1. This is a first appeal against a decree passed by the learned first Subordinate Judge of Saharanpur, in favour of the plaintiff in a suit for sale upon the basis of a mortgage. It will be convenient to state certain facts in chronological order. On 3rd August 1923, Kishan Lal, the plaintiff, executed a theka or lease in favour of Ran Singh, one of the original defendants, and of Indarjit Singh who is not a party to this suit. The property comprised in this lease was an area of about 150 village bighas in the village of Landhaura and 85 village bighas in the village of Kabirpur Mazra. The lessees were to pay every year a sum of Rs. 310 to the Government as revenue and a sum of Rs. 1,120 to Kishan Lal. On 22nd December 1924, Kishan Lal sold the land in Kabirpur Mazra to a person who is not a party to the suit and on 23rd December 1924, be sold the property in Landhaura for a sum of Rs. 22,000 to Indarjit and to the original defendants 1-4, i.e. Ran Singh, Balwant Singh Bharat Singh and Durga Singh. Indarjit acquired one-third of the property and paid for it in cash. The other four vendees, in order to supply consideration on their part executed a mortgage of the property which they had purchased and of certain other property in five villages which is admittedly their ancestral property. The amount secured by this mortgage was Rs. 15,000. The deed of sale and the deed of mortgage were both presented for registration on 23rd December 1926. Then on 22nd December 1930, Kishan Lal instituted the suit which has given rise to this appeal on the basis of the mortgage. He claimed a sum of Rs. 15,000 as principal and a sum of Rs. 14,600 as interest. The rate of interest to which the parties had agreed in the deed was Re. 1 per cent per mensem compound. The plaintiff impleaded not only the four mortgagors, but also their sons and grandsons who were defendants 5-14. As we have already said, the plaintiff obtained a decree from the Court below. This appeal has been instituted by the sons and grandsons of the mortgagors. Their defence to the suit was that they and the four mortgagors were all members of a joint Hindu, family and that there was no necessity for the transfer by way of mortgage. We may mention at this stage that Durga Singh is the son of Mohar Singh and that Bharat Singh, Balwant Singh and Ran Singh are the grandsons of Fateh Singh. Mohar Singh and Fateh Singh wer brothers. Indarjit Singh who was concerned in the lease and in the sale is the grandson of Jiwan Singh who was another brother of Fateh Singh's and Mohar Singh's.
2. The first question which has arisen is whether it is true that the four mortgagors and their sons were all members of the same joint Hindu family. Although the property in the five villages other than the village to which the deed of sale referred is admittedly ancestral, this question of jointness has acquired some importance because it is pointed out that Durga Singh and Balwant Singh had no sons living when the mortgage was executed. Durga Singh's son, Bhopal Singh, was-about 8 months old and Balwant Singh's son, Bijai. Pal Singh, was about one year old at the date of the institution of the suit. The learned Subordinate Judge in discussing this question has said:
There is no proof on behalf of the plaintiff that the family of the mortgagors was separate, nor is there any such plea clearly taken in the plaint. There is a presumption of Hindu law that the family is joint and more so in the case of own brothers.
3. It has been argued that there was no presumption in favour of jointness because Indarjit Singh had admittedly separated from the rest of the family. We may concede that where one member has separated from the others, the presumption that the family is joint disappears; but, we must emphasize the fact that no contrary presumption arises that the other members have separated. In these circumstances, the question whether the defendants were members of the joint Hindu family or not is a question dependent on proof. Learned Counsel for the plaintiff-respondent has placed some reliance upon the recitals in the mortgage-deed. In describing themselves the mortgagors have said that Bharat Singh was acting on his own behalf and as the guardian of his son, Raj Bhagwan Singh, and as member and, managing head of a joint Hindu family, and Ran Singh has also described himself as the managing head of a joint Hindu family and the guardian of his minor sons. The conclusion which counsel for the plaintiff would have us draw is that the four mortgagors obviously considered themselves as separate, the two who-had sons acting as managing members of two separate joint Hindu families consisting of themselves and their sons. He places reliance also upon the fact that each of the mortgagors held himself liable for a definite and separate amount of the mortgage debt. We do not think that any importance can be attached to the recitals in the deed which evidenced the transaction. A reference has also been made to the sale deed under which specific -shares in the property are allotted to the four mortgagors. The same argument applies to this document as to the deed of mortgage. Apart from these documents there is only oral evidence to support the allegation that the members of the family had separated. The witnesses are Munshi Ram, Nihal Singh, Hnrkesh Singh, Ram Singh and Chater Singh. Thee witnesses have certainly said that the members of the family are separate, but their evidence is vague and unconvincing. It is not quite clear whether they mean that the various members of the family are separate in the sense that they are no longer members of a joint Hindu family or whether they merely mean that for the sake of convenience they live in separate houses or separate parts of a house and have their meals separately. There is evidence on the other side of a similar kind and all we can say is that none of this evidence is sufficient to justify a definite finding either way.
