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Amraj Singh and ors. Vs. Shambhu Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1932All632; 140Ind.Cas.509
AppellantAmraj Singh and ors.
RespondentShambhu Singh and ors.
Excerpt:
- - where a pre-emption claim is in reality in the nature of a speculation or is not in the best interests of the family, the action of the manager would be without justification. or there may be a case where a substantial share in he ancestral village has been sold very cheap and its acquisition will bring about a considerable improvement in the comfort and support of the family owning a small share in the village and a better enjoyment of the ancestral share. when satisfied that the acquisition was not speculative, but in the he interests of the family and for its benefit, as well as for the benefit of the family estate, which an ordinary prudent manager would make, it would be open to a court to bold that the transaction is binding on the other members of the family, even though it.....sulaiman, c.j.1. i concur in the conclusion that the mortgage deed in dispute not having been proved to have been for legal necessity or for the benefit of the family, cannot be held to be binding on the defendants.2. it seems to me that the answer to the question is not capable of being stated broadly. on the one hand, it cannot be said that money re mired by the manager of a joint hindu family in order to pay the pre-emption money and costs for the acquisition of fresh property is in all cases without legal necessity or benefit to the family estate, and is therefore always outside the authority of the father. nor can it be laid down, on the other hand, that every manager is entitled to borrow money in order to acquire fresh property by pre-emption. the answer to the question must depend.....
Judgment:

Sulaiman, C.J.

1. I concur in the conclusion that the mortgage deed in dispute not having been proved to have been for legal necessity or for the benefit of the family, cannot be held to be binding on the defendants.

2. It seems to me that the answer to the question is not capable of being stated broadly. On the one hand, it cannot be said that money re mired by the manager of a joint Hindu family in order to pay the pre-emption money and costs for the acquisition of fresh property is in all cases without legal necessity or benefit to the family estate, and is therefore always outside the authority of the father. Nor can it be laid down, on the other hand, that every manager is entitled to borrow money in order to acquire fresh property by pre-emption. The answer to the question must depend on the special circumstances of each case. Where a pre-emption claim is in reality in the nature of a speculation or is not in the best interests of the family, the action of the manager would be without justification. But there may, for instance, be a case where a rival proprietor thing to become a cosharer in the village and thereby causing considerable interference in the management of the family estate, purchases property when it is highly beneficial to the family and the estate, if not actually necessary, to exclude him from the village so as to avoid all future trouble; or there may be a case where a substantial share in he ancestral village has been sold very cheap and its acquisition will bring about a considerable improvement in the comfort and support of the family owning a small share in the village and a better enjoyment of the ancestral share. When satisfied that the acquisition was not speculative, but in the he interests of the family and for its benefit, as well as for the benefit of the family estate, which an ordinary prudent manager would make, it would be open to a Court to bold that the transaction is binding on the other members of the family, even though it is nothing but the raising of a loan on a mortgage of family property for the sake of satisfying the preemption decree.

3. A Full Bench of this Court in the case of Jagat Narain v. Mathura Das : AIR1928All454 considered the previous authorities and came to the conclusion that transactions justifiable on the principle of benefit to the estate are not limited to those transactions which are of a defensive nature. It must be borne in mind that the same original texts have been differently interpreted under the Mitakshara and the Dayabhaga law, the former restricting the manager's power of alienation to a considerable extent, while the latter giving him almost full disposing power. The text of Brahaspati quoted in the Mitakshara, which allows a transfer of immovable property

during a season of distress, for the sake of the family, and specially for pious purposes,

has been commented upon in the Mitakshara. The illustrations given by the commentator need not necessarily be exhaustive and may be illustrative only. They have been responsible for a considerable judge-made law based upon the pronouncements of their Lordships of the Privy Council made from time to time. Taking the words 'for the sake-of the family' literally, the expression may be even wider in scope than the words 'for the benefit of the family.' It is to be remembered that the manager of a joint Hindu family, particularly a father, is not merely like an agent of the other members of the family, but is a coparcener and has full power to manage the family property in the most beneficial manner as a prudent owner would do. He represents the family to the outside world, and authority for his actions is not always to be derived from the consent of the other members of the familt, some of whom may be minors, and therefore incapable of giving a valid consent. The authority of the Pull Bench in Jagat Narain v. Mathura Das : AIR1928All454 is based on previous case law, and is binding on us so long as it is not overruled by their Lordships of the Privy Council or dissented from by a larger Full Bench.

