Skip to content


Madan Lal and ors. Vs. Gajendrapal Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All243
AppellantMadan Lal and ors.
RespondentGajendrapal Singh
Excerpt:
- - the rule, in our opinion, clearly allows a decree in favour of a plaintiff who has not appealed. the fourth maintaining that the sons of ganeshi lal were under a pious obligation to pay the debt in dispute has not been pressed and clearly had no chance of success on the findings of fact of the lower appellate court. the first plea, namely that the district judge was not entitled to reverse the trial court's decree as against those defendants who did not appeal to him is clearly unsustainable in view of the provision of order 41, rule 4, civil p. c, which authorizes an appellate court, in a case like this, to reverse, in favour of all the defendants to a suit, a decree of the trial court against them. 9. the context clearly showed that by the words 'for his protection' he meant for.....1. this appeal is by the plaintiffs. it arises out of a suit for sale of property mortgaged under a mortgage-deed dated 3rd may 1912 executed by one ganeshi lal, defendant 1. in favour of paras ram, father, of the plaintiff-appellants for rs. 900. there are three sets of defendants, namely ganeshi lal, defendant 1, first party, his sons, defendants 2 to. 5, second party, and defendants 6 to 13, subsequent transferees of the mortgaged property, third party. the respondent gajendrapal singh is one of the subsequent transferees. he was the only defendant to contest the suit. he did so on the ground that the mortgage by ganeshi lal in favour of the plaintiffs was invalid for want of consideration and also of legal necessity. the trial court rejected this defence and decreed the suit in favour.....
Judgment:

1. This appeal is by the plaintiffs. It arises out of a suit for sale of property mortgaged under a mortgage-deed dated 3rd May 1912 executed by one Ganeshi Lal, defendant 1. in favour of Paras Ram, father, of the plaintiff-appellants for Rs. 900. There are three sets of defendants, namely Ganeshi Lal, defendant 1, first party, his sons, defendants 2 to. 5, second party, and defendants 6 to 13, subsequent transferees of the mortgaged property, third party. The respondent Gajendrapal Singh is one of the subsequent transferees. He was the only defendant to contest the suit. He did so on the ground that the mortgage by Ganeshi Lal in favour of the plaintiffs was invalid for want of consideration and also of legal necessity. The trial Court rejected this defence and decreed the suit in favour of the plaintiff-appellants. Gajendrapal Singh respondent appealed. The District Judge of Bulandshahr came to a finding that the actual consideration paid for the mortgage was Rs. 550 but that even for this sum there was no legal necessity. Accordingly he allowed the appeal and set aside the decree of the trial Court. He set aside that decree not only as against Gajendrapal Singh the appellant but as against all the defendants, that is to say as against the rest of the defendants who had not contested the suit.

2. The plaintiffs, i.e., the first mortgagees, have filed this second appeal to the High Court, asking for the restoration of the trial Court's decree as against all the defendants. But they have impleaded only Gajendrapal Singh out of the defendants. This respondent has raised as a preliminary objection to the appeal the contention that this is not permissible. The decree of the lower appellate Court is a decree against all the transferees. Indeed a decree in favour of the plaintiffs must inevitably be a decree against all or none of the co-transferees.

3. In reply to this objection counsel for the appellants invokes Order 41, Rule 33, which enacts that an appellate Court shall have power to pass any decree which ought to have been passed, and that this power may be exercised

in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.

4. Now it is obvious that this provision will not assist the appellants unless it is construed to mean that the appellate Court can pass a decree against a person who has not been made a respondent. On behalf of the respondent it is contended that the word 'parties' in the rule must be construed to mean parties to the appeal and that no decree can be passed either for or against a person who although a party to the suit is not a party to the appeal. There is no doubt the authority of Rukia v. Mewa Lal : AIR1928All746 recently decided by a two Judge Bench of this Court for holding that the word 'parties' in Order 41, Rule 33

was not intended to can note persons other than those who had been arrayed as appellants or respondents in the appeal.