4. In these circumstances it is important to consider on which party the burden of proof lies. It has been argued on behalf of the plaintiff that the defendants-appellants have asserted their right to the mortgaged property in face of a definite document which has been executed in his favour and that the burden of proof lies upon them. We cannot agree that there is any force in this argument. The plaintiff has chosen to implead the defendants-appellants and is seeking to obtain a decree against them which will result in their being deprived of the property if it is theirs. In these circumstances we consider that the burden of proof is upon him. In order to illustrate our point we may suppose a somewhat extreme hypothetical case. Say that A who has no title in certain property mortgages it to Rule Thereafter B has some reason to suspect that C may be the real owner. B institutes a suit against A on the basis of the mortgage and impleads C. Can it be said that B will obtain a decree against C unless C can positively establish his own title? Manifestly it cannot. It is an elementary principle that nobody can deprive another of property unless he can establish his own absolute title thereto and if he is a transferee he must establish not only the validity of his transfer but the title of his transferor. No question of title would arise between A and B, but such a question would certainly arise between C and B and. B could not obtain a decree against C unless he could establish the validity of his transfer from A and the validity of A's title to the property which he purported to transfer. The position in the case before us is similar. The plaintiff-respondent cannot obtain a decree against the defendants-appellants, who were no parties to the deed of mortgage, unless he can establish that the mortgagors had a right to transfer the whole property to him or at least were entitled to execute a deed which was binding upon their sons the defendants-appellants. We hold therefore that the burden of proof was upon the plaintiff and that, as the plaintiff has failed to establish that the members of the family were separate, we must proceed on the finding that all the defendants were members of a joint Hindu family and that the mortgagors were not the absolute owners of the whole, property which they purported to transfer.
5. The next question which, arises is whether the transfer of the ancestral property is binding upon the defendants-appellants. The learned Subordinate judge has found that this was a transaction which, at the time when the mortgagors entered upon it, was reasonably profitable and advantageous to the family. We do not consider that this finding would justify the conclusion that the transaction was binding upon the defendants-appellants. It is now settled that a transaction entered into by the manager of a joint Hindu family to be binding on the other members need not be one which the manager is compelled to enter into as a defensive measure in order to protect the family property. There may be cases in which a transaction is so advantageous that any prudent person would certainly enter into it and in there circumstances such a transaction would be binding upon the family as a whole. We do not think however that this principle should be extended too far. It must not be supposed that the managing member of a joint Hindu family is entitled to transfer the family property merely because he thinks that the transfer will be for the benefit of the family. We consider that something more than that is required to make the transaction binding upon the family. We think it must be a transaction arising out of a situation of which no prudent person acting as manager could fail to take advantage. The manager is not entitled to speculate with the family property even if he does so in good faith believing that his conduct of affairs will ultimately be of advantage to the family.
6. In the present case there has been some argument about the details of the transaction. It has been pointed out that Indarjit, who was acting on his own behalf, purchased one-third of the property at the sale and that the property in the other village of Kabirpur Mazra was purchased by an independent person. Ram Saran who had nothing to do with the family. It is suggested that there is no reason to suppose that Indarjit and the other vendee were not prudent men who would have acquired property for a price which was unfair. Eighty five bighas was sold for Rs. 4,000 to Ram Saran. The price paid would be at the rate of about Rs. 47 a bigha and at this rate the 450 bighas in Landhaura if of the same quality would be worth very nearly Rs. 22,000 The learned Subordinate Judge has also come to the conclusion that the price was reasonable on another basis. The revenue payable was Rs. 310 and the amount of rent paid by Indarjit and Ran Singh as lessees was Rs. 1,020 a year. He has thought that the lessee would not have taken the lease unless they had hoped to make a reasonable profit out of it and he says that even if this profit is considered to be no more than Rs. 800 a year, even then the annual profit would be Rs. 1,820 and at 25 years' purchase the capital value would be Rs. 22,000. We very much doubt whether any person would give a lease of property bringing in an annual income of Rs. 1,820 for a sum of Rs. 1,020. We realise that the mortgagors may have hoped to make a certain income out of the property, but we find it difficult to understand how they could have expected to pay off the principal debt of Rs. 15,000. The interest alone would have amounted to Rs. 1,800 a year.
