1. I would state the facts of this case fully as I am not satisfied with the treatment of the case by the lower Courts. The 1st defendant was the stakeholder of a chit fund and for the due performance of his obligations in connection with the chit transactions, he executed a kootchit deed, dated 23rd March, 1914. mortgaging two items of his property. In item No. 2 he had had originally an ancestral property only 47 cents, but the other 47 cents which at first belonged to his brother Kuppusami Iyer were purchased in 1910 by a sale-deed, (Ex. 1-A) and the sale-deed stands in the name of the 2nd defendant son of the 1st defendant, being a minor by his mother as guardian. Thus in 1914 he was in possession of 94 cents of this item and this was mortgaged by Ex. A. The plaintiff is one of the subscribers to the chit and he bid at one of the auctions in 1918 by which he became entitled to the suit amount. He, therefore, brings the suit to recover the amount by sale of the property mortgaged under Ex. A. Defendants Nos. 3, 4 and 5 are the purchasers of item No. 2 subsequent to execution of Ex. A that is under Ex. 1, dated 20th April, 1915. The District Munsif's judgment is somewhat perfunctory because it does not state what the defences of the defendants are in this case. Asa matter of fact the 1st defendant 2nd defendant and 3rd and 4th defendants all have filed written statements and no reference is made to these written statements. However, I had them all read out before me. The 1st defendant did not appear at the time of the trial. The District Munsif framed two issues '(1) to what amount is plaintiff entitled? (2) what are the properties subject to the charge.'
2. The first issue was framed with reference to some questions raised by the 1st defendant as to the exact amount due to the plaintiff. The second issue was raised with, reference to the plea of the 3rd and 4th defendants, namely (1) that Ex. A will not be binding on the half share of Kuppusami Iyer which was purchased in the name of the 2nd defendant in 1910 and which was afterwards sold to the 4th defendant in 1915 (2) that the mortgage was also not binding upon the son's half share of the original ancestral property of 47 cents on the ground that it is not made for necessary purposes. The issue, might have been made clearer so as to state these points expressly, but, however, I find both the District Munsif and the District Judge discuss these points and these are the points that are argued by the parties throughout. I, therefore, think that nobody has been prejudiced by the frame of the issues.
3. The first issue is not now before me. As to the second issue, the District Munsif found that in 1910 the 2nd defendant had no property of his own. It is admitted he was a minor. He also observed that there was no evidence to rebut the presumption of Hindu Law that a purchase in favour of the junior members of the family was really a purchase in favour of the family. He also referred to the fact that the father joined in the further sale and he found that the purchase of 47 cents in 1910 was also a joint family property and could not be regarded as 2nd defendant's self-acquisition. Then as to the other point raised by the defendants, namely, whether the transactions were for necessity, he found that the chit was for family benefit referring to the evidence of P.W. No. 1 and, therefore, he thought that Ex. A was binding on the whole of items Nos. 1 and 2, He, therefore gave a decree to the plaintiff as prayed for. Only defendants Nos. 4 and 5 appealed 3rd defendant having died. On appeal the District Judge held that the purchase in 1910 in the name of the 2nd defendant must be regarded as a separate transaction 'he says it may be that the purchase money came from his mother.' This is merely a possibility. It is true that the purchase money may have come from the mother. But defendants Nos. 3 to 5 adduced no evidence in the case and there is no evidence to show that the mother advanced any money. In Bammu Shetti v. Dharnu Shelti 38 Ind. Cas. 292 : (1917) M.W.N. 535 : 5 L.W. 259. the case referred toby the District Munsif but not by the District Judge, it was held following Parbati Dasi v. Baikuntha Nath : (1914)16BOMLR101 that where there is property standing in the name of a junior member the presumption is that it is joint family properly. This presumption is of course liable to be rebutted. It may be a very weak presumption in some cases and it may be easily rebutted. It may be stronger in other cases in which case stronger evidence would be required to rebut it. But in the present case there is no evidence and one has to 'start with the presumption that the purchased property was joint family property seeing that the 2nd defendant was a minor at the time of the purchase and that the family had ancestral property. The District Judge makes no reference to such a presumption. He does not start the discussion of the ease with such a presumption he merely refers to the possibility of the purchase money coming from the mother and comes to the conclusion that the property must be regarded as the 2nd defendant's property. I therefore, reverse this finding of the District Judge and hold that in the absence of evidence on the side of the defendant the