1. I have read the judgment prepared by my brother Walmsley and concur in it. On the question of the extents of the karta's authority which is raised, I had little doubt during the argument, that the karta of a joint Hindu family has authority to consent on behalf of the joint family to the transfer of an occupancy holding, held they the tenants under the joint family as landlords and not transferable without their consent duly given by themselves or oh their behalf.
2. This is an appeal by defendants Nos. 2 to 7 against a judgment of the learned Subordinate Judge of Fridpur, who reversed the decision of the first Court and decreed the plaintiffs' suit. The circumstances are as follows. The Dutt family, to which the plaintiffs belong, hold a certain tenure, and within that tenure the land in suit was let out to two tenants named Dinu and Menajuddin in 1878. Their interest was that of occupancy raiyats, without the right of transfer, except with the consent of their landlords. The Dutt family consisted of three brothers,---Khudiram, Mohesh and Kodai. Plaintiff No. 1, Purna, is the son of Kodai, and plaintiff No. 2, Soshti, is the son of Mohesh, Khudiram had three sons, Kali Charan, Ram Charan, and Soshi Mohan. Kali Charan is defendant No. 8 and Soshi Mohan is defendant No. 9. Kali Charan's wife is Joy Durga Sundari Dasi, defendant No. 1. Sometime before 1900 Dinu and Menajuddin borrowed money from Joy Durga and mortgaged the holding to her. She brought a suit on the mortgage, and in execution of the decree she caused the holding to be put up for sale, and then bought it herself on November 24, 1900. She was put in possession in the following year. On November 29, 1900, she let out the land lo the defendants Nos. 2 to 7, now the appellants, and they paid her a bonus of Rs. 700. On November 26, 1912, Purna instituted the present suit for recovery of khas possession to the extent of his one-third share, and his cousin Soshi subsequently joined him as plaintiff. Joy Durga filed one written statement, and defendants Nos. 2 to 7 another, but Joy Durga has not joined in the present appeal.
3. The learned Munsif found that Joy Durga had changed sides after filing her written statement, and on the merits of the case he held that the mortgage to Joy Durga was effected with the consent of the plaintiffs and their co-sharers, that Soshi Mohan Dutt was karta of the family, and that he actually conducted the mortgage suit on behalf of Joy Durga, and consented to her purchase of the holding at the auction sale, that Joy Durga was recognized by the plaintiffs and in particular by Soshi Mohan, the karta, as their tenant, and that she held possession of the land for several years through her bargaits, and latterly through the defendants Nos. 2 to 7, and that these defendants took settlement from her in good faith and paid her Rs. 700 as nazarana. He also held that apart from the landlord's recognition of Joy Durga, the defendants were entitled to retain possession on the double ground that they are settled raiyats of the village, and that they took settlement from Joy Durga in good faith, believing her to be entitled to admit them to the land.
4. On these findings the plaintiffs' suit was dismissed.
5. Before the learned Subordinate Judge on appeal it was urged that the Munsif was wrong in holding that Joy Durga's purchase had been recognized; that he had taken an erroneous view of Joy Durga's conduct in the suit; and that the circumstances did not warrant the first Court's view as to the effect of the settlement by Joy Durga. These contentions were upheld.
6. In this Court defendants Nos. 2 to 7 are the appellants. A preliminary objection is taken on behalf of the plaintiff Soshti that when the appeal was filed in November 1914 the name of the second plaintiff was given not as Soshti but as Judishtir, and that the mistake was not corrected until July 1916. It appears, however, that in the copy of the lower Appellate Court's decree, the name was written as Judishtir, and that being so the mistake was a pardonable clerical error for which the appellants should not be penalized. The main argument advanced on behalf of the appellants is that the consent given to a transfer of an occupancy holding, not transferable by custom, by the karta of a joint Hindu family is binding on other members of the family, in short that Soshi Mohan's consent to Joy Durga's purchase binds the plaintiffs.
7. There is no dispute about the fact that up to some date later than Joy Durga's purchase and the delivery of possession to her, the family was and continued to be a joint Hindu family and that Soshi Mohan was its karta.
8. The learned Subordinate Judge held that the first Court was wrong about the matter of recognition on four grounds, viz., (a) that the dakhilas, Exhibits E and F, purporting to have been granted by Purna to Joy Durga were not genuine, (b) that Purna was a mere boy during his so-called acquiescence in Joy Durga's possession; (c) that the presumption arising from the entry of Joy Durga's name in the Record of Rights had been rebutted; and (d) that the acts of a karta in relation to properties that are no joint family properties does not bind the other members of a family. It is with the last point that we are now concerned. Sir Rash Behari Ghose, on behalf of the appellants, concedes that he cannot refer us to any case in which the power of the karta to recognize a transfer: has been affirmed. On the other hand, there is no decision to the opposite effect. The powers of a karta are described in the case of Chuckun Lall Singh v. Poran Chunder Singh 9 W.R. 483 and it seems to me that they must include this power to recognize a transfer. The learned Vakil for the plaintiffs seeks to avoid this conclusion by arguing that the holding that was sold belonged to the mortgagors, and that the mortgagee who bought it was not a member of the joint family, and this, I think, must be the meaning of the Subordinate Judge's words---'acts in connection with properties which are not joint family property.' The fallacy of the argument, I think, lies in the fact that the rights of the mortgagors, and of the mortgagee, decree-holder auction-purchaser, do not exhaust the whole bundle of rights involved in the transaction. There is also the landlord's right to give or withhold his consent to the transfer; this I regard as part of the joint family property, and, as such, I think it comes within the scope of the control exercised by the karta of the joint family. If, therefore, there has been recognition of the transfer by Soshti Mohan as karta of the family, the plaintiffs are bound by that recognition. The learned Munsif found explicitly that there had been such recognition; and this finding is not displaced in the judgment of the lower Appellate Court: in fact the correctness of the finding does not seem to have been questioned, and the learned Judge accepted it without discussion.
9. I have said above that there is no dispute about the family being joint in property. I should mention, however, that in this Court we were asked on behalf of the respondents to note that the kabuliyat of 1878, was in favour of the three sons of Khudiram, and not of a karta, and that Joy Durga alone took a mortgage of the holding. These facts are not of much importance, but the question is nil one which we can enter into now, because both the lower Courts find that the family was joint in property.
10. Another argument used for respondents is that the appellants have really changed their case, and that recognition by the karta is a late development, but this argument ignores the important words of paragraph 9 of the written statement where it is said that Soshi Mohan, who was karta of the family at the time', settled the amount of nazar to be paid to Joy Durga. This is explicit enough. For the reasons given I would allow the appeal, set aside the decree of the lower Appellate Court, and restore that of the first Court, dismissing the suit with costs in all Courts