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Ram Bhajan Kasodhan and anr. Vs. Matbar Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1935All41; 152Ind.Cas.503
AppellantRam Bhajan Kasodhan and anr.
RespondentMatbar Ram and ors.
Cases ReferredIn Mangal Kurmi v. Sheo Saran
Excerpt:
- - 700, which had not been allowed by the lower appellate court, and the contention of the defendants was that they should have been allowed this amount as well. if it had been a case in which the property had been sold, it could have been argued that it did not affect the sanction, because the guardian had been able to obtain better terms thus benefiting the estate of the minors. as soon as the sanction goes out, the case has to be decided like any other case between the hindu minors who are members of a joint family and their creditors who have granted a loan to their guardian. the parties will receive and pay costs in all the courts in proportion to their success and failure......minors. it appears that some time after the death of ganga, mt. ramkali made an application to the district judge asking that she should be appointed to act as guardian of the person and property of the three minors who constituted a, joint family. the court appointed mt. ram kali to act as guardian of her three minor sons.3. on 30th april 1921, mt. ramkali made an application to the district judge asking for permission to create a mortgage over a part, of the estate of the minor (1 anna and 3 pies share) in order to pay off certain debts alleged to be due to creditors from the father of the minors. on 26th september 1921, the district judge granted permission to mt. ramkali in the following words:permission granted to the guardian to mortgage usufructuarily 1 anna 3 pies share of the.....
Judgment:

Rachhpal Singh, J.

1. This is a second appeal arising out of a suit instituted by the plaintiffs for a declaration.

2. One Ganga was the father of Ram Lagan, Ram Bhajan and Thakur. Mt., Ramkali was the wife of Ganga. When Ganga died, all his three sons were minors. It appears that some time after the death of Ganga, Mt. Ramkali made an application to the District Judge asking that she should be appointed to act as guardian of the person and property of the three minors who constituted a, joint family. The Court appointed Mt. Ram Kali to act as guardian of her three minor sons.

3. On 30th April 1921, Mt. Ramkali made an application to the District Judge asking for permission to create a mortgage over a part, of the estate of the minor (1 anna and 3 pies share) in order to pay off certain debts alleged to be due to creditors from the father of the minors. On 26th September 1921, the District Judge granted permission to Mt. Ramkali in the following words:

Permission granted to the guardian to mortgage usufructuarily 1 anna 3 pies share of the minors in Pichaura for not less than Rs. 2,100, (two thousand and one hundred) on the condition that the whole consideration money is paid into this Court on the date of execution of the mortgage-deed.

4. After this on 9th June 1922, Mt. Ramkali and one of her sons Ram Lagan (who has been found to have-been a minor at the time of the execution of the mortgage) created a mortgage in favour of the defendant-respondent No. 1, Matbar Ram, for a sum of Rs. 2,800. The money was not deposited in Court as directed by the order of the District Judge under which Mt. Ramkali was permitted to create a mortgage.

5. Plaintiffs, the other two sons of Ganga and Mt. Ramkali, instituted a suit in the trial Court for a declaration that the mortgage deed of 9th June 1922, executed by their mother and Ram Lagan was not binding upon them. The defence of the defendants was that the mortgage was binding upon the plaintiffs as it had been created by their guardian after the sanction of the District Judge had been obtained. It was further pleaded that the loan had been taken by Mt. Ramkali for payment of the debts due by the father of the minors. The learned Subordinate Judge who tried the case, decreed the suit of the plaintiffs to the extent of two-thirds share. Both sides appealed to the learned District Judge who decreed the suit of the plaintiffs in full, on condition of their paying to the defendants-mortgagees a sum of Rs. 2,037-11-0. Against this decree the plaintiffs preferred a second appeal to this Court, while the defendants filed cross-objections. The cross-objections related to a sum of Rs. 700, which had not been allowed by the lower appellate Court, and the contention of the defendants was that they should have been allowed this amount as well. When the case came before me I framed two issues, which were sent, down to the Court below for findings. They were : (1). Whether the sum of Rs. 700, went towards satisfying the debts due from the father of the minors? (2) Whether the sum of Rs. 1,995, was applied towards the satisfaction of the debts due from the father of the minor

6. The learned District Judge has forwarded his findings. He has decided that there is no proof that the sum of Rs. 700, was due to the defendants from the father of the two minor plaintiffs. As regards the other substantial items in the case, he came to the conclusion that the major portion of the loan was not proved to have gone towards payment of the debt due from the father of the two plaintiffs. His finding is that only a sum of Rs. 146-8-0 has been proved to have gone towards the satisfaction of the debt due from Ganga.

7. These findings have been challenged by the learned Counsel appearing for the respondents.

8. So far as the findings of the learned District Judge on the two issues are concerned, it appears to me that the defendants have no case. The learned District Judge considered the evidence which was produced by the parties and came to the conclusion that the defendants had only been able to show that a sum of Rs. 146-8-0 was paid towards the debts due by the father of the two minors and the rest of the case had not been proved. I do not see any reason for taking a different view in second appeal.