4. I do not think that there is anything in the recent case of the Benares Bank, Ltd. v. Hari Narain which would compel us to hold that the abovementioned Full Bench of this Court has by implication been overruled. In that case the 'theka business started by the manager of the family was not an ancestral business Their Lordships of the Privy Council laid down that the manager of a joint Hindu family has no power to impose upon a minor member of the family the risk and liability of a new business as started by him, and that a new business is not within the purview of verses Nos. 27, 29, Ch. 1 of the Mitakshara, and it makes no difference that the manager starting the new business is the father himself. Their Lordships came to the conclusion that the balance of authority in India is in accordance with this view. This pronouncement conclusively lays down that the money required for a new business started even by the father as the manager of the family, involving as it does a risk and liability on the minor members of the family, cannot justify an alienation.

5. The business in that case was in the nature of taking contracts from the Public Works Department relating to buildings and also some plumber's business, which might have been more or less of a sporadic character and had an element of speculation in it. It had never been suggested on behalf of the Benares Bank that the business had been started for the benefit of the family or that it had been necessary for its support and maintenance, for instance, to save the family from starvation. There is nothing in the judgment of their Lordships of the Privy Council which necessarily goes against the view expressed by the Full Bench of this Court. I am therefore unable to hold that the authority of the Full Bunch has been in any way shaken by this recent pronouncement.

6. Coming to the facts of the case before us, no attempt was made on behalf of the plaintiffs to show that the acquisition of the property by the right of pre-emption was necessary for the family or even that it was for the benefit of the family and the family estate: Both parties appear to have considered as if the question was purely one of law and not a mixed one of law and fact. The learned Subordinate Judge had to record a finding that there was 'DO legal necessity and no benefit of the estate.' In the absence of any such proof, the claim must fail. I would accordingly dismiss the appeal.

Mukerji, J.

7. This case has been referred to the Full Bench. The facts briefly are as follows : Two brothers, Tulshi Prasad Singh and Deonath Singh, brought a suit for pre-emption, being Suib No. 140 of 1917, against Tilakdhari Singh and others. The suit was decreed on condition of payment of Rs. 3,000 as the purchase money to the vendees. The brothers had no money except a sum of Rs. 1,000 and they raised the balance of Rs. 2,000 by mortgaging their ancestral property to some of the plaintiffs and predecessors of others in the suit out of which this appeal has arisen. Tulshi Prasad Singh having died, the present suit has been brought against his sons and Deonath Singh to recover the money by sale of the property hypothecated. Defendants 1 to 3 are the minor sons of Tulshi Prasad Singh and their case is that for the purposes of paying the price of a pre-empted property their father or their uncle were not authorized by the Hindu law to mortgage the joint family property and therefore the suit must fail.

8. The learned Subordinate Judge who heard the suit agreed to this contention and dismissed the suit, so far as it was for enforcement of the mortgage ; but he gave a simple money decree against Deonath Singh on foot of the personal covenant contained in the mortgage bond. Deonath Singh has not appealed. The plaintiffs have filed this appeal and they contend that the mortgage was a prudent and beneficial one and should be upheld. There was another plea taken that the sons could not both retain the benefit acquired with the plaintiffs' money and at the same time refuse to pay the same. This plea cannot be sub-santiated on facts. It appears from the written statement of Deonath Singh and there is no evidence to the contrary that the property acquired by pre-emption has been lost to the family because of a suit brought by a minor member of the family of the vendors. The appeal came up for hearing before two learned Judges of this Court and having regard to the conflict of decisions on the question of the power of a manager of a Hindu family to raise money on the security of joint family property for the purchase of new property they referred the whole case to a larger Bench. The view which I have taken of the manager's authority to raise money in the circumstances stated above is contained in the judgment in Kishen Sahai v. Raghunath Singh : AIR1929All139 and Inspector Singh v. Kharak Singh : AIR1928All403 . As the point has been referred to a larger Bench so that the law on the point may be settled, I think it necessary for me to discuss the entire law on the point.

