C.B. Bhargava, J.
1. This is an appeal by the Nasirabad Urban Co-operative Bank Ltd., Nasirabad against the judgment and decree of the Senior Civil Judge, Ajmer, dated 30th April, 1962, decreeing the plaintiff's suit for declaration that the mortgage award and decree is not binding on the plaintiff and the joint family property and restraining the appellant from getting the properties sanctioned in execution of the award as a mortgage decree.
2. One Parasdas resident of Nasirabad died in May, 1911, leaving behind his widow Smt. Magnabai and two sons Seerchahand and Gyanchand. They all constituted a joint Hindu family and belonged in Ajmer-Merwara and are subject to the Mitakshara Law. On the 9th May, 1952. Smt. Magna Bai mortgaged one bungalow and ice-factory, which was the joint family property which had come to the share of Parasdas on partition between him and his brother, with the appellant Bank as security against over-drafts on the Bank to the extent of Rs. 10,000/-. On a dispute having arisen between Magna Bai and the Bank, the matter was referred to arbitration under the provisions of the Co operative Societies Act and as award was given in execution of which the mortgaged properties were, put to sale. Beerchand son of Magns Bai was one of the sureties for for the repayment of the loan for which the properties were mortagaged. The second son of Parasads, that is, Gyachand, on attaining majority and having come to know of the mortgages instituted this suit for declaration that the said mortgage was not binding Upon the joint family properties and was void and further in the mortgage decree the joint family properties were not liable to be sold. The appellant contended the suit and pleaded that Magna Bai had taken the loan for running the joint family business and as such it was binding upon the joint family property. It was further stated that Beerchand defendant No. 2 who had stood surety was bound to repay the loan and as such no relief could be granted to the plaintiff so far as 1/3rd share of Beerchand in the joint family property was concerned. Bar of limitation was also pleaded.
3. The learned Senior Civil Judge on the above pleadings framed the following issues:
1. Did the defendant No. 1 execute the mortgage in question for the needs of the joint family business carried on in the name of 'Parasdas and sons'? If so, is the mortgage duly binding upon the plaintiff?
2. Is the suit within limitation?
3. Was the mortgage of the suit property accepted on defendant No. 2 standing surety for the account, If so, how does it affect the suit?
4. Is the suit collusive?
5. Has defendant No. 1 one-third share in the suit property and therefore the plaintiff cannot question the mortgage dead in question to that extent?
6. What relief?
4. In support of the issues Gyachand gave his own statement and examined one witness Murarilal. The Bank in rebuttal examined Keshari Mal D. W. 1, Pokarmal D. W. 2, Onkar Nath D. W. 3. Manohar Lal D. W. 4 and Jaskaran D. W. 5 to show that the loan was taken by Magnabai for running the ancestral business.
5. The learned Judge on a consideration of the evidence and the law cited before him came to the finding that there was no legal necessity for Magna Bai to take the loan in lieu of which the joint family property was mortgaged. It was surther held that the suit was within limitation, The learned Judge further held that that the mortgage was not also valid to the extent of Beerchand's one-third share. He also held that the entire transacaction of mortgage was void As a result of these findings, a decree in the terms above-mentioned was passed in favour of the plaintiff.
6. Learned counsel for the appellant has contended (1) that the mortgage effected by Magna Bai is valid and binding upon the joint family property because the loan was taken by her for legal necessity, that is, for the needs of the ancestral business and (2) that in any event the mortgage was valid to the extent of one-third share each of Magna Bai and Beerchand who had stood surety for the repayment of the loan and the decree passed in favour of the appellant could be executed against their share. In this connection learned counsel also placed reliance on the provisions of the Hindu Women's Rights to Property Act, (XVIII of 1937 amended by 11 of 1938) to show that Magna Bai on the death of her husband Parasdas got an interest in the joint family, property as her husband had.
7. The main point for determination, therefore, is whether the mortgage effected by Magna Bai is entirely void or void to the extent for her share and Beerchand's share in the joint family property.
8. Now a coparcenary property can be alienated by the whole body of coparceners where they are all adults, (2) by its manager for legal necessity or for the benefit pf the State; (3) by the father for the payment of his own debt provided the debt was an entecedent debt and was not incurred for immoral or illegal purposes and (4) by the sole surviving coparcenar. It is well settled:
Where a member of a joing family governed by the Mitakshra law as administered in Bengal, Bihar and Uttar Pradesh sells or mortgages the joint family property or any portion thereof without the consent of his coparceners, the alienation is liable to be set aside wholly unless it was for legal necessity or for payment by a father of an antecedent debt and it does not pass the share even of the allienating coparcener. The result is that if the allienation is neither legal necessity nor for the payment of an antecedent debt, the other coparenners are entitled to a declaration that the allienation is void in its entirety.