purchase of the 47 cents in 1910 must be regarded as ancestral property. But this does not dispose of the case. The next question still arises whether even as regards the whole of the 94 cents, the mortgage is binding upon the whole of the item or only on the father's share of item No. 2, i.e. 47 cents. This depends upon the consideration whether Ex. A falls within the power of a Hindu father seeking to mortgage his son's property. There was no antecedent debt in 1914. Because Ex. A was not executed for antecedent debt the District Judge held that it is not binding on the 2nd defendant. But I do not think that is enough to dispose of this point. The father may mortgage his son's Share for necessity or for a benefit to be conferred on the joint family. Here Ex. A was executed in connection with the chit fund transaction and the father is immediately benefited to the extent of Rs.500 when 'he incurred obligations in connection with the future performance of the chit. If he honestly performs these obligations the family need not come to any trouble; but if it is irregular in his dealings with the subscribers to the chit the family will get into trouble. In the case of prudent management, the prudent manager or father might benefit the family, but this is a case where the family might get into trouble and lose properties. After all it is a speculative transaction. A chit fund is not like the ordinary transactions of a Hindu family. It bears no resemblance to money borrowed for maintaining the family for performing the marriages or upanayanam or paying the Government revenue or educating boys in the family or paying of the antecedent debts. There is the possibility that chit fund transaction may end in profit but it is not a transaction for which the father can mortgage his son's share. I, therefore, hold that Ex. A is not binding on the son's half share of the whole of item. No. 2. The plaintiff is, therefore, entitled to a decree against the father's half share but not against the sons half share. To this exent I modify the decree of the District Judge.
4. Mr. Sivaramakrishna Iyer who appears for the respondent argued before me other points and wished to support the decree of the District Judge on such points. First he argued that Ex. A is not properly proved and secondly that Ex. A amounts to a charge only and not a mortgage, and, if it is a charge he is a bona fide purchaser without notice and that this purchase in 1915 takes priority over the plaintiff's mortgage right. The first two points were not made the subject of issues and so far as the first point is concerned, l am not going to allow it to be raised here. As to the second point, it was not even raised in the grounds of the lower Appellate Court. What was raised in the grounds is merely that Ex. A does not give any kind of charge at all. This is because the plaintiff's chit was in 1910 whereas his sale was in 1918 and the defendant's sale takes priority over the plaintiff's mortgage right. But beyond this, the question whether this would not amount to a mortgage was not raised in the grounds, nor was it argued before the District Judge. It seems to me to fall within the definition of Section 58 of the Transfer of Property Act, because it effects security of the property for the due performance of engagement which may result in a pecuniary liability like simple mortgage bonds which are usually executed in this Presidency. If it is a mortgage bond, no question of defendants Nos. 3 to 5 being bona fide purchasers without notice would arise in the case. But, if such a question arises, I do not see how these defendants Nos. 3 to 5 can be regarded as bona fide purchasers without notice. Thers is no doubt a recital in the sale-deed, Ex. 1, that there were no prior encumbrances. No purchaser is satisfied with such representations by the vendors. It is his duty to enquire. In this case there is no evidence as to what enquiry he made. The burden of proving that he was a bona fide purchaser without notice was on him and he has not gone into the box to prove that he made further enquiries and he had no notice of an earlier registered document. But as I have already said I do not think any such question arises. The result is that in modification of the decrees of the Courts below the plaintiff will have a decree for the sale of item No. 1 and the 1st defendant's half share in item No. 2, i.e. 47 cents.
5. Another point raised by Mr. Sivaramakrishna Iyer is that the other subscribers to the chit-fund ought to be made parties. This again was not the subject of issue and after all I do not see how the non joinder of the parties is fatal to the suit. The particular amount sued for belongs to the plaintiff and though Ex. A was executed for the due performances of the obligations to all the subscribers it is really for the performance of the respective obligation when the amount of each subscriber accrues. The present amount is due only to the plaintiff. I do not think there is any substance in the point but even if there is any I cannot allow it to be raised now. The plaintiff will get his costs of the first Court from defendants Nos. 1 and 2 in the lower Appellate Court and here he will bear his own costs. The respondents Nos. 3 to 5 will bear their own costs.