9. To get hold of the principle on which the appeal is to be decided, we must look to the Hindu law ; for the question is one of Hindu law and Hindu law alone. The constitution of a Hindu family with property and the power of the father or the manager to mortgage the family property has been dealt with and stated by Vijnaneshwar in his book, the Mitakshara. I shall read the statement of the law made by Vijnaneshwar from the translation of Colebrooke. In Chap. 1, Section 1, para. 27, Vijnaneshwar says:

Therefore it is a settled point, that property in the paternal or ancestral (grand paternal) estate is by birth although the father has independent power in the disposal of effects other than immovables, for indispensable acts of duty and for purposes prescribed by texts of law, as gifts through affection, support of the family, relief from distress, and so forth : but he is subject to the control of his sons and the rest, in regard to the immovable estate, whether acquired by himself or inherited from his father or other predecessor ; since it is ordained : ' Though immovables or bipeds (this probably means slaves) have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They, who are born, and they who are yet begotten, and they who are still in the womb, require the means of support, no gift or sale should therefore be made.

10. The rule therefore is that the family property is for the support of those who are in existence, those who are in the womb and those who are not yet begotten, and therefore the property cannot be disposed of by the father without the consent of his sons. The same rule applies when the manager is not the father but say an uncle. He must have the consent of all other members of the family, in order to transfer the same, because they have a right in the property. This being the state of the law, it might work to the disadvantage of the family in cases where some of the members are minors and yet there is an urgency to raise money. An exception therefore is made and mentioned in the next para. 28. It reads as follows:

An exception to it follows : 'Even a single individual may conclude a donation, mortgage, or sale, of immovable property, during a season of distress, for the sake of the family, and especially for pious purposes.

11. This is a quotation made by the author of the Mitakshara from the Smriti of Brihaspati cited by Batnakar. Having quoted the text, Vijnaneshwar proceeds to explain the meaning of the text quoted. He says in para. 29:

The meaning of that text is this : while the sons and grandsons are minors, and incapable of giving their consent to a gift and the like; or while brothers are so (minors) and continue un-separated; even one person, who is capable, may conclude a gift, hypothecation, or sale, of immovable property, if a calamity affecting the whole family require it, or the support of the family render it necessary, or indispensable duties, such as the obsequies of the father or the like, make it unavoidable.

12. The exception to the general rule which was mentioned in the text required explanation and what has gone above is the meaning put to it by Vijnaneshwar. The three conditions in which a single member is allowed to transfer the property are:

(1) A season of distress; (2) for the sake of the family; and (3) pious purposes. Vijnaneshwar says that in the case of No. 1, there should be a calamity affecting the whole family and the calamity cannot be averted without the transfer. His language is : 'If a calamity affecting the whole family require it.

13. The second case (sake of the family) is explained by Vijnaneshwar as meaning that the support of the family renders it necessary to make the transfer. It will be noticed here that what has been trans lated as 'sake of the family' has been understood by Vijnaneshwar as meaning the support of the family and not the aggrandisement of it and not the adding of wealth to the family. The third case (pious purposes) has been understood by Vijnaneshwar as meaning indispensable duties such as the obsequies of the father or the like, duties which cannot be avoided. The making of a gift out of sheer charity may be a pious duty but that is not the sort of pious duty that Vijnaneshwar understands. The pious duty must be one that cannot be avoided. Such being the state of the Hindu law, as explained by Vijnaneshwar, whose authority in this part of the country is paramount, we have to see whether a purchase of property, or acquisition of property by pre-emption, which is the same thing only more costly and more speculative, on the security of the joint ancestral property comes within the exception. In an ordinary case of preemption, the purpose is neither the avoidance of a calamity nor support of the family nor performance of an indispensable duty like a Sradh. It has been argued that it may be that the person who has purchased the property is a very bad man with tyrannical habits and it might be feared that; if he was allowed to purchase the property, he might in course of time swallow up the whole family property. If a case like that can be made out it is possible to say that the pre-emption would be an act to avoid a calamity which affects the whole family. The calamity must be one which affects the whole family. This cannot be forgotten. No such allegation has been made in this case and we need not consider such a hypothetical case. On a bare reading of the Mitakshara therefore the mortgage in question must be held to be unjustified, and therefore not binding on the family property.

