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Ananto Mohini Vs. Khalli Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 105 of 1950
Judge
Reported inAIR1954Ori107; 20(1954)CLT146
ActsHindu Law
AppellantAnanto Mohini
RespondentKhalli Sahu and ors.
Appellant AdvocateP. Misra and ;C.S. Misra, Advs.
Respondent AdvocateB.K. Pal, Adv.
DispositionAppeal dismissed
Cases ReferredT. S. Murugesam Pillai v. M. D. Gnana Sambandha
Excerpt:
.....of the case, and having regard to the unhelpful attitude of the appellant in not examining his mother who was in the know of everything, and having regard to the state of affairs of the family property in the year 1932-33, we feel satisfied that the loan incurred under ext......defendant is rich man, he could never have any necessity for borrowing at least rs. 50/- for the family expenses.3. on appeal by d-2 the subordinate judge has reversed the judgment of the trial court on the finding that the mortgage bond in suit is genuine and for consideration and that the debt contracted under that bond by the mother-guardian of d-2 during his minority is for such legal necessity as would bind the minor and his estate.4. there is a concurrent finding of the courts below to the effect that the bond in suit, ext. i, is genuine and for consideration. it appears from the recitals in the bond that out of rs. 500/-rs. 450/- was taken to meet the litigation expenses and rs. 50/- was for the family expenses. in the recitals the details as regards litigation have been given......
Judgment:

Mohanty, J.

1. This was a suit by the plaintiff-respondent 1 to enforce a mortgage bond executed by respondent 2 Suvarno Mohini as the mother-guardian or the appellant during his minority in favour of Ananda Mohanty, the deceased father of defendants-respondents 9 and 10 on 3-2-1933. The principal sum advanced on the mortgage-bond was Rs. 500/-. The claim was laid at for Rs. 1,000/-. In 1947, defendant-respondents 9 and 10 after the death of their father transferred that mortgage-bond to the respondent 1 for consideration. Respondent 1 as a transferee of the mortgage has brought the suit for recovery of the mortgage-amount by sale of the mortgaged property.

Defendants 3 to 8 who are respondents 3 to 8 have purchased a portion of the mortgaged property, subsequent to the mortgage in question. Defendants 3, 4, and 6 have filed a written statement claiming that their purchased property should be sold last of all, if the mortgage amount cannot be entirely recovered by the sale of the remaining mortgaged property. But at the time of trial they did not appear. The suit was contested by D-2 only on the ground that Ananda Mohanty fraudulently took a mortgage bond from his mother without any consideration, and that there was no legal necessity justifying the loan avdanced under the mortgage bond.

2. The trial Court has held that the mortgage-bond in suit is genuine and for consideration; out has dismissed the plaintiff's suit on the ground that though there was a necessity for the loan, such a loan is entirely personal to D-1 and cannot be said to have been incurred to avert any danger to the estate of D-2, the appellant. He has further held that there was no pressure on the estate of D-2, nor was there any benefit conferred upon it and that as the defendant is rich man, he could never have any necessity for borrowing at least Rs. 50/- for the family expenses.

3. On appeal by D-2 the subordinate Judge has reversed the judgment of the trial Court on the finding that the mortgage bond in suit is genuine and for consideration and that the debt contracted under that bond by the mother-guardian of D-2 during his minority is for such legal necessity as would bind the minor and his estate.

4. There is a concurrent finding of the Courts below to the effect that the bond in suit, Ext. I, is genuine and for consideration. It appears from the recitals in the bond that out of Rs. 500/-Rs. 450/- was taken to meet the litigation expenses and Rs. 50/- was for the family expenses. In the recitals the details as regards litigation have been given. It appears that in 1922 the father of D-2 died leaving his young widow (D-1) who was then pregnant. D-2 is a posthumous child of his father. The troubles of D-l arose sometime after the death of her husband. Her relatives went against her and started scandalising her as an unchaste woman and as having caused the abortion of her illicit pregnancy. They anyhow prevailed upon the village Karji, and through him sent reports to the Tahsildar-Magistrate and the Police about her character and about her causing the miscarriage of her illicit pregnancy.