5. If it were necessary to hold thus, for the disposal of the present objection, we should have much hesitation in following this decision, or holding that it was rightly decided. The rule, in our opinion, clearly allows a decree in favour of a plaintiff who has not appealed. Otherwise we should have found in the rule in the place of the words all or any of the respondents or parties 'the words' all or any of the appellants or respondents. Order 41, Rule 4 permits a decree in favour of a plaintiff who has not appealed against a respondent, where another plaintiff has appealed on a ground common to both plaintiffs, and there can be no reason for not allowing a decree in favour a plaintiff who has not appealed when the decree is one not asked for but one that ought to have been passed. But the question that arises is whether a decree can be passed against a person who is no party to the appeal. Rule 33 states that the appellate Court shall have power to pass any decree which ought to have been passed, and this is wide enough to allow a decree against a party to the suit who is not a party to the appeal. But the rule by using the expression 'in favour of all or any of the respondents or parties' seems to imply that the rule shall not be used to the prejudice of a person who is not a party to the appeal. This is consonant with equity. A person who has been heard in the appeal cannot object to a decree in favour of a person, merely because that person is not a party to the appeal, whereas it would appear inequitable to pass a decree against a party who has no chance of being heard in the appeal. It has been argued for the appellants that the lower appellate Court's decree was only in favour of Gajendrapal Singh, and consequently the present appellants-could only appeal against him. This is to repeat a fallacy pointed out in a recent decision of a two-Judge Bench of this Court of which one of us sat, namely Nannu Prasad v. Nazim Husain : AIR1928All274 . It was there pointed out that there can be only one decree in a suit existing at any one time, and that a trial Court's decree after an appeal was replaced by the decree of the appellate Court whether the appellate Court's judgment resulted in a totally different decree or only in a decree having the effect of modifying the trial Court's decree. In the present case the effect of the lower appellate Court's judgment was to bring into existence a decree in favour of all the transferees and not only in favour of Gajendrapal Singh. It was, therefore, necessary for the appellants to make all the transferees respondents in order to get set aside the decree of the lower appellate Court. Not having done so, they cannot be allowed to ask us to pass a decree against not only Gajendrapal Singh but also against the other transferees.

6. This objection then appears to us to be fatal to this appeal as brought. But counsel for the appellants has asked us to allow him to add the names of the other transferee-defendants as respondents if we hold that it is necessary to do so. The question of the propriety of our doing so will not arise, if we hold that the appeal should be dismissed on its merits, and consequently we proceed to consider the grounds taken in the memorandum of the appeal. Four grounds are set out. The fourth maintaining that the sons of Ganeshi Lal were under a pious obligation to pay the debt in dispute has not been pressed and clearly had no chance of success on the findings of fact of the lower appellate Court. The first plea, namely that the District Judge was not entitled to reverse the trial Court's decree as against those defendants who did not appeal to him is clearly unsustainable in view of the provision of Order 41, Rule 4, Civil P.C, which authorizes an appellate Court, in a case like this, to reverse, in favour of all the defendants to a suit, a decree of the trial Court against them. The two remaining pleas respectively are: (1) that it was not open to the transferees to impugn the mortgage in suit on the ground of its being executed by a manager of the family otherwise than for legal necessity, the contention being that the right of avoidance is restricted to the coparceners and cannot be passed on to their transferees, and (2) that in view of the fact that in a previous suit when the respondent Gajendrapal Singh and his co-transferees were suing on a second mortgage they had entered into a compromise with the appellants, as first mortgagees, that the property should be sold in pursuance of the second mortgage but subject to the first mortgage, it was not open to Gajendrapal Singh etc. to impugn the validity of the first mortgage. Although these pleas are taken in the memorandum of appeal in the inverse order, we find it convenient to discuss them in this order, since for the decision of the Litter plea, we shall require to invoke certain legal conclusions arrived at in our discussion of the former.