14. It appears that their Lordships of the Privy Council in the case of Hunoomanpersad Panday v. Mt. Babooee Munraj Koonweree [1854-57] 6 M.I.A. 393 considered the powers of the manager of an infant heir to charge the minor's estate. In that case' the mother of the infant heir had made a mortgage and the validity of that mortgage was in question. Their Lordships laid down the extent of the power of the manager in the following well-known passage which will bear quotation:

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 a case of need, or for the benot 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.

15. This law was laid down as between a minor and his manager and has no direct reference to the conditions of the joint Hindu family in which there are certain minor members. But this very passage has been quoted from time to time as also covering the case of a joint family. It has been understood from this statement of the law, that it is only in the case of a necessity and necessity alone that the manager of a Hindu family in which there are minors can charge the estate. In discussing the liability of the sons for the father's debts, in the well-known case of Brij Narain v. Mangla Prasad A.I.R. 1924 P.C. 50, their Lordships of the Privy-Council mentioned the somewhat illogical state of things, namely, the limited power of the father in charging the property and the unlimited liability of the sons to pay the father's antecedent debts. In discussing the situation their Lordships said, at p. 101:

On the one hand it is settled law that the manager as such cannot bind the estate at his own free will and without any compelling cause so as to bind the reversioners. He can bind it for necessity, the necessity being the necessity of the family.

16. It will be noticed that this is in accordance with the law as propounded by Mitakshara. The calamity should be one which affects the whole family. The rest of the discussion of their Lordships relates the liability of the son to pay his father's debt. In concluding the judgment their Lordships laid down the law in five propositions and the first one is:

(1) The managing coparcener of a joint undivided estate cannot alienate or burden the estate qua manager exeept for purposes of necessity.

17. As the present case is not a case of a debt of a father, it is not necessary to consider the other propositions of law laid down by their Lordships. From this case we find that apart from the question of payment of father's debt, a father as the manager of the family can burden the estate only for the purposes of necessity, and that necessity, to quote the language if their Lordships again at p. 101 must be a 'compelling cause' and the necessity must be a necessity of the family. It is difficult to believe that their Lordships of the Privy Council had not in their mind the rule laid down by the Mitakshara quoted in the beginning of the judgment. In their Lordships' opinion the test of a single member's authority to burden the family property is confined to the existence of 'compelling necessity,' which is a 'necessity of the whole family.' If we analyze the three cases in which 'Vijnaneshwar permits the manager to transfer immovable property belonging to himself and members of the joint family some of whom are minors, we shall find that the single test applied by their Lordship of the Privy Council in Brij Narain's case A.I.R. 1924 P.C. 50 is enough. The compelling necessity of the whole family' will cover the case of support of the family and will cover the case of a death in the family and the performance of the obsequial rites. It has been urged that the statement of manager's power laid down by their Lordships of the Privy Council in Hanooman Persaud's case [1854-57] 6 M.I.A. 393 gives wider powers to the manager and he can burden the family property in order to ' confer benefit on the estate.' There can be no doubt that their Lordships do use the words 'benefit to the estate' in the passage quoted above from Hanooman Persaud's case [1854-57] 6 M.I.A. 393. But then we have to see what was in their Lordships' mind when they used the expression ' the benefit to be conferred upon it.' Did their Lordships mean any benefit which was not a case of a necessity or was it the case that the expression 'benefit to be conferred on the estate' was meant to be an equivalent of the words 'for the sake of the family' to be found in Colebxoke's translation in para. 28, Ch. 1, Section 1 of the Mitikshara? If we suppose that the expression 'benefit to be conferred' was meant to be a benefit which was not the kind of benefit expressed by the expression 'for the sake of the family' (para. 28, Mitakshara and which has been explained in para. 29 by Vijnaneshwar) then there is conflict between the statement of the law in Hanooman Persaud's case [1854-57] 6 M.I.A. 393 and the statement of the law contained in Raja Brij Narain's case A.I.R. 1924 P.C. 50. Their Lordships confine the authority of the manager to a case of compelling necessity.