It is to vindicate her position and to remove the stigma and disgrace, that D-1 brought a criminal case against the village Karji and some of her close relations under Section 500, I. P. C. That case was a long-drawn affair. It appears from the judgment Ext. A that the case was twice tried de novo by reason of the transfer of the Magistrate. One of the accused who was a village Karji took up the position before the Magistrate that he cannot be prosecuted without the previous sanction of the Government. His plea having been negatived by the Magistrate, he went in appeal to the Sessions Judge, who also confirmed the order of the Magistrate. Then he moved the Madras High Court, but it was ultimately disallowed. The widow had to oppose all those petitions and had to meet the expenses in connection therewith.

The case was started against them on 27-4-32: but ended in conviction of all the accused on 24-10-33. During this period, the debt in question was incurred by D-1 as the guardian of D-2. The case number has also been referred to in that bond in great detail, and the reason for which that case had to be started has also been given therein. Thus two factors that emerge from the above circumstances and the facts of the present case are: (1) there was a long-drawn litigation started by D-1 against her slanderers; and (2) that much expense must have been incurred by her in connexion 'with that litigation. The widow was so much harassed in that litigation that she must have incurred expenses much more than the sum of Rs. 450/- mentioned in Ext. 1.

But these two factors are not sufficient to show that there was at that time pressure upon the estate of the minor to borrow money from others to meet those expenses. It must, therefore, be shown by the creditor that at that time, the expenses could not have been met from the income of the estate. There is no evidence as to any bona fide enquiry having been made by the creditor before advancing the loan to her. It is, therefore, contended by the learned Advocate-General on behalf of the appellant that in absence of any such bona fide inquiry by the creditor in order to satisfy himself about the existence of legal necessity alleged in the bond itself before advancing the loan to D-1, the plaintiff cannot get any decree. In support of this contention, he relies upon the decision of the Privy Council reported in -- 'Ravaneshwar Prasad Singh v. Chandi Pd. Singh', AIR 1915 PC 57 (A).

It appears from that decision that the Privy Council have accepted as a good principle of law the observations of the High Court in this connection. It was a case in which there was a vast impartible property to which one Tikaithi Durga Kumari succeeded as the mother-heir of her son in 1863. Durga Kumari borrowed between the years 1870 to 1871 a sum exceeding one lakh and sixty thousand rupees and alienated most substantial portion of the estate, the remaining property being comparatively of insignificant value. She died on 15-5-1907. In the year 1908, the person brought a suit for setting aside those alienations, on the ground that the alienations not being for legal necessity, cannot bind the reversion. It was found in that case that no doubt there was litigation and money must have been spent over it; but at the same time the annual income of the estate was of a considerable amount.

As the debt was for a considerable amount incurred in the course of one year, and as the major portion of the property yielding large income was sold away by the widow for repayment of the debt, it was, therefore, observed by their Lordships of the High Court that unless incurred for litigation purposes, it could not have been met from the income of the estate, and unless the transferee proves that he had made bona fide inquiry about it before purchasing the property, he cannot get a decree binding the reversion. As there was no evidence of bona inquiry the alienations were set aside.

5. But the present case stands on a different footing. The appellant's father died leaving only 14 or 15 acres of land. The appellant has given in the written statement how much property he was possessed of at the time of the loan and how much savings he used to make out of its usufruct annually. According to his written statement, he has got 70 Varanams of land that is, some 15 and odd acres, and saves to the extent of Rs. 500/-annually after meeting all the family expenses. He would have us believe in his evidence before the Court that he has got money-lending transaction to the extent of one lakh of rupees. A suggestion was made to P. W. 1 in cross-examination that he got Rs. 20,000/- from the Court (sic); but his reply is that he might have got it. That reply was taken advantage of by the trial Court in holding that the appellant is a very rich man getting a very substantial income from the property. P. W. 1 has admitted that sometime the appellant lends out money, but he docs not say whether in the year 1932-33, the mother-guardian used to lend out money. It being so, we do not think that in the year 1932-33, the appellant was so substantial a man as to get more than sufficient income from his property.

His mother who was then a young woman was in a very embarrassing position. Her relations had an eye over the minor's property and with that intention, slandered her in such vile terms with the help of the village Karji that her position in the village became intolerable. The family of the appellant was then practically ostracized by her people so much so that not only the widow but also the minor had practically no standing in the village, nor in their community. It is in such adverse embarrassing circumstances, that D-1 thought it fit and we think rightly, to file the criminal case against her slanderers for defamation in order to remove the disgrace and stigma that had been cast on her fair name and also on the name of the family. In our view, such a litigation constitutes a legal necessity binding the minor and his estate.