(See Mulla's Hindu Law, Thirteenth edition para 269 at page 306)
9. In Lachman Prasad v. Sargon Singh AIR 1917 PC 41 it was held:
Therefore a mortgage of a joint family property if made, neither for family necessity nor for discharging antecedent debt is void in toto and in the absence of special circumstances like an express or implied representation that the mortgagors had the right to create the encumbrance cannot bind even their charges which they may get on partition. Any one of several members of a joint family is entitled to require partition of ancestral property, and his demand to that effect, if it be not complied with, can be enforced by legal process but so long as his interest is indefinite he is not in a position to dispose of it at his own hand and for his own purposes; but as soon as partition is made, he becomes the sole owner of his share, and has the same powers of disposal as if it had been his acquired property.
Also see Kali Shanker v. Nawab Singh ILR 31 All. 507. The effect of the Act 18 of 1937 on the Hindu of a kinds widow was stated by Subba Rao J. in the Full Bench decision in Parappa v. Nagamma : AIR1954Mad576 ;
The widow has during her lifetime all the powers which her husband had save that her interest is limited to a widow's estate. She can alienate her widow's interest in her husband's shars; she can even convey her interest in the same for necessity or other binding purposes. She can ask for partition and separte possession of her husband' s share. In case she asks for partition her husband's interest would be worked but having regard to the circumstances obtaining in the family on the date of partition. If she divided herself from the other members of the family during her lifetime, on her demise the succession would be treated to her husband on the basis that the property was his separate property. If there was no severance, it would devolve by survivorship to other members of the joint Hindu family.
10. The observations were approved by their Lordships of the Supreme Court in Satrughan v. Sabujpari : 1SCR7 .
11. Therefore, Manga Bai did not possess, greater right than her husband in alienating the joint family property. In some decisions, view was expressed that the mother, though not a co-parcener in the joint family in the absence of an adult male member was competent to act as manager of the family but this view was not approved by the Supreme Court in Commissioner of I.T. v. C.S. Mills AIR 1966 SC 21 and it was held that:
Under Hindu Law co-parcenership is a necessary qualification for, the managership of a joint Hindu family. A widow is not a coparcener cannot, therefore, be a Karta of the joint Hindu family consisting of three widows and two minors.
It has, therefore, to be considered whether the mortgage in the present case was made by Manga Bai for any legal necessity, Learned counsel for the appellant contends that this plea was specifically raised by the defendant in his written statement; but the plaintiff did not choose to file any replication nor did he adduce any evidence to rebut the evidence which was produced on behalf of the defendant. He says that the evidence produced by the appellant satisfactorily establishes that there was a legal necessity for the loan, that is to say, it was taken for running the ancestral business. I would, therefore, discuss the evidence produced on behalf of the appellant.
12. But before discussing the evidence, I may point out that from the copy of the final decree which was passed in the partition suit between Parasdass and his brothers and to which the plaintiff was also made a party on the death of Parasdass, there is no mention of any joint family business in the name of Parasdass and his sons. It only mentions the joint family business carried on in the name of Deen Dayal Kishan Lal at Mhow Deen Dayal Kishan Lal at Nasirabad, which was of banking, contracting ice manufacturing etc. Bishan Lal Banker and contractor Mhow and Sikhar Chand Jain Mhow.
13. D.W. 1 Kesrimal who is an employee of the appellant stated a that Paras Das had himself stated a business of his own in the name of Paras Dass and his sons and it was not an ancestral business and that business continued for some time after the death of Paras Dass and thereafter it had stopped. Magna Bai then started that business. In cross-examination, he stated that M/s. Paras Dass and sons were doing contractor's business. What was the nature of those contracts, he did not know. Who started taking contract in the name of Parasdass and sons, he did not know. Then he stated that Parasdass had started taking contracts in the name of Parasdass and sons. Pokarmal DW 2 stated that Parasdass used to do business in name of Parasdas and Sons and on his death, that business was continued by his widow Magna Bai. He admitted in cross-examination that he was Director of the appellant Bank for 15 years. He also admitted that he did not know with whom the contract was at the time of the mortgage. Onkar Nath D. W. 3. who is one of the sureties for the loan stated that Magna Bai and her two sons Beer Chand and Gyanchand had told him that they had borrowed Rs. 10.330/- from the Bank for the purpose of taking contracts. He stated that Beer Chand was taking contracts in the name of Paras Dass and Sons. Manohar Lal D.W. 4 who was secretary of the Bank stated that a loan of Rs. 10,000/- was eiven to Magna Bai by the Bank and a Committee of the Bank of which he himself was also a member had made an inquiry about the building in which the ice-factory was located. Magna Bai had taken this loan for doing some business. She had some new business which was of taking contracts from the military. That business was in the name of Magna Bai and Paras Dass business in the name of Parasdas was continued from the time of Parasdass In cross-examination he stated that at the time of taking the loan, Magna Bai had a contract from R.A.I.C which was of supplying potatoes, onions, firewood etc. Jaskaran D.W. 5 stated that Paras Dass was doing the business of taking contracts and banking in the lifetime. The contract business was done in the name of Paras Dass, and Sons while the banking business was done in the name of Deen Dayal Kishan Lal which was a joint family business. He had started it in the name of Paras Dass and Sons in 1930-37. He separated from his brothers in 1940 and thereafter he continued doing his own business in the same name. After his death, the contract business was also stopped. In 1951 he was told by Magna Bai that she was taking a contract and because Beer Chand was a minor, so the witness should help her. It was for that contract that the Bank in 1953 advanced a loan of Rs. 10000/- to her. He admitted that he was Director of the Bank for 15 years. He also admitted that in 1952, a contract was taken in the name of Paras Dass and Sons in Nasirabad and Jasai.
