1. The only point for deter-ruination in this appeal is whether an item of Rs. 85 out of the consideration for a mortgage executed by Sunder on 20th November 1916 is for legal necessity, or for the benefit of the joint Hindu family consisting of Sunder and defendant 3 who was a minor, so as to bind defendant 3.
2. The mortgage was executed by Sunder, the manager of the joint family, as security for a loan of Rs. 128. Out of this amount the Court below has found that the payment of Rs. 43 has not been proved. The balance of Rs. 85 was recited in the mortgage dead to have been borrowed for purchasing a camel, and the plaintiff and a witness of his deposed that Sunder did in fact bay a camel with the money lent. The only question is whether Sunder was legally justified in creating the mortgage upon the joint family property for the purpose of buying the camel.
3. This second appeal first came before a single Judge of this Court who stated that the facts found by the lower appellate Court, which must be accepted in deciding the second appeal, are:
That Sunder cultivated about 3 or 4 bighas of laud and had a camel which was used as a pack animal let out on hire. The slender resources of the family were, to a certain extent, supplemented by what was earned as hire of the camel for carrying loads.
4. The lower appellate Court took the view that although Sunder may have been carrying on the business of carrying loads on the camel for hire it was necessary for the plaintiff to prove by satisfactory evidence that it was a business which had been carried on by Sunder's father or in the family, and that the plaintiff had failed to prove these facts. In the result the lower appellate Court dismissed the plaintiff's suit altogether.
5. The learned single Judge of this Court stated that while he was not prepared to endorse the view expressed by the learned Subordinate Judge in its entirety he did not think he should differ in second appeal from the conclusion arrived at by him. He relied upon the cases of Inspector Singh v. Kharak Singh : AIR1928All403 and Ratan Chand v. Ram Kishan Murarji : AIR1928All447 , as laying down the law that the karta of a joint Hindu family is not justified in starting new ventures by contracting loans even if such ventures are likely to prove of some benefit to the family; and that the benefit which may make the loan binding on the family should be of a defensive character. Unfortunately the subsequent Full Bench ruling of this Court in Jagat Narain v. Mathura Das : AIR1928All454 was not brought to the notice of the learned Judge. In that case it was held by the Pull Bench that in order to sustain an alienation of joint family property made by the managing member of the family the transaction must be one which is for the benefit of the estate and such as a prudent owner would have carried out with the knowledge available to him at the time. Transactions justifiable on the principle of 'benefit to the estate' are not limited to those transactions which are of a defensive nature.
6. The two rulings mentioned above on which the learned Judge relied, were referred to and not followed. In the present case X think it is clear that Sunder who had only about 3 or 4 bighas of cultivation and a family consisting of 3 or 4 members, was compelled to supplement his income and he did so by transporting loads on a carnal for hire. The camel fort which the loan in question was incurred was not the first camel which Sunder had employed in this manner. The purchase of the camel on this occasion therefore was not a new venture. Presumably: Sunder must have found the business profitable, otherwise he would not have bought another camel after the previous one had died. There is certainly no evidence that the business of carrying loads on camels was an ancestral business but on the principle laid down in Jibe Full Bench ruling it is not necessary for the purpose of binding the joint family property that the loan should be incurred for the purpose of an ancestral business. On the facts of this case it appears to me that Sunder acted in a reasonable and prudent manner for the benefit of the family and that the family must have benefited by his purchase of the camel, and I see no 'reason why the loan should not be treated as binding upon the family. When the lower appellate Court held that it was not proved that the business had been carried on 'by Sunder's father or in the family' we take it to mean that it was not proved that the business was carried on by his father or by other members of his family. There was no doubt about it that Sunder himself was carrying on the business and had been carrying it on for some time before the loan in question.
7. I would therefore allow the appeal to the extent of finding the mortgage valid and binding as to Rs. 85 as the principal. The first Court has found the rate of interest agreed to in the mortgage-deed to be penal and excessive and has reduced it to 12 per cent per annum simple interest. I consider this rate to be reasonable.
8. I would accordingly decree the plaintiff's claim for Rs. 85 as principal, and extend the time for payment until one week from today. Simple interest at 12 per cent per annum should be allowed up to the date fixed for payment, and thereafter at 6 per cent per annum until realization. The plaintiff-appellant should get proportionate costs in all Courts.
Sulaiman, Ag. C.J.
9. I concur and would only like to add that in Rattan Chand v. Sri Thahur Ram Kishen Murarji I expressed a view contrary to that expressed in Inspector Singh v. Kharak Singh, and at some length gave reasons in support of my view but only agreed to follow the other view for the sake of introducing uniformity (p-78l). The subsequent Full Bench ruling in Jagat Narain v. Mathura Das and perhaps also the Privy Council ruling in Ram Krishna Murarji v. Ratan Chand have materially altered the position.
10. We accordingly allow the appeal and decree the plaintiff's claim for Rs. 85 as principal. We extend the time for payment until one week from to-day. Simple interest at 12 per cent per annum is allowed up to the date fixed for payment, and thereafter at 6 per cent per annum until realization. The plaintiff-appellant will get proportionate costs in all Courts.