There are good many authorities for the proposition that the debt incurred by the manager of the family to defend any member of a Hindu joint family in a criminal case is a legal necessity of the family binding all the members. When the family is threatened with disgrace and the intention is to ward it off, any debts incurred be the head of the family or the Karta of the minor in connection therewith should be taken as for legal necessity of the family. As has been rightly observed by the learned Subordinate Judge, it is the bounden duty of the son to remove the disgrace and stigma from his mother cast on her falsely and maliciously by some of the villagers and his relations.

We are, therefore, of the opinion that there cannot be any more pressing necessity from the point of view of a member of a joint Hindu family, than raising money for removing such disgrace. Learned Advocate-General appearing for the appellant does not contest this position. He has practically admitted that if it is proved that there was any bona fide inquiry to the effect that the money could not be met at that time out of the income of the family, certainly the debt now in question should be taken as such a legal necessity as binding the minor and his estate.

6. The only question is whether at that time the minor had any such fund as to meet such expenses. Undoubtedly, the death of the original creditor has put the plaintiff under serious disadvantage. Nevertheless, D-2 appears to have remained satisfied by merely relying upon the abstract principle that the onus is on the creditor. He has made no attempt to give any assistance to the Court for arriving at the truth in this case. In evidence, as we have stated above, he has made strenuous attempts to show himself to be a very rich man having a considerable money lending transaction. If it is so, he must have accounts; but he has withheld them for the year 1932-33. Had those accounts been filed, they would have afforded sufficient opportunity to the Courts for being satisfied as to whether the family had sufficient funds in those years to meet all those unexpected expenses. Nor has he examined his mother.

She was a party to the transaction and was managing the minor's property in 1932-33. She is in a better position to speak to the fact what was the condition of the family. The principle on which we rely for taking this view of the case has been well enunciated by their Lordships of the Privy Council in the case reported in -- 'T. S. Murugesam Pillai v. M. D. Gnana Sambandha', AIR, 1917 PC 6 at p. 7 (B). In our view the circumstances of the case are such and the position of the family at that time was such an embarrassing one, that it can easily be inferable that the family had no sufficient fund at that time to meet the litigation expenses.

Moreover there is no evidence to show that D-1 was such an imprudent woman as to borrow money recklessly even though the minor had enough cash with him. But on the other hand, it appears to us that faced with such adverse and embarrassing circumstances, she could not have managed the property of the minor efficiently so as to get any surplus after meeting all the expenses of the family. She instead of selling the property of the minor, appears to have done well, as an act of prudent woman, to borrow money for meeting unexpected expenses. Moreover, the original creditor was a neighbour of defendants 1 and 2. He must have known, as a neighbour, the financial condition of the appellant's family at that time.

When a creditor had personal knowledge of the condition of the family and also all about the unexpected expenses of the family, he is not ordinarily required to make any inquiry as to them. His personal knowledge itself is sufficient to justify the loan advanced by him. Apart from this, Ext. 1 at best shows that, though the recital in it cannot be taken to be an evidence as to the existence of any legal necessity, she made a representation to the original creditor as to the existence of necessity for borrowing the money, and that, believing that representation to be true supplemented by his personal knowledge of the family, the creditor advanced money to her. Such a belief, we think, is a bona fide one. The creditor appears to have acted bona fide and in good faith in this matter, especially in view of the existence of the pending litigation in Court requiring large amounts of money to be spent over it. In this view of the case, we hold, in agreement with the learned Additional Sub-Judge that there was such Justifying legal necessity for the loan under the bond in suit.

7. Having regard to all the circumstances of the case, and having regard to the unhelpful attitude of the appellant in not examining his mother who was in the know of everything, and having regard to the state of affairs of the family property in the year 1932-33, we feel satisfied that the loan incurred under Ext. 1 is for such legal necessity as binding the minor. The contentions advanced by the learned Advocate-General for the appellant cannot therefore be accepted.

8. In the result, we would confirm the judgment and decree of the lower appellate Court and dismiss this appeal with costs.

Mohapatra, J.

9. I agree.


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