14. Now on the above evidence, it cannot be held that the contract business which Paras Dass was doing in his lifetime continued after his death. Defendant's own witnesses have admitted that that business had stopped on the death of Paras Dass, The nature of the contracts taken by Paras Dass had not been stated nor has it been said that they were continued after his death by Magna Bai. It cannot be presumed that the contracts taken in the lifetime of Paras Dass remained unexecuted till the yeas 1952 when the loan was taken. It is also clear from the defendant's evidence that this loan was taken by Magna Bai for doing a new business, that is, of taking contracts from R.A.I.G. for supplying materials to it. So if the loan was taken by Magna Bai for doing a new business, as is clear from the evidence of defendant's witness Jaskaran (D.W. 5), it cannot be regarded as a legal necessity.
15. It is worthy of note that there is no recital in the mortgage deed about the purpose or which the loan was taken. Although the recitals in the deed of alienation are not evidence for the purpose of proving the legal necessity, but in some cases where the alienation is an ancient one and by lapse of time the person who could, have given evidence about the circumstances in which the loan was taken are dead, such recitals may acquire importance. But in the present case, that too is missing. Therefore, I entirely agree with the lower court that the defendant has failed to prove that Magna Bai mortgaged the properties for any legal necessity.
16. It was for the appellant to prove that the joint family properties were mortgoged for legal necessity and the Bank has failed to discharge that burden. As for taking of loan for new business, it is settled that the manager of a joint Hindu family has no authority to impose upon a minor member the risk and liability of a new business started by him and that the manager or the father of the minor makes no difference. See Sanyasi Charan Mandal v. Krishnadhan Banerji 49 I.A. 108 where it was observed that:
The Karta of a joint family cannot impose on a minor member of it the risk and liability of a new business started by himself and the other adult members.
The same view was expressed in B Shares Bank Ltd. v. Hari Narain LIX I.A. 300.
17. The mortgage of joint family properties by Magna Bai without legal necessity or for the benefit of the estate if void in its entirely and cannot be held valid even to the extent of Magna Bai or Seerchand's interests in the property.
18. It is a misconception to say that Magna Bai and Beerchand had one third share each in the joint family property. The family is still joint and there has not been any severance of status amongst its member. Each member's share in the undivided joint family property therefore cannot be predicated. It is only upon a portion that a member can claim that he has a defined share. In Shtrughan v. Sabujpari (supra) it was observed that:
A Hindu coparcenary under the Mitakshara school consists of males alone; it includes only these members who acquire by birth or adoption interest in the coparcenary property, The essence of coparcenary property is unity of ownership which is vested in the whole body of coparcaners. While it remains joint, no individual member can predicate of the undivided property that he has a definite share therein. The interest of each coparcaner is fluctuating capable of being enlarged by deaths, and liable to be diminished by the birth of sons to coparceners; it is only on partition that he has become entitled to a definite share. The two principal incidents of coparcener are: that the interest of coparcenars devolve by survivership and not by inheritance; and that the male issue acquires an interest in the coparcenary property by birth, not in his own independent right acquired by birth.
It was further observed:
Property inherited by a Hindu female who has entered the gotra of the deceased owner by marriage acquires according to all schools of Hindu law a widow's estate or a Hindu woman's estate. In that estate; her right is of an owner and not that of a tenant-for-life; the property is vested in her and she represents it completely; so long as she is alive no one has any vested interest in the property held by her. Her rights of alienation are, however, restricted; she may alienate the corpus of the property only for purposes of legal necessity or benefit of the estate. The limited estate of a Hindu female postulates ownership in the property held by her subject to restrictions on her power of alienation and devolution of that property on extincion of the estate of the female on the heirs of the last full owner.
19. Now as to the second contention, whether the bank has a right to proceed in execution of the decree against the undivided share of Magna Bai and Beerchand in the joint family property, it is true that although a coparcener cannot alienate his undivided share in the coparcenery property; his undivided share can be sold in execution of a personal decree. But in the present case, I am not called upon to express any opinion on that point because it was not subject-matter of any issue in this case nor was any such plea taken by the defendant in its written statement. I am also informed that this very question is the subject-matter of a special appeal which is pending in this Court between the same parties arising out of the execution of this decree. Here the only question is about the validity of the mortgage decree passed on the basis of a mortgage deed, which is void. The appellant has also been restrained from executing the mortgage decree as such.
20. I, therefore, find that there is no force in this appeal and it is accordingly dismissed with costs.