1. The genealogical table in this case is as follows:
Ram Parkash Bhagat.|---------------------------------------------------------------------------| | | | | |Munnilal Jegdeolal Jhunnulal Babulal Chunilal Makhan Laldefdt. defdt. | | defdt.| |Banarsilal Phul KaurMinor plff. Wife|Madholal, minor defendant.
2. The property in suit was mortgaged to Jawhir Lal under registered mortgaged deeds dated the 27th of June, 1895, 27th of September 1898, 18th of May 1899, 30th of May 1900 and 26th of September 1901, executed by Makhan Lal and others. This appears from the recitals in the sale-deed of the 21st of March 1904. According to the recitals in the above sale deed, Makhan Lal, as a head and manager of the family for self and as guardian of Madho Lal, minor son of Babu Lal, Banarsi Lal, minor son of Jhunni Lal, and Musammat Phul Kunwar, wife of Babulal, mother and natural guardian of Madholal, sold the property in dispute to Musammat Dhanvanta, wife of Sheoram Lal. The preceding debts, for the payment of which the sale-deed was executed according to the recital on sale-deed, were contracted to meet pressing necessities, to pay Government revenue, to save the properties hypothecated, to meet the expenses of the marriage of Banarsi Lal, Jagdeo Lal, and other children, to bring up the minors, and to meet other necessary expenses relating to the management of the family, etc. Banarsi Lal, on the 9th of December 1905, brought an action for the recovery of possession of his share in the property sold oh the allegation that the sale was not binding upon him. The pleas in defence were that the vendee purchased the property in good faith and for consideration from Makhan Lal, the apparent owner of the property, and the head and manager of the plaintiff's joint family for payment of Government revenue and other legal necessities and that, therefore, the sale was binding on the plaintiff.
3. The Court of first instance found in favour of the plaintiff and gave him a degree with the exception of a sum of Its. 500 being his share of the Government revenue. That Court in its judgment says: 'It is admitted that the plaintiff never paid any Government revenue and I am of opinion that in equity the plaintiff should pay his share of Government revenue, viz., Rs. 500.' It also held that the sale-deed executed by Makhan Lal, was not binding on the plaintiff, that Makhan Lal was not the managing head of the family, that on if he was, he sold the property for no benefit of the minor, that the defendants were purchasers for consideration, that they advanced the money to the uncles of the plaintiff and that they were entitled to get it back from them. There was an appeal from this decree to the learned District Judge by Banarsi Lal. The main plea was that the appellant was not liable for the payment of Government Revenue as he lived in his Nanhial and was not benefited by the profits of his ancestral property. Objections were filed by Musammat Dhanwanta and Sheoram Lal. The lower appellate Court on the 4th of September 1906, decreed the appeal of Banarsi Lal, and rejected the objections. Regarding the sum of Rs. 500--paid for Government revenue, the learned District Judge in that judgment said: 'Before the plaintiff can be held liable to contribute a part of the revenue, the defendants must show that in fact the property was insufficient to meet the Government demand. The defendants have failed to prove that such was the case. I am, therefore, of opinion that the plaintiff cannot equitably be ordered to pay Rs. 500 or any sum to the defendant vendee.' The objections were rejected on the ground that sufficient Court-fee was not paid. On appeal tip the High Court, the case was by an order of the 16th of April 1908, remanded to the lower appellate Court for giving the defendants an opportunity to make good the deficiency. The deficiency was made good and the objections taken by the defendants were adjudicated upon by the lower appellate Court. There were only two objections, viz., (1) that the plaintiff and Makhan Lal, and Munni Lal, defendants were members of a joint Hindu family, and that Makhan Lal, as the managing head of the family contracted debts for family purposes and sold the property in dispute in satisfaction of these debts; and (2) that the suit was not maintainable as it had not been instituted through the certificated guardian. On the first objection, the Court found that the plaintiff was not benefited in any way by the debt contracted by Makhan Lal, and that the sale of plaintiff's share was not binding on him. The lower appellate Court further found that the defendants failed to prove that any portion of the loan taken by Makhan Lal was spent on the mundan or marriage of the plaintiff. Regarding the second objection, the Court said that it was taken for the first time and could not be entertained. On the above findings the lower appellate Court rejected the objections. Musammat Dhanvanta and Sheoram appeal here, and it is urged on their behalf that as the sale-deed was executed for the payment of antecedent debts and of Government revenue by Makhan Lal, the managing head of the family, the plaintiff was bound. In support of this-contention reliance is placed upon Hunooman Pershud Pandey v. Musammat Babooee Munraj Koomweree 6 M.I.A. 393 : 18 W.R. 87, in which their Lordships of the Privy Council say: 'the power of the manager of 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 benefit of the estate; but where under the particular instance the charge is one that a prudent owner would make in order to benefit the estate, a bona fide lender is not affected by the preceeding 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 in stance is the thing to be regarded, but, of course, if that danger arises or has arisen from any misconduct to which the lender is or has been a party, he cannot take advantage of his own wrong to support a charge in his favouragainst the heir grounded in a necessity which his wrong has helped to cause. Therefore, the lender in this case, unless he is shown to have acted mala fides, will not be affected, though it be shown that with better-management the estate might have been kept free from debt. Therefore, their Lordships think that the lender is bound to enquire into the necessities for the loan and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the manager is, acting in the particular instance for the benefit of the estate, and they think that if he has so enquired and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a. condition precedent to the validity of the charge, and they do not think that under such, circumstances, he is bound to see to the application of the money.' In the same judgment their Lordships (at p. 419) remark: 'The presumption proper to be made will vary with circumstances and must be regulated by and dependent on them. Thus, where: the mortgagee himself, with whom the transaction took, place, is setting up a charge in his favour, made by one whose power to alienate he necessarily knew to be limited and qualified, he maybe reasonably expected to allege and prove facts presumably better known to him than to the infant heir, namely, those facts which embody the representations made to him of the alleged needs of the estate, and motives, influencing his immediate loan.' It is contended for the appellants that as the sale-deed was executed for the payment of antecedent charges on the estate and of Government revenue, it was not necessary for the vendee to ascertain the nature of the previous charges and the reasons which brought about the need for the loan. In deciding this appeal, with reference to the appellants' contentions, the following facts are material: (1) All the mortgage-deeds recited in this sale-deed stood in favour of Sheoram Lal's father, (2) when Sheoram Lal was examined he stated as follows: 'I do not remember to whom the money was advanced. The executants of the document said to me that there was necessity. I on my part made no enquiry. I had confidence in them.' (3) Makhan Lal was not, the managing head of the family. (4) The sale-deed in question is in favour of Mnsammnt Dhanmanta, wife of Sheoram Lal. Taking into consideration the above facts, we have no doubt that in obtaining this sale-deed Sheoram Lal and his wife were bound to prove that the mortgages for the payment of which the sale-deed-was executed were of a character binding upon the minor. According to the findings arrived at by the lower appellate Court, Dhanmanta and Sheoram Lal have failed to prove that these charges were of a binding character. Had the mortgages been in favour of a Stranger, the observations of their Lordships of the Privy Council in Hanuman Prasaud Pandey's case 6 M.I.A. 393 : 18 W.R. 87 would. have applied but in the case before us the mortgages were in favour of Sheoram. Lal's father. According to the observations of their Lordships at p. 419 he had to prove the alleged need of the estate. As to the money borrowed by Makhan Lal for the payment of the Government revenue, we agree in the view taken by the lower appellate Court that having regard to the facts of the case the plaintiff is not bound to pay it to the defendants. The result is that we dismiss the appeal with costs, which will in this Court include feed on the higher scale.