18. In my opinion there is no conflict between Hanooman Persaud's case [1854-57] 6 M.I.A. 393 and Raja Brij Narain's case A.I.R. 1924 P.C. 50. The benefit to be conferred mentioned at p. 423 of the report in Hanooman Persaud's case [1854-57] 6 M.I.A. 393 is a benefit of the same character as has been described in the Mitakshara as 'for the sake of the family' and which has been further explained in Mitakshara as 'for the support of the family render it necessary,' That this is so will be clear from the illustrations given by their Lordships themselves in Hanooman Persaud's case [1854-57] 6 M.I.A. 393 and in subsequent cases. In Hanooman Persaud's case [1854-57] 6 M.I.A. 393 the illustrations given by the Privy Council were 'the actual pressure on the estate' and 'the danger to be averted.' These were really explained by the words that followed, namely:

or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded.

19. According co my reading of the passage, their Lordships described the two instances quoted, namely, the 'pressure' and the 'danger' as two instances where by their removal, benefit could be conferred on the estate. This idea will be made clearer from a more recent case decided by their Lordships, namely, Palaniappa Chetty v. Sreemat Devasikamony A.I.R. 1917 P.C. 33. In this case which was a case of a mahant burdening the math property, their Lordships are reported to have said at p. 718 (of 40 Mad):

It is impossible their Lordships think to give a precise definition of it (benefit) applicable to all cases, and they do not attempt to do so the preservation however of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundations, these and such like things would obviously be benefits. The difficulty is to draw the line as to what are in these connexions to be taken as benefits and whatnot.

20. It will be noticed that the three instances quoted by their Lordships were all cases where a danger was to be averted, which were cases of real necessity. The words 'and such like things' used by their Lordships contemplated that 'other instances of benefit to the estate' were to be of the same nature as the three illustrations given. It is true, their Lordships stated, that it was difficult to draw the line, but with all respect, they were, bound to say so, because it was humanly impossible to mention all cases of the necessity which may legitimately drive the manager to raise funds on the security either of the family property or of the math property. But, in my opinion, there is nothing in the passage to indicate that their Lordships were contemplating any case in which benefit was to be conferred by adding more property to the math or family, by alienating or by mortgaging the existing property. In Sanyasi Charan v. Krishnadhan Banerji A.I.R. 1922 P.C. 237 their Lordships of the Privy Council refused to hold that a minor member of a family was bound by the liabilities that arose out of a business started by the adult member of the family, although he was the manager of it. No doubt this was a case under the Dayabhaga law, but the principle to be applied was the same. To take the case of a common illustration can a man who has been appointed guardian to a minor by the District Judge attempt to acquire property by raising money on the security of the minor's property? Even if the District Judge's permission for the purpose were not necessary, on general principles, such a power will be denied to the manager. In the latest pronouncement of their Lordships of the Privy Council the same view, as was taken in Sanyasi Gharan's case A.I.R. 1922 P.C. 237 was reiterated. This is the case of Benares Bank Ltd. v. Hari Narain . This was a case in which two adult members of a joint family on which there were minors started a business and, for that purpose, borrowed some money. Their Lordships said:

Not it was argued that a business started by the father as manager, even if new must be regarded as ancestral. Their Lordships do not agree. It is in direct opposition to the ruling of the Board in Sanyasi Char an Mandal v. Krishna Dhan Banerji A.I.R. 1922 P.C. 237.

The judgment in that case proceeded on the broad ground that the manager of a joint family has no power to impose upon a minor member of the family the risk and liability of the new business started by him. That no doubt is a Dayabhaga case, but there is no distinction in. principle on this subject between a case under the Dayabhaga and one under the Mitakshara. The power of a manager of a joint family governed by the Mitakshara law to alienate immovable property belonging to the family is defined in verses 27 to 29, Ch. 1 of the Mitakshara. The judgment of this Court in Hanoomanpersad Panday v. Mt. Babooee Koonweree [1854-57] 6 M.I.A. 393, relied on by the bank, was founded apparently on those verses. A new business, their Lordships think is not within the purview of those verses. It does not make any difference that the manager starting the new business is the father. Their Lordships find that the balance of authority in India is in accordance with this view.