7. The argument is that the right of coparceners (in this case the sons) to avoid a transfer made by the managing member of the family (in this case, the father) on the ground that it was made without legal necessity is a right restricted to the coparceners which cannot be assigned by them to other persons and which does not pass along with the interest of the coparceners when that interest passes to strangers either by voluntary sale or by a sale by the Court in execution of a decree. There was a certain amount of argument as to whether a transfer by a manager otherwise than for legal necessity was void or merely voidable, but it was agreed that it was now to be taken as settled law that it is only voidable. There is such a weight of authority in favour of this that it does not appear to us to be necessary to cite any decision. The question, however, is whether such a transfer is liable to be avoided merely by the sons or coparceners or whether it may be avoided by transferees of the interest in the property of the coparceners. A Full Bench of this Court Muhammad Muzamli-ullah-Khan v. Mithu Mal [1911] 33 All. 783, in 1911 decided with no uncertain voice in favour of the transfer being voidable by transferees of the coparceners' interest. The head-note in the Indian Law Reports is not accurate and that in the Allahabad Law Journal Report is insufficient.

8. In that case the head of a joint Hindu family had mortgaged property belonging to the joint family, but neither for legal necessity nor to pay an antecedent debt. Subsequently the mortgagor sold the property to a third person who remained in possession for more than 12 years. Richards, C.J. held that the transferee of the property by the subsequent transfer having acquired title against the coparcenary body by 12 years adverse possession must be deemed a transferee of the coparcenary body and held that such transferee could avoid the mortgage. Banerji, J. held that the fact of the coparceners having allowed the transferee under the subsequent transfer to remain in possession raised a presumption that the sale to him was for family necessity and with the assent of the other members. Chamier, J., held that although their Lordships of the Privy Council in the case of Balgovind v. Narain Lal [1893] 15 All. 339, had by their language suggested that the mortgage was voidable and not absolutely void, yet until there was a definite pronouncement on the point by the Privy Council he was bound by a Pull Bench decision of this Court Chandradeo Singh v. Mata Prasad [1909] 31 All. 176, to hold that the transfer was absolutely void and not merely voidable. Consequently he held that the question did not arise whether, if it was voidable, it was voidable only by the coparceners themselves and not by their transferees. He added, however, as an obiter dictum that assuming that a transferee of the coparcenary body could question an assignment by the manager, a transferee in possession could only do so

if a trial of its validity was necessary for his protection against the claim of another person.

9. The context clearly showed that by the words 'for his protection' he meant

for the protection of his particular possessory interest.

10. The condition laid down in this obiter dictum appears to us sound but not to go far enough. We think that the transferees can use the power of avoidance not merely for the protection of the particular right or interest transferred to him but also for the definition of that interest, when there can exist a doubt as to the quantum or nature of the interest acquired by him.

11. It is clear then that the majority of the Full Bench in that case held that transfer by a manager otherwise than for legal necessity could be avoided by the transferees of the coparceners, and it was held by one judge, namely Richards, C.J., that it was voidable even by persons who had acquired the title of the coparceners merely by adverse possession. The case of Jageshar Pande v. Deodat Pande A.I.R. 1924 All. 51, has been cited but does not appear to us relevant. In that case it was held that where a certain person had, as manager of the family consisting of himself and his son, made a deed of gift in favour of his widow the reversioners could not call in question the deed of gift, as the only persons who could do so would be the coparceners, and the reversioners had not acquired the coparcenary interest. The decision has probably been cited, because it contains the passage:

there is ample authority for the view that an alienation by the manager of a joint Hindu family is not absolutely void. It is voidable at the instance of the persons whose interests are affected by it, namely the coparceners in the property.

