Skip to content


Katwaroo Singh Vs. Dharam Deo Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All318; 29Ind.Cas.926
AppellantKatwaroo Singh
RespondentDharam Deo Singh and ors.
Excerpt:
hindu law - joint family--suit against all adult members--subsequent suit by a minor member to set aside decree on ground that he was no party to former litigation--burden of proof--legal necessity. - interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - the court below stated in its judgment that there was no evidence whatsoever to show that the money had been borrowed for family necessity but it went on to hold that the plaintiff was effectively represented in the former suit by the adult male members of the family, and that it was for him to prove that the loan had not been taken for any family necessity, and as the plaintiff had failed to prove any such thing, the suit was..........had been found due from the other members of the family. it seems to me that it is clear that the adult members of the family who took this loan were acting as the managing members of the family. there were no other adult male members at all. they were sued by the mortgagee. the latter took the precaution of making all their sons and grandsons parties to the suit. he apparently was unaware, though this is by no means clear, of the existence of the present plaintiff. it is difficult to understand why if he had been aware of his existence, he should not have made him a party to the suit. be that as it may, it is quite clear that the four adult male members of the family who contracted the mortgage were also sued and were the managing members of the family. there is no allegation of fraud.....
Judgment:

Tudball, J.

1. The facts of this case are very simple. The plaintiff in the year 1903 was a minor member of a joint Hindu family. There were three branches of this family in existence; that of the plaintiff, which was represented by the plaintiff's brother, Charitar Singh, and himself; that of Hanoman Singh and Sita Ham Singh, and the third branch of Chatursal Singh. In the year 1903 on the 16th of July, Hanuman Singh, Sita Ram Singh, Charitar Singh and Chatursal Singh, that is, all the then adult male members of the family, combined together to borrow the sum of Rs. 99-8-0 on a mortagage of some of the family property. In the deed it is set out that the money was taken for the purpose of purchasing bullocks. The family was a family which depended upon agriculture for its subsistence. The plaintiff's name does not appear in the bond. A suit was brought and a decree obtained on the 23rd of August 1912. The four executants of the bond, and all their sons and grandsons, in fact all the members of the family except the plaintiff, were made parties to that suit. The plaintiff was still a minor. The decree was obtained and on the 2nd of June 1913, there was a final decree for foreclosure. Possession was taken by the mortgagee on the 14th of June 1913. On the 26th of November 1913, the present suit was brought in the name of the plaintiff to set aside the whole transaction and to recover possession of the property on the one ground only that he was not a party to the previous suit. Among other defences the defendants pleaded that the sum of Rs. 99-8 was taken for family necessity. The Court of first instance framed an issue as to whether or not the money had been taken for family necessity. The learned Munsif in writing down the issue in his, judgment omitted certain words, but this omission was only in the judgment and not in the issue which was drawn up in the vernacular. The Munsif held that the loan had been taken for family necessity, that the plaintiff had been fully represented at the trial in the former suit and dismissed the suit. The Court below stated in its judgment that there was no evidence whatsoever to show that the money had been borrowed for family necessity but it went on to hold that the plaintiff was effectively represented in the former suit by the adult male members of the family, and that it was for him to prove that the loan had not been taken for any family necessity, and as the plaintiff had failed to prove any such thing, the suit was bound to be dismissed. The main point pressed before me is that it was for the defendants to prove that the loan was taken for family necessity and was binding on the plaintiff and that the defendants not having proved it the plaintiff was entitled to a decree at least as to his 1/8th share of the estate, if not of the whole of the mortgaged property. The plaintiff in his plaint had asked for possession of 1/8th (his own share) of the property without payment of any sum and for the remaining this on payment of what had been found due from the other members of the family. It seems to me that it is clear that the adult members of the family who took this loan were acting as the managing members of the family. There were no other adult male members at all. They were sued by the mortgagee. The latter took the precaution of making all their sons and grandsons parties to the suit. He apparently was unaware, though this is by no means clear, of the existence of the present plaintiff. It is difficult to understand why if he had been aware of his existence, he should not have made him a party to the suit. Be that as it may, it is quite clear that the four adult male members of the family who contracted the mortgage were also sued and were the managing members of the family. There is no allegation of fraud or of any dishonesty in tin matter. The plaintiff came into Court and asked for relief on the sole ground that he had not been made a party to the former suit. He did not even allege that the mortgage was not binding upon him or that it was incurred for other than family necessity. In the circumstances of this case it seems to me that the plaintiff was fully represented in the former litigation; that he is not entitled to any relief on the mere ground that lie was no party to the former suit, and it will be necessary for him to prove in the present case that the loan was not taken for family necessity. This he did not attempt to do. In my opinion he is not entitled to any relief and the Court below has properly dismissed the suit. The appeal, therefore, fails and is dismissed with costs.


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