21. This case is an express pronouncement that the law contained in Hanoomanpersaud's case [1854-57] 6 M.I.A. 393 is the same law as is laid down by the Mitakshara in verses 27 to 29 of Ch. 1 (Section 1) of the Mitakshara, and that therefore a starting of a new business by the managers cannot be regarded as coming within the three cases given by the Mitakshara as the cases in which a single member of the family can alienate the joint family property. This case further leaves no room to doubt what was meant by their Lordships of the Privy Council by the expression benefit to be conferred on the estate' in Hanoomanpersaud's case [1854-57] 6 M.I.A. 393. As I have said above, the five illustrations which their Lordships give, two in Hanoomanpersaud's case [1854-57] 6 M.I.A. 393 and three in the case of Palaniappa Chetty v. Sreemat Devasikamony A.I.R. 1917 P.C. 33, they all indicate cases of necessity or compelling cause' or 'necessity, the necessity being the necessity of the family', expressions used at p. 101 in Brij Narain s case A.I.R. 1924 P.C. 50. Examining then the case in view of the Hindu law and the pronouncements of their Lordships of the Privy Council and also on general principles, it is clear that a case of raising money on the security of the joint family property for the purpose of acquiring fresh property cannot come within the three cases cited as cases of exception' in paras. 28 to 29, Ch. 1, Section 1 of the Mitakshara. I need hardly mention that the property being the property of several persons, one or two persons, who happened to be the adult members at the time, have no right to jeopardize it by a mortgage, especially when the raising of the money is not necessary for the support of the family or for avoidance of a calamity affecting the whole family or for performing the funeral of a deceased member of the family. If any adult member thinks that it would be conducive to the interests of the family or himself to acquire more property, he is at liberty to have a partition effected and he can proceed as he likes by raising money on the security of his own share. The funds which are regarded as:

the funds for the support of the living and the persons in the wombs of their mothers and those who are yet unbegotten,

cannot be utilized on the off chance of doing good to the family. It was argued that a self-acquisition might be made a part of the joint family, by the acquired property being thrown into the joint stock, and that therefore, when that property has gone into the joint stock, it should be open to the manager to raise money on the security of the family property in order to benefit the thing which has become now the joint family property. By way of illustration it is said:

Suppose the father with minor sons starts a business and makes money; he can make what was his own separate business the family business by throwing that business into the common stock.

22. But the business can be thrown into the common stock only in the sense that the father declares that it is no longer his separate property but it is the property of himself and his minor sons. We may assume that the consent which would be necessary to accept a property given by one to another may be supplied in this case of minor sons by the father himself. But this gift, by the method of throwing the business into the common stock, will not and should not allow the manager, even if he be the father, to utilize the joint family property, which, it must be remembered, is a fund for the support of the existing and yet-to-be-born members of the family. That this is so has now been clearly pronounced by their Lordships of the Privy Council in the case of Benares Bank v. Hari Narain . Having then dealt with the case on the basis of Hindu law, on the basis of Privy Council rulings and on the basis of general principles, let us look to the decisions of our High Court. I may mention hers that no case of any other High Court has been cited to us. Going to earlier cases, we find that in Nathu v. Kundan Lal [1911] 38 All. 242 a manager who was the father was allowed to mortgage the family property in order to pay the price of a preempted property on the ground that the pre-emption decree created a 'debt' of the father. With all respect I am unable to accept this view. It is neither a debt nor an antecedent debt. The money had not been borrowed in any sense of the word. The liability had no doubt been contracted, but that was a liability which cannot be called a debt. The price which a man has to pay for a property agreed to be purchased is not a debt at all, at any rate till the property has already come into the hands of the purchaser and the price remains unpaid. In that case it might be said that the purchaser owes money and therefore a debt to the seller. In the case of a pre-emption the property is to be obtained only on payment, and if no payment is made, the property cannot be got. A similar view was taken in the case of Bhup Singh v. Chedda Singh A.I.R. 1920 All. 34. The case is to be distinguished because there was a clear finding that the purchase was to be beneficial to the family and the mortgagee who had advanced the money had made such inquiries as would result in his holding a good mortgage. No such circumstances appear in this case. It is a simple case of pre-emption.