12. But the context left it open whether by the expression 'the coparceners in the property' the Judges included or excluded the transferees of the coparceners. It was immaterial to decide this question for the purposes of that case. The next case cited is Sarju Parsad v. Mangal Singh : AIR1925All339 . It was there held that a next reversioner could challenge a mortgage executed by a father as manager of a joint. Hindu family consisting of himself and his son and could challenge a decree obtained through fraud or collusion against the mortgagor's widow. The use of the term in the judgment 'next reversioner' seems to suggest that the widow was alive. If so, this decision was in direct conflict with Jageshar Pande v. Deodat Pande A.I.R. 1924 All. 51, just noticed. This decision is at any rate authority for holding that the reversioners who come into property on the death of a widow are entitled to challenge a transfer made by the manager of the family whose rights they inherit. Reliance is placed on the Full Bench decision of Muhammad Muzamil Ullah Khan v. Mithu Lal [1911] 33 All. 783 referred to above,

13. The last mentioned Bench decision was again followed more recently by a two-Judge Bench of this Court on which one of us sat, namely Raj Ballaw v. Dalip Narain Singh : AIR1926All718 , where it was held that a transferee of the whole interest in joint family property, by an execution sale under a money decree, is entitled to contest the validity of a transfer made by one of the members of the family on the ground of want of legal necessity. In Subba Goundan v. Krishnamachari A.I.R. 1922 Mad. 112, it was held that a sale by a father or managing member of a joint family for alleged necessity will be good till avoided, as it is open to the other coparceners to affirm the transaction. This decision is only of importance in the present connexion, owing to the fact that it states that the coparceners may affirm the transaction which we take to mean that an affirmation by the coparceners raises an unrebuttable presumption that the alienation was for necessity, and we agree with the proposition in this sense.

14. There remains the only decision by the Privy Council bearing on the point which we can discover. This is the case of Nasir Uddin v. Ahmad Husain A.I.R. 1926 P.C. 109. In that case a Hindu father as head of a joint family contracted to sell certain property to the plaintiffs but subsequently sold it to one set of the defendants in breach of his earlier contract. A suit for specific performance was brought by the plaintiffs against the father and the subsequent purchasers. The subsequent purchasers pleaded that the contract in favour of the plaintiffs was an improvident one, that is to say, was a contract to sell for an insufficient sum. It was accepted that the coparceners could have avoided the contract on this ground. A two Judge Bench of the Allahabad High Court had held that the subsequent purchasers as being only transferees of the coparceners could not call in question the validity of the contract. Their Lordships stated that they

are not satisfied that the Judges in the appellate Court were right upon this; but they did not feel it necessary to pronounce upon this point.

15. They decided the case on the ground that the contract was for sale at a sufficient price, We cannot but regard the remarks by their Lordships in this case as at least showing that at the time they were not disposed to accept the proposition that a transferee of coparceners could not avoid a sale by the manager otherwise than for legal necessity. As the point was not determined, it is no authority for holding the contrary, but it does justify the argument that at any rate in that case their Lordships, though asked to accept the view that the transferees could not avoid, refused to do so.

16. There remains a decision of a two Judge Bench of this Court which has been strongly relied upon by the appellants in support of their contention that the transferees of the coparceners cannot exercise the right of avoidance. It is Durga Prasad v. Bhajan [1920] 42 All. 50 decided by Pramada Charan Banerji, J. and Wallach, J., An examination, however, of this decision shows that it in no way helps the appellants and has no bearing on the present question. In that case the father of a joint Hindu family with two sons mortgaged some of the joint family property. Subsequently a later managing member of the family, as it existed at a later date sold the mortgaged property, and the purchasers of it brought a suit for redemption of the mortgage. The suit was resisted by the mortgagee on the ground that the later sale of the property was not for legal necessity, and it was held that this plea was not open to the mortgagee. Now it is obvious that what the mortgagee acquired at the time of the mortgage was only the rights of a mortgagee and that he could not thereby acquire the interest of the coparceners to avoid a subsequent sale. The mortgagee was therefore never the successor-in-interest of the coparceners in respect of the right to avoid. The decision would appear to be correct and consistent with the view expressed by Chamier, J., in the obiter dictum in the case of Muhammad Muzam-il-Ullah Khan [1911] 33 All. 783, discussed above. For the mortgagee was attempting to use avoidance of the later transfer for the purpose of resisting redemption of his mortgage and not merely for the protection or definition of his mortgage. At any rate this decision is no authority for anything more than that it is not everybody whose interest it might be to get a transfer effected by a manager declared invalid who can challenge that transfer but only persons who have acquired property from the coparceners carrying with it a right of avoidance.