7. It has been argued that the real reason why the mortgagors purchased the property in Landhaura and transferred that in the other five villages was that they had hopes of bringing a large part of the Landhaura property under their personal cultivation because it was near their homes whereas the land in the other villages was largely in the possession of tenants and those villages were some distance away from the place where they live.
8. Even if this was so, it does not appear that the transaction was one that was very clearly for the benefit of the family. The most that can be said for it is that it was not obviously a foolish transaction and that it might in some circumstances have been a success. That, as we have said, is not a sufficient reason for holding that the transaction was binding upon the defendants-appellants. It was at best a speculation which might or might not have been successful. The managing members of a joint Hindu family cannot transfer the family property in circumstances such as these. We hold therefore that the transaction was not binding upon the defendants-appellants and that the plaintiff-irespondent is not entitled to a decree against them upon the basis of the mortgage.
9. As a result of our findings we must set aside the decree of the Court below; but we feel that we cannot dismiss the suit entirely because if we did so, the result would be that the defendants would retain the property which they had purchased under the deed of sale and would not supply any consideration whatsoever to the plaintiff. This aspect of the affair was present to our minds during the course of the arguments and we suggested to learned Counsel for the plaintiff-respondent that there might be certain courses open to us which protect him as far as was legally possible. These courses were : (1) to give the plaintiff-respondent a personal decree against the four defendants who executed the deed of mortgage; (2) to return the property in Landhaura to the plaintiff', and (3) to give the plaintiff a decree on the basis of his mortgage against the Landhaura property alone and to leave it to him later to obtain a personal decree against the mortgagors under Order 34, Rule 6, Schedule 1, Civil P.C. We suggested that he might consult his client and inform us which course lie would prefer that we should take. He now tells us that his client would prefer to get a personal decree against the four mortgagors.
10. We consider that we can legally pass the decree which the plaintiff-respondent desires us to pass. It may be that Durga Singh, Ran Singh, Balwant Singh and Bharat Singh, purported to acquire the property by means of the deed of sale not only far themselves, but on behalf of the family as a whole and that when they executed the deed of mortgage they purported to execute it on behalf of the whole family. We have found however that they were not entitled to execute the mortgage on behalf of the whole family or to bind the family to supply consideration for the sale and we are prepared therefore to find and we do find that the sale and the mortgage were together a transaction into which they entered personally on their own behalf in so far as it affected the property in Landhaura. That being so, they were under a personal liability to pay the Rs. 15,000 which was the price of the property which they purchased, and there is no reason-except that two of them are dead-why a personal decree should not be passed against them in accordance with the separate liabilities which they undertook to meet. The two who are dead are Balwant Singh and Ran Singh. We cannot pass a personal decree against them, but we can pass a decree against their assets in the hands of the defendants-appellants and we would make it clear, if it is not clear already, that those assets include their shares in the property in Landhaura which was sold to them by the plaintiff-respondent.
11. We allow the appeal and set aside the decree of the Court below, but we substitute for that decree a personal decree for Rs. 2,500 against Bharat Singh, for Rs. 2,500 against the assets of Balwant Singh in the hands of the defendants-appellants for Rs. 5,000 against the assets of Ran Singh in the hands of the defendants-appellants and for Rs. 5,000 against Durga Singh with interest at the contractual rate in each case up to the date of the institution of the suit and pendente lite and future interest at the rate of 6 per cent per annum. The defendants-appellants will get their costs throughout from the plaintiff-respondent and the plaintiff-respondent will get his costs from the defendants-respondents who still survive and from the assets in the hands of the defendants-appellants, Balwant Singh and Ran Singh.