23. The view taken in Nathu's case [1911] 38 All. 242, and which had been followed in the case of Kapildeo v. Thakur Prasad A.I.R. 1914 All. 368, was dissented from in the case of Chaturbhuj v. Govind Ram A.I.R. 1923 All. 218. The learned Judges held that the pre-emption money was not an antecedent debt and would not support a transfer of the family property. The same view was taken in Sankar Sahai v. Baiohu Ram : AIR1925All333 and if; was remarked that the benefit to be conferred mentioned in Hanoomanpersaud's case was a benefit of a 'defensive character.' This view, taken in later cases, as regards pre-emption, was again taken by a Bench of this Court of which I was a member, in Kishen Sahai v. Baghunath Singh : AIR1929All139 . It was urged that the Full Bench decision in Jagat Narain v. Mathura Das : AIR1928All454 has really disapproved of the opinion that the benefit to the estate must be of a defensive nature. As pointed out by me in the case of Kishen Sahai v. Baghunath Singh : AIR1929All139 the decision ultimately arrived at by the Full Bench on the facts of the case before them might have been arrived at without laying down that the 'benefit to be conferred' need not be of a defensive character, for the facts brought the case within the purview of the decision of the case of Sankar Sahai v. Baiohu Ram : AIR1925All333 where it was laid down that the benefit was to be of a defensive character. The facts of the Full Bench case were that the property that was sold by the adult members of the family was situated 19 miles away from the home of the family and it was very difficult for them to manage the property successfully and to the benefit of the family. If the property was not yielding anything, we may say that the sale was made for the support of the family, for the property, from its situation, did not support the family. However, without drawing this distinction, it must now be admitted that the authority of the Full Bench case has been entirely destroyed by reason of the decision in the case of Benares Bank v. Hari Narain . The learned Judges of the Full Bench were requested to consider the law as laid down in the Mitakshara, but they refused to do so. At p. 973 of the report (50 All. Ed.) the learned Judges are said to have remarked:

We were invited to consider passages from the Mitakshara, but their Lordships had those passages before them and they interpreted them in certain language and that language we must and do of course readily accept.

24. The interpretation referred to was the interpretation contained in Hanoomanpersaud's case [1854-57] 6 M.I.A. 393. If the learned Judges had read the Mitakshara with the interpretation put on it by their Lordships of the Privy Council in Hanoomanpersaud's case [1854-57] 6 M.I.A. 393I have not the least doubt that they would have arrived at the same conclusion at which I have arrived. With all respect, it was not right to ignore the very source of the law, the Mitakshara, and to try to read the gloss although the gloss was put by their Lordships of the Privy Council as if it were the language of a statute. I have done my best to explain with reference to the Mitakshara what their Lordships meant by 'benefit to be conferred,' and now, as their Lordships themselves have again interpreted the Mitakshara in the case of the Benares Bank , little room is left to doubt that their Lordships never meant to depart from the strict law laid down by Vijnaneshwara. In my opinion we should now formally overrule the case of Jagat Narain v. Mathura Das : AIR1928All454 . I hold that the mortgage in suit was not within the authority of the executants and that it is not enforceable against the family property mortgaged.

King, J.

