordingly allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with costs throughout including in this court-fees on the higher scale.


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