17. It is, therefore, clear that there is a consensus of authority that a transferee of the interest of the coparceners may call in question a transfer made by the manager even after the coparceners themselves have ceased to have any interest in the property. Apart from this, there is a consideration which appears to us decisive for holding that this is so. If the transferees of the coparceners could not exercise the powers of the coparceners to avoid a transfer then this fact would operate adversely to the coparceners in disposing of their interest in the property. This being so, the improper sale by a manager otherwise than for legal necessity would operate to the disadvantage of the coparceners unless they, previous to the alienation of their interest, took steps to avoid the transfer by the manager. It does not appear equitable that the unlawful action of the manager should put the coparceners to this trouble and expense.. We take it as settled law that the coparceners can avoid an improper transfer by the manager otherwise than by bringing a suit. They can merely refuse to be bound by it. The only ground that appears to us to exist for refusing to the transferees of the coparceners the right to avoid is that in cases where the coparceners sell property previously mortgaged by the manager or subject to that mortgage it would seem inequitable that the transferees having paid a smaller price for the property by reason of the existence of the mortgage should be able to deny the validity of the mortgage. This result, however, is avoided by holding, as suggested above, that a transferee from a coparcenary body can only invoke a power to avoid a previous alienation by a manager when it is necessary for the protection or definition of the property or right acquired by his transfer. In the case of a voluntary transfer by deed the coparceners define the property or right transferred; there is no occasion for further definition; and the transferee is bound by the definition of the coparceners.

18. We would summarize our view of the law as based on the above decisions on this subject as follows: A transferee of any property or interest in property from a coparcenary body acquires along with that property or interest the right of the coparcenary body to call in question a previous alienation made by the manager of the family, otherwise than for legal necessity, for the purpose of protecting or defining the property or interest acquired. Certain results follow from this definition. Such transferee cannot call in question a subsequent alienation since at the time of the acquisition to which the right attaches, there was exhypothesi no alienation to avoid. The power cannot be used by a mortgagee to resist a suit for redemption by a subsequent alienee of the equity of redemption, since this would be using it for a purpose beyond protection of the mortgagee's interest. Nor can it be used by the transferee of a mere equity of redemption under a voluntary deed of transfers; for in this case the deed would have sufficiently defined the interest acquired A purchaser, however, at a Court sale in execution of a decree for sale of property subject to a mortgagee can use the power to impugn the mortgage unless the validity of the mortgage has been decided by the Court as against the mortgagor, i.e., the coparcenary body; because the purchaser purchases at the risk of getting something worse and also on the chance of getting something better than stated as sold in the proclamation sale; 'caveat empter, gaudeat empter.'

19. The power of avoidance in the hands of the transferee cannot be greater than that which would have been exercised by the coparcenary body at the moment immediately preceding the transfer. Hence if the coparcenary body at that moment were a father and sons and the manager, the father; the transferee would be bound by the sons' obligation to pay a father's antecedent debt. Hence again if the coparceners had affirmed the previous alienation, the transferee would be bound by the unrebuttable presumption that the alienation was for legal necessity.

20. Now in this suit the defendant-respondent Gajendrapal Singh and his co-transferees (defendants) relied on two transfers in their favour. One was the second mortgage executed in their favour by the mortgagor coparceners; and one was the Court sale of the property in pursuance of their second mortgage but subject to the appellants' first mortgage. The deed of second mortgage is not before us but we understand that it contained no mention of the first mortgage. If it had, the interest of Gajendrapal Singh etc. would have been sufficiently defined by that mortgage-deed, and they could not have impugned the validity of the first mortgage. Assuming, however, as we must in the absence of evidence before us that it did not, the question arises whether as second mortgagees they were entitled to impugn the validity of the first mortgage. On the conclusions reached above they would be. For by not expressing the second mortgage as being subject to the first, the mortgagor coparceners must either be held to have called in question the first mortgage or at any rate to have made it necessary for the second mortgagees to call it in question in order to define their interest. Their interest as second mortgagees has now merged in their interest as purchasers by Court sale (in execution of their decree as second mortgagees) of the property subject to first mortgage. This being so, it is unnecessary for them to claim to avoid as second mortgagees (possibly they might keep their mortgage alive for this purpose) as they can claim to avoid as successors-in-interest to the mortgagor-coparceners of the rights to avoid.