25. I agree that the mortgage is not binding upon the joint family property. In the first place, the loan was not taken to discharge an antecedent debt. The question of 'antecedent debt' arises in this case, because the contesting defendants are the sons of Tulshi Prasad Singh, one of the mortgagors. The preemption decree gave to the pre-emptors the option of acquiring certain zamindari property upon payment of a certain sum of money within a specified time. The pre-emptors were not under any legal liability to pay the pre emption money. Therefore it was not a debt. I agreed to the view taken on this point in Chaturbhuj v. Govind Ram A.I.R. 1923 All. 218, in Shankar Sahai v. Bechu Ram : AIR1925All333 and in Kishan Sahai v. Baghunath Singh : AIR1929All139 and respectfully dissent from the decision in Nathu v. Kundan Lal [1911] 38 All. 242. The case of Kapildeo v. Thakur Prasad A.I.R. 1914 All. 368) is distinguishable as in that casa the mortgagor had bound himself under penalty to deposit in Court a certain sum of money by a certain date. In the second place, it is not proved that the loan was taken for legal necessity. There is no allegation that the acquisition of the property, by exercising; the right of pre-emption, was necessary for the support of the family; or that the would-be purchaser is an implacable and unscrupulous enemy of the family who would, by buying the property, be in a position to work mischief to the family and to imperil their enjoyment of their ancestral estate. I am not prepared to hold that the acquisition of new property, by pre-emption or otherwise, can in no circumstances be held to be justified by legal necessity. In Chotkanu Lal v. Ganga Singh : AIR1927All219 a Bench of this Court held, upon, the facts of that case, that where a loan had been taken, upon a mortgage of joint family property, for the purpose of satisfying a pre-emption decree, the loan must be regarded as taken for legal necessity, because it was necessary to exercise the right of pre-emption in order to safeguard the interests of the preemptor's family. In the present case however no sort of necessity for the loan has been established.

26. In the third place, it is not proved that the loan was taken for the benefit of the estate In certain circumstances it might be held that the acquisition of new property by pre-emption was a beneficial and prudent act such as would justify a mortgage of joint family property by the manager. But the facts showing, that the transaction was beneficial and, prudent must be proved. I cannot accede to the contention that the acquisition of new zamindari property, with money raised upon a mortgage, must necessarily benefit the estate. It might be prudent and beneficial to acquire certain property for Rs. 1,000, but neither prudent nor beneficial to acquire the same-property for Rs. 3,000. Then again the property in question might hive a special value to the family owing to its-position. Its acquisition by the family might promote the profitable enjoyment of their ancestral estate, and its acquisition by an outsider, especially by a hostile outsider, might be harmful to the interests of the family. In the present-case, no facts have been brought to our notice from which we could conclude that the acquisition of the new property, by borrowed money, was a prudent act and beneficial to the family. Certain cases have been cited before us, e.g., Tula Ram v. Tulshi Ram A.I.R. 1920 All. 11, Jado Singh v. Nathu Singh : AIR1926All511 and Jagat Narain v. Mathura Das : AIR1928All454 in which it was held that an alienation of joint family property by a manager, for the purpose of buying new property, was valid and binding upon the estate. The reason in each case was that the transaction was prudent and beneficial to the estate or family. These decisions have no application to the facts of the present case.

27. If it had been found in the present case that the acquisition of the new property by pre-emption was for the benefit of the estate' (in the plain and ordinary meaning of that expression) and such as a prudent owner would make in order to benefit the estate, then we should have had occasion to consider certain further important questions, e.g., whether the rule laid down in Hanooman Pershad Panday's case [1854-57] 6 M.I.A. 393, that a, manager can charge the estate for the benefit of the estate (as well as 'in case of need'), has been tacitly overruled or dissented from in Brij Narain's case A.I.R. 1924 P.C. 50 or 'whether the expression 'for the benefit of the estate' should be given a very restricted meaning, so as to apply only to transactions of a 'defensive' nature, practically co extensive only with transactions justifiable also by legal necessity.

28. But in the present case the trial Court has found that the transaction was not for the benefit of the estate, and all the members of this Bench have concurred in that finding. We also agree that the loan was not taken for legal necessity or for discharging an antecedent debt. On these findings I think the appeal is concluded. The further questions suggested above, do not arise and therefore I refrain from expressing any opinion on them. I would only add that I agree with Sulaiman, C.J., that the authority of the Full Bench ruling in Jagat Narain v. Mathura Das : AIR1928All454 has not been shaken by the decision of their Lordships of the Privy Council in Benares Bank Ltd. v. Hari Narain . The two cases are clearly distinguishable upon the essential facts. In the latter case the loan was taken for starting a new business, and it was not even argued (and presumably therefore it was not even arguable upon the facts) that it was a prudent transaction, or for the benefit of the estate. In the Pull Bench case the loan was taken for a totally different purpose, and it was held that the transaction was prudent and beneficial. I agree that the appeal should be dismissed.


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