9. The principal contention raised on behalf of the defendant mortgagees by their learned Counsel is that as the transfer was made by a certificated guardian of the two minors, there was no necessity for the defendants to have made any inquiries on the question of actual necessity or otherwise. Section 29, Guardians and Wards Act (8 of 1890) lays down that a guardian appointed by the Court shall not make any transfer without the sanction of the Court. The effect of the order passed by the District Judge granting an application for taking a loan is that the creditors who lent the money are protected, and it is not necessary for them to make further inquiries to find out whether the loan is really for the benefit of the joint family. The sanction of the District Judge is in itself a protection which they can use in their favour. It is not necessary for them to go behind the order and to make inquiries to satisfy themselves in order to find out whether the Court had made an inquiry as to the existence and binding nature of the prior debts. After a proper sanction has been obtained from the District Judge by the gruadian, the transaction entered into between the guardian and the creditors will be binding on the minors unless they can prove fraud or improper dealing on the part of the creditors. This is now a settled view. I may point out that there is a great deal of difference between the views taken by the various High Courts on the question as to what amounts to a proper sanction. Some of the High Courts have held that the order passed by the District Judge on the face, of it must show that inquiries had been made by the Court and that the result of those inquiries proved that there was necessity for taking a loan; while other High Courts have held that the fact that the order does not show that inquiries were made is a mere irregularity. For the purposes of deciding this case it is not necessary to enter into this question at all. We will take it that where a proper sanction has been given by the District Judge to a guardian to raise a loan and he takes a loan and subsequently the minors come to Court to avoid that loan, then they must show that the loan is not binding upon them. Where the loan has been taken with the sanction of the District Judge, the burden of proof shifts. In ordinary cases it is for the transferee to prove that a loan taken by a guardian of the Hindu minors who constitute a joint family was for the purpose of family necessity. But once the sanction is obtained, the burden of proof would shift and, if the minors come to avoid the transfer, then it will be for them to show that the transfer is not binding upon them.

10. In the case before me, I have quoted above the terms under which the District Judge granted permission to Mt. Ramkali to take a loan. One of the conditions laid in the order was that the entire amount of the loan taken by the guardian would be paid into Court on the day on which the mortgage deed is executed. The other was that the guardian was not to mortgage the property (1 anna 3 pie share) for a sum of less than Rs. 2,100. It is conceded that both these conditions were not complied with. The effect of the order of the District Judge was that he gave the guardian permission to burden the estate mortgaged to the extent of Rs. 2,100, and no more. But I find that in defiance of the terms of the order the guardian created a mortgage for a much bigger amount. The result was that the estate had to bear a burden which was much larger than the amount for which the guardian had been given permission to mortgage. If it had been a case in which the property had been sold, it could have been argued that it did not affect the sanction, because the guardian had been able to obtain better terms thus benefiting the estate of the minors. But in the case of a mortgage the matter is altogether different. It is quite possible that when the learned District Judge gave sanction to the guardian to make a mortgage, there were reasons for him for passing an order that the amount secured by the mortgage should be paid into Court. It may be that the District Judge may have thought that when the prior creditors claim to recover the loans due to them from the father of the minors, then he will scrutinise them and satisfy himself that the amount claimed was really due. But, the mortgagees in the present case, fully knowing the terms of the order of the District Judge, granted a loan to the guardian of the minors which they were not justified to do. Not having complied with the terms of the order of the District Judge under which the guardian had been permitted to take the loan, it is not open to the mortgagees to claim any benefit which they would have been entitled to otherwise because of the sanction given to the guardian. In Mangal Kurmi v. Sheo Saran (1926) 98 I.C. 500, Mukerjee, J., took the view that where the property of a minor was alienated by his guardian in contravention of the directions contained in the order of the Court sanctioning the alienation, the alienation was not protected by the sanction. This case appears to me to be applicable to the one before me. Here also the guardian alienated the property in utter disregard of the directions contained in the order given by the District Judge and, therefore the transferees under the terms of the mortgage deed in question cannot claim that they are protected by the sanction. As soon as the sanction goes out, the case has to be decided like any other case between the Hindu minors who are members of a joint family and their creditors who have granted a loan to their guardian. In order to establish the fact that the mortgage deed is binding on the minors, the mortgagees have to show that the loan was taken for family necessity and the amount so taken was paid in satisfaction of the loans due by the father of the minors. On this point, as I have already remarked, the finding of the learned District Judge is against the mortgagees with the exception of a sum of Rs. 146-8-0.

11. For the reasons given above, I allow this appeal, modify the decree of the Court below and decree the suit of the plaintiffs on their paying a sum of Rs. 146-8-0 to the defendants-mortgagees within a period of three months from to-day. The parties will receive and pay costs in all the Courts in proportion to their success and failure.

12. The cross-objection filed by the defendants stands dismissed with costs. Permission to file Letters Patent Appeal is granted.


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