1. The question for decision in this appeal is whether a mortgage made by three members of a joint Hindu family in favour of the first respondent was binding upon the appellant who was also a member of the family. The appellant died since the appeal was filed and is now represented by four of his sons. His eldest son, Nand Kishore, is the second respondent and is one of the three who signed the mortgage.
2. The following table shows all the members of the family:
Nadir Shah.|-------------------------------------------------------| | | |Sudhisht Drigbijai Surat Singh AjrallNarain. Singh. Singh.| | |-------------- | || | | |Jai Karan. Bishnath. | || || |------------------------------------------- || | | | | |Nand Subh Mankaran. Rabhika Raj |Kishore. Karan. Dat. Partap. |||-----------------||-----------|-------------| | |Jaskran. Another. Another.
3. One Dalthaman Singh transferred all his property by deed of gift to Jaikaran, Surat Singh, Bishnath and Nand Kishore. It has been found that the transfer was intended to operate for the benefit of the whole family and that the property transferred was treated by all as part of the joint family property.
4. In September 1890, the four persons, in whose favour the deed of gift had been executed, mortgaged part of the property to one Kunnu Mai to secure payment to him of a loan said in the mortgage to have been taken for the purpose of paying the Government revenue and for domestic expenses of the family. Kunnu Mal put his mortgage in suit put obtained a decree for sale of the property. On October 14th, 1895, the same four persons mortgaged part of the family property to the Srst respondent in order to pay off Kunnu Mai and' avert a sale. On the same day, Nand Kishore, Surat Singh and Ajrail Singh mortgaged several other villages to the first respondent by way of collateral security for the same loan. The first respondent brought a suit on his mortgage and collateral security and ultimately obtained a decree for sale of the villages comprised in the collateral security. The appellant claims in the present suit a declaration that what he calls his share in one of the villages in not liable to be sold in execution of the first respondent's decree. The remainder of the property appears to be in Oudh and to be the subject of another suit in that Province.
5. The defence of the first respondent is that the loan taken from Kunnu Mai was taken for family necessity and that the money borrowed from the first respondent was taken for the purpose of discharging the debt due to Kunnu Mat and also for the purpose of averting a sale of the property in execution of his decree. It was further pleaded that the respondent, Nand Kishore, who signed the mortgage in favour of Kunnu Mal and both deeds of October 14th, 1895, was the manager of the property of the family, and the rest of the family are bound by his acts. It was also pleaded that the appellant was a religious devotee who lived in temples and wandered about the country and the first respondent was not aware of his existence when the mortgage of October, 1895, was made.
6. Both the Courts below have found that the mortgage of October, 1895, was made for family necessity and that the respondent, Nand Kishore, was at the time and had been for several years previously manager of the property of the family.
7. The question whether necessity has been made oat in a case of this kind is not a pure question of fact, and, therefore, the decision of the lower Appellate Court that necessity has been proved can be challenged in this Court. As was observed in a recent case by their Lordships of the Privy Council Kishan Parshad v. Har Narain Singh 15 C.W.N. 321 : 8 A.L.J. 256 : 9 M.L.T. 343 : 13 C.L.J. 345 : 21 M.L.J. 378 : 13 Bom. L.R. 359 : 33 A. 272 : (1911) 2 M.W.N. 395 : 9 Ind. Cas. 739 the Indian decisions as to the powers of the managing members of an undivided Hindu joint family are somewhat conflicting. It is impossible to extract from them any definite rule as to what does and what does not constitute necessity, nor would it be possible, or even desirable, to lay down any definite rule applicable to all cases, for the facts in different cases are infinitely different. Id has been contended by the appellant in the present case that in order to constitute legal necessity, it must be proved that there was at the date of the transaction in question an immediate and pressing necessity which must be proved; secondly, that it was impossible to meet the necessity except by means of the transaction in question; and thirdly, that there was no time to obtain the consent of the other adult members of the family. No case has been cited, and I know of no case, which lays down the law in this sense. If the rule is as contended by the appellant, the manager of a joint family property has no power to exercise his discretion even in case of obvious necessity and his acts will bind the family only where both necessity exists and the circumstances compel him to that once without reference to the other adult members of the family. The powers of a manager of a Hindu estate were fully considered in the much cited case of Hanooman Persad Panday v. Musammat Babooee 6 M.I.A. 393 : 18 W.R. 81. That was the case of a mother managing as guardian for an infant, but the principles therein laid down have always been considered to apply to other managers of Hindu properties. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred on it, is the thing to be regarded and a bona fide lender is not affected by precedent mismanagement of the estate. The lender is bound to inquire into the necessities for the loan and satisfy himself as well as he can that the manager is acting for the benefit of the estate.
8. In the present case, part of the family property was proclaimed for sale, the money advanced was actually used to avert the sale and the lender dealt with a person who had for years managed the property of the family and who had obtained the assent of several members of the family to the mortgage. In all the circumstances, it seems to me that there was legal necessity for the mortgage. It was said that there may have been necessity for the mortgage, but no necessity for the collateral security. But it has not been suggested that the security given was excessive. In fact, as it now appears, it was not excessive. In my opinion, the Courts below were right in holding that there was necessity for the transaction and that the transaction was binding upon the plaintiff, who for years had left the management of the property in the hands of his son, Nand Kishore. I would dismiss the appeal with costs.
Karamat Husain, J.
9. On principle, one of the joint owners of a property has no power to transfer it for any purpose to anybody without the consent of other joint owners. The Hindu law seems to make an exception in favour of the managing member of a joint Hindu family when he alienates the joint family property for family purposes. His exceptional power to transfer what is not his must, on principle, be limited to the narrowest possible compass. In those cases only in which there is an immediate and pressing need, in which it is impossible to meet the need without making a particular transfer, and in which there is no time to obtain the consent of other adult members of the joint family, the transfer should be held to be binding on the members who have not consented to it. Having regard, however, to the view taken by my learned brother, I am not inclined to differ from him.
10. The order of the Court is that the appeal be dismissed with costs.