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Chaturbhuj and anr. Vs. Gobind Ram and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in74Ind.Cas.571
AppellantChaturbhuj and anr.
RespondentGobind Ram and ors.
Cases ReferredNathu v. Kundan Lal
Excerpt:
hindu law - joint family--alienation--antecedent debt-pre--emption decree, money due under--civil procedure code (act v of 1908), order xvi, rule 1--witnesses served, failure of, to attend--adjournment. - - we do not think that this decision can be regarded as good law in view of the subsequent pronouncements of their lordships of the prey council on tie question;.....essential circumstances are as follows: on the 20th of july 1911 go kind ram had obtained a pre-emption decree entitling him to acquire certain property in a village called loharra, on condition of his depositing a sum of rs. 1,072, within a prescribed time. he borrowed this amount from the plaintiffs under the deed of september the 9th, 1911, by hypothecating under the said deed not only the share in village loharra which he proposed to acquire, but also certain ancestral family property in his hands. he did not confine himself to raising the money necessary to acquire the property in loharra under the pre-emption decree. he borrowed rs. 1,246 more in order to pay off two promissory notes. he acknowledged the previous receipt of rs. 82 for incidental expenses and other unspecified.....
Judgment:

Piggott, J.

1. The plaintiffs, who are the appellants in this Court, sued Gobind Ram and his minor sons upon two mortgages of the 9th of September 1911 and the 25th of June 1922. The question in issue in the Court below and again in this Court was whether the joint ancestral property in the hands of Gobind Ham can be made liable for the whole, or for any part of the consideration under these two deeds. The essential circumstances are as follows: On the 20th of July 1911 Go kind Ram had obtained a pre-emption decree entitling him to acquire certain property in a village called Loharra, on condition of his depositing a sum of Rs. 1,072, within a prescribed time. He borrowed this amount from the plaintiffs under the deed of September the 9th, 1911, by hypothecating under the said deed not only the share in village Loharra which he proposed to acquire, but also certain ancestral family property in his hands. He did not confine himself to raising the money necessary to acquire the property in Loharra under the pre-emption decree. He borrowed Rs. 1,246 more in order to pay off two promissory notes. He acknowledged the previous receipt of Rs. 82 for incidental expenses and other unspecified necessities and he was paid Rs. 1,100 in cash and on registration. The total consideration, for this bond, therefore, comes to Rs. 3,500. Subsequently there was an appeal in the pre-emption case and the result was that, in order to secure the benefit of the pre-emption decree, Gobiad Ram had to pay a further sum of Rs. 750. For this purpose, he executed the second of the two mortgages in suit for a nominal consideration of Rs. 800, of which Rs. 45 was received in cash and Rs. 5 was set down as due on account of the interest on the older bond of September the 9th, 19,11. The Court below has held that the property acquired by Gobind Ram in village Loharra is liable for the full amount of the debt due under both mortgages according to their terms, and this finding is not challenged by the defend ants. With regard to the remainder of the consideration, the finding is that the antecedent debts due under a promissory note for a total sum of Rs. 1,246 were in fact paid up out of the consideration: Rs 3,500 received under the bond of Sep. member the 9th, 1911. Consequently, the whole of the property hypothecated under the deed, including the joint ancestral ferities by property, has bee made liable for this amount. To this part of the de creation, the defendants have submitted The a special before us is by the plaintiffs They contend,

3. Firstly, that the joint ancestral family property ought to have been made liable at least for the two sums of Rs. 1,072 and Rs. 750 applied to the satisfaction of tie pre-emption decree. Secondly, that the sum of Rs. 1,100 paid in cash at the registration of the older deed was, in fact, borrowed in order to pay off antecedent unsecured debts and was applied to that purpose. On the first point, there is one authority of this Court, the case of Nathu v. Kundan Lal 8 Ind. Cas. 836 : 33 A. 242 : 7 A.L.J. 1182 which appears to support the contention of the plaintiffs. We do not think that this decision can be regarded as good law in view of the subsequent pronouncements of their Lordships of the Prey Council on tie question; of antecedent debt to which it is not necessary for us to refer in detail. When all is said and done, the pre-emption decree merely gave Gobind Ram the option of acquiring certain property at a certain price. Be was laid under no obligation to acquire the property unless he chose. It seems to us that it would be very dangerous to hold that the money required to satisfy the pre-emption decree was an antecedent debt due from Gobind Rain on the date on which each of these mortgages respectively was executed. On the second point, we have come to the conclusion that we cannot come to a decision without exercising our power under Order XII, Rule 27 of the Civil Procedure Code to call for certain further evidence. We find that as early in the trial of the suit as the 29th of January 1919, the plaintiffs lad made a full disclosure of their case regarding this item of Rs. 1,100, They mentioned the names of four creditors of Gobind Ram whose satisfaction they allege the money to have been borrowed and whom they allege to have been actually paid off by means of this money. The case was set down for hearing on the so that of March 1919, and, on the 7th of March the plaintiffs applied for summonses to issue against the four creditors whom they had already named to the Court. Summonses were duly served, but the witnesses in question did not present themselves before the Court at tie hearing of tie 20th of March 1919. The plaintiffs applied for an

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