21. The second plea is that Gajendrapal Singh as subsequent mortgagee was not entitled to challenge the mortgagee's interest by reason of a certain compromise arrived at in a previous suit. The previous suit was one brought by Gajendrapal Singh and others on the basis of a mortgage. The plaintiffs were parties to that suit, but it is not stated in the judgment of the lower appellate Court in what precise capacity they were impleaded. In the course of the argument, counsel for the respondent stated that they were impleaded as the holders of a third and later mortgage to that held by Gajendrapal Singh etc. Any way they set up a prior mortgage, i.e., the mortgage in question in this present suit. Gajendrapal Singh etc., entered into a compromise admitting that the mortgage set up by the plaintiffs was prior in time to their mortgage and agreeing that the mortgaged property should be sold on foot of their mortgage, i.e., the second mortgage, subject to the first mortgage of the plaintiffs, i, e., subject to the present mortgage. It is urged that after entering into such a compromise it is not open to Gajendrapal Singh to dispute the validity of the present mortgage. The District Judge repelled this argument on the ground that the compromise did not amount to any direct admission as to the validity of the prior mortgage but only amounted to an agreement that the property should be sold subject to the prior mortgage whatever that mortgage was worth. Now it is urged as ground 2 in the memorandum of appeal that

on a correct interpretation of the compromise it is not open to the defendants to challenge the mortgage in suit.

22. This clearly amounts to a plea of estoppel based on the compromise itself, and not on the decree and as such in our opinion it fails. We have already held that Gajendrapal Singh etc., could have called in question in that suit the validity of the first mortgage because it was necessary to do so to define their interest. So far from doing so, they agreed to the sale of the property for the discharge of the second mortgage subject to the first mortgage. The question there is whether their doing this amounted to an agreement never to call that mortgage in question or merely to an agreement not to call it in question in that suit. The compromise is not before us, nor have the appellants got it printed as they were bound to do if they relied on its terms. We must rely, therefore, on the description of it contained in the judgment of the lower appellate Court. Generally speaking, it may be said that a compromise filed in a suit is intended, in the absence of anything expressed to the contrary, to be for the purpose only of effecting the decree in the suit and not for any ulterior purpose. So construed we concur with the District Judge in holding that the compromise should be construed merely as an agreement that the property should be sold subject to the first mortgage (whether valid or invalid). Gajendrapal Singh etc., were not bound to make the first mortgagees a party to their suit, and if they had not done so, and the property had been sold, they, in a subsequent suit by the first mortgagees could have called in question that first mortgage.

23. It is unnecessary to consider whether apart from the compromise the compromise-decree in any way operates as res judicata to prevent Gajendrapal Singh etc., questioning the validity of the first mortgage. The plea of res judicata has not been taken. We may state, however, that without the pleadings in that suit it would have been impossible to hold that a plea that the second mortgage was voidable was taken and adjudicated upon by the compromise-decree. For a compromise decree cannot be taken to decide every point that ought to have been pleaded, as a decree on the merits must. See Bower's Res Judicata (1924) p.24, and our recent judgment Lal Ram Narain v. Mt. Kaitki Kuer, Second Appeal No. 2024 of 1925, decided on 14th December 1928.

24. Consequently we hold that Gajendrapal Singh etc., as transferees from the mortgagor-coparceners are entitled to call the mortgage in suit in question, and on the findings of fact that mortgage must be deemed void. The present appeal is also unmaintainable against Gajendrapal Singh alone, and we see no reason for allowing any other of the defendants to be joined as respondents at this stage. The appeal, therefore, fails and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //