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Mt. Ashrafunissa Begam Vs. Sahdeo Pande and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1929All479; 117Ind.Cas.609
AppellantMt. Ashrafunissa Begam
RespondentSahdeo Pande and ors.
Cases Referred and Sahu Ram Chandra v. Bhup Singh A.I.R.
Excerpt:
- - 61. coming to the first plea, the lower appellate court clearly misdirected itself, when it stated that the manager of a family in comfortable circumstances is not entitled to use the family property to improve still further those circumstances......to defendant 1, and to secure his keeping correct accounts executed a mortgage-deed of his own joint family property. on this deed a decree was obtained. the sons pleaded that the joint family property was not liable under the security bond or under the decree obtained thereon.2. the trial court held that even if the family income was sufficient for the maintenance of the family, the extra income derived, namely rs. 5 a month was for the benefit of the family and worth the risk incurred by hypothecating as security family property worth rs. 500.3. in appeal the subordinate judge held that as the family was in comfortable circumstances, it was unnecessary for defendant 2 to enter into service or risk the joint family property by a security bond to secure the faithful discharge of his.....
Judgment:

Ashworth, J.

1. This second appeal arises out of suit brought by the plaintiffs against their father, defendant second party, and the wife of a decree-holder against their father, for a declaration that a decree obtained by the husband of defendant 1 against their father on the basis of a deed of security, dated 18th January 1919, is void as against the plaintiffs. The plaintiffs lost the case in the trial Court, but were successful in the lower appellate Court. Hence this appeal. The plaintiffs and their father admittedly formed a joint Hindu family in comfortable circumstances. The father in addition to his own zamindari undertook the management of the zamindari belonging to defendant 1, and to secure his keeping correct accounts executed a mortgage-deed of his own joint family property. On this deed a decree was obtained. The sons pleaded that the joint family property was not liable under the security bond or under the decree obtained thereon.

2. The trial Court held that even if the family income was sufficient for the maintenance of the family, the extra income derived, namely Rs. 5 a month was for the benefit of the family and worth the risk incurred by hypothecating as security family property worth Rs. 500.

3. In appeal the Subordinate Judge held that as the family was in comfortable circumstances, it was unnecessary for defendant 2 to enter into service or risk the joint family property by a security bond to secure the faithful discharge of his duties. He remarked that if the joint family had consisted of the father and the sons only, he was inclined to the view that the ancestral property could be liable, because the sons were under a pious obligation to discharge their father's debt, but he found that there was an uncle of the plaintiff, who was also a member of the joint family, and this uncle was under no such pious obligation. Consequently as the plaintiffs, their father and their uncle were coparceners and not cosharers the security bond could not be enforced by selling the shares in the joint family property that would fall to the father and the sons on partition.

4. The points urged in this appeal are in effect that the lower appellate Court was wrong in holding that a mortgage on the family property executed to secure an alleged advantage to the family could be held not to be for legal necessity, because the family were comfortably off. It is pleaded also that in any case the share of the plaintiffs and their father in the joint family property should be held liable even if the share of the uncle was exempted.

5. I will deal with the second plea first, The lower appellate Court appears to me to have entertained an incorrect view of Hindu law in suggesting that the obligation of the sons to discharge their father's debt unless tainted with illegality or immorality, had any bearing on the present case. When the father executed the mortgage, there was no debt due from him, and the mortgage was executed to secure not an antecedent debt but merely a possible one The doctrine of the pious obligation of a son to pay his father's debt only extends to an antecedent debt. An alienation or transfer of the joint family property by a manager (otherwise than for legal necessity and otherwise than for an antecedent debt), if avoided by other coparceners, is entirely ineffectual and will not operate to transfer his own share: Lachhman Prasad v. Sarnam Singh A.I.R. 1917 P.C. 41 and Sahu Ram Chandra v. Bhup Singh A.I.R. 1917 P.C. 61. Coming to the first plea, the lower appellate Court clearly misdirected itself, when it stated that the manager of a family in comfortable circumstances is not entitled to use the family property to improve still further those circumstances. The decree, therefore, of the lower appellate Court cannot be sustained on the reasons advanced by it.

6. We are thus left with a finding of fact of the trial Court that the mortgage was for the benefit of the family. I might refer the case back to the lower appellate Court for a finding of that Court whether it agreed or disagreed with this finding, but the materials before me are sufficient to enable me to decide that matter myself. In case of doubt I should feel inclined to leave undisturbed the finding of fact of the trial Court. I may say that I agree with that finding. It is true that the income to be derived from the father's assuming the management of the neighbouring estate was small, namely Rs. 5 a month and the risk to the property of his own family was considerable, Rs. 500 but I am informed that what influenced the father in accepting the management of the neighbouring estate was that he could combine it with little expenditure of time and trouble with the management of the estate of his family, and moreover would be in a position to manage his own estate more conveniently when combined in management with the other estate as a single unit. It is the essence of economical management that the manager should neither have too much to do or too little to do. The presumption is that the father believed that the combination of the management of the two estates would be for the benefit of his own estate, and in such matters the exercise of an honest and reasonable discretion by the manager cannot ordinarily be questioned.

7. The lower appellate Court has stated that the defendant's counsel were unable to show him a single case in which it had been held that a manager of the joint family can charge the family property for the honest performance of his duties in the service of another. This may be so, but the question has to be decided on the general principles applicable to the powers of a manager. I should have little hesitation is holding that a manager cannot use the joint family property to obtain a post profitable to himself alone, but on the other hand, where, as in this case, it must be held that the manager took up the duties of the new post with the object of securing economical management of his own family property, then I am unable to say the manager exceeded his powers or burden his own family property otherwise than for legal necessity. The consequence is that this appeal is allowed and the decree of the trial Court is restored. The appellant will get her costs in the lower appellate Court and in this Court.


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