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Kishun Pershad Chowdhry Vs. Tipan Pershad Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1907)ILR34Cal735
AppellantKishun Pershad Chowdhry
RespondentTipan Pershad Singh
Cases Referred and Maheswar Dutt Tewari v. Kishun
Excerpt:
hindu law - mitakshra family--alienation of family properly by father--liability of son for father's debt--sale or mortgage--suit by mortgagee against father and son for sale of mortgaged property--decree, form of. - .....upon which the judgment of the subordinate judge is founded, the plaintiffs are entitled to a mortgage-decree against the share of the mortgagor in the ancestral properties covered by the mortgage securities. after a careful examination of the judgments of the full bench and of later cases, in which that decision has been explained' we are of opinion that this contention is well founded. the first question, which was referred to the full bench for decision, was as follows:in the case of a mitakshara family consisting of a father and one minor son where the father being the manager raises money by hypothecating certain ancestral family property by bonds, and it is not proved on the one hand that there was any legal necessity for his raising the money, nor on the other, that the money.....
Judgment:

Mookerjee and Holmwood, JJ.

1. On the 10th March 1897, the first defendant, respondent, executed in favour of the plaintiffs, appellants, a mortgage bond for Rs. 5,000. On the 13th October 1897, he executed two other mortgage bonds in favour of the plaintiffs for Rs. 2,500 and Rs. 3,000 respectively. On the 3rd August 1903, the plaintiffs commenced the action out of which this appeal arises, to enforce these three securities. They joined as parties defendants not only their mortgagor but also his infant son, the second defendant, as the property in question belonged to a joint Hindu family governed by the Mitakshara law, of which the first defendant and his son were members. The claim was resisted by both the defendants. The Subordinate Judge found upon the evidence, first that the mortgage bonds propounded by the plaintiffs were genuine and for consideration, secondly, that the plaintiffs had failed to prove that there was any legal necessity for the loans or to show that they made any enquiry as to the purpose for which the loans were contracted and thirdly, that the son had failed to establish that the debts were, as alleged by him, contracted by his father for illegal and immoral purposes. On these findings, the Court below held that the case was covered completely by the decision of a Full Bench of this Court in the case of Luchmun Dass v. Giridhur Chowdhry (1880) I.L.R. 5 Calc. 855 and made a decree which entitled the plaintiffs, to raise out of the family properties of the defendants including the mortgaged properties, the amount decreed in their favour. The Subordinate Judge, however, refused to make a decree on the footing of the mortgage.

2. The plaintiffs have appealed to this Court, and on their behalf the decision of the Subordinate Judge has been challenged substantially on two grounds; namely, first, that the effect of the decision of the Full Bench in the case of Luchmun Dass v. Giridhur Chowdhry (1880) I.L.R. 5 Calc. 855 has not been rightly appreciated by the Court below, and, secondly, that the decision of the Full Bench is no longer binding upon this Court in the view of later decisions of their Lordships of the Judicial Committee. No attempt has been made to assail the, findings of fact at which the Court below arrived, and, upon an examination of the evidence) we are satisfied that, even if such an endeavour had been made, it could, not possibly succeed.

3. In support of the first branch of his contention, it has been argued by the learned vakil for the appellants that, upon a true construction of the decision of the Full Bench upon which the judgment of the Subordinate Judge is founded, the plaintiffs are entitled to a mortgage-decree against the share of the mortgagor in the ancestral properties covered by the mortgage securities. After a careful examination of the judgments of the Full Bench and of later cases, in which that decision has been explained' we are of opinion that this contention is well founded. The first question, which was referred to the Full Bench for decision, was as follows:

In the case of a Mitakshara family consisting of a father and one minor son where the father being the manager raises money by hypothecating certain ancestral family property by bonds, and it is not proved on the one hand that there was any legal necessity for his raising the money, nor on the other, that the money was raised or expended for immoral or illegal purposes, or that the lender made any inquiry as to the purpose for which it was required, can the lender, the mortgagee enforce by suit against the father and the son the payment of his money by sale of the property during the father's lifetime.

4. The answer, which was returned by the Full Bench, was in these terms:

The mortgage itself upon which the money was raised, could not be enforced, but the debt contracted by the father, being itself an ante dent debt, within the meaning of the rulings of the Privy Council, and the son being a party to the suit, the mortgagee, notwithstanding the form of the proceedings, would be entitled to a decree directing the debt to be raised out of the whole ancestral estate inclusive of the mortgaged property.

5. It may be conceded that the language of the question as also of the answer, is, at first sight, wide enough to justify the inference that, even as against the interest of the father in the ancestral properties, the mortgagee is not entitled to a mortgage decree. It was shown, however, by Mr. Justice Pigot in the case of Khalilul Rahman v. Gobind Pershad (1892) I.L.R. 20 Calc. 328 that this interpretation is erroneous. The question which was referred for decision to the Full Bench was, not whether the mortgage was enforceable, against the interest of the father, but whether it was enforceable as against the interest of the son. This is manifest from an examination of the records of the cases in which the Full Bench reference was made, and which were carefully scrutinised by Mr. Justice Pigot in the case to which we have just referred. One of the cases, in which the Full Bench reference was made, was an appeal from original decree No. 279 of 1878,. which arose out of a suit brought against a father and a son on three bonds executed by the father mortgaging the joint-family property. The son defended the suit on the ground that his father had no power to charge the joint-family properties with the debt, but the father let judgment go by default. The Court of first instance held that legal necessity was not proved,' and dismissed the suit as against the share of the son, because there was nothing to indicate that the debts, though not for immoral or illegal purposes, were for family necessities. The High Court, after the Full Bench had returned the answers to the questions submitted to them, observed as follows:

The plaintiff is entitled not only to the decree, which be has obtained, but to this further relief, namely that if the sale of the share and interest of the father should not be sufficient to satisfy the debt, interest and costs, the minor's share and interest in the ancestral property must also be sold, so far as may be necessary to satisfy the amount due.

6. It is manifest, therefore, that the decree as ultimately made by the High Court was a mortgage decree against the share of the father and also a decree, which entitled the mortgagee to have his claim satisfied by sale of the minor's share and interest in the ancestral property. We agree entirely in the following observation of Mr. Justice Pigot:--'In this case the mortgagee creditor sues, first, a mortgagor and his sons, and, second, the son of a deceased mortgagor; and seeks bis remedy against the ancestral property of all the members of a joint family. It is certain that he is entitled to a decree against the mortgagor in respect of his own share.' (1892) I.L.R. 20 Calc. at p. 387 It follows consequently that the view taken by the Subordinate Judge as to the true scope and effect of the decision of the Full Bench is erroneous. The plaintiffs are entitled, in the first place, to have their security on forced as against the share of their mortgagor; they are also entitled to a decree, which would enable them to realise their dues by sale of the share of the sons in the ancestral property. The first branch of the contention of the appellants must; consequently prevail.

7. The second branch of the contention of the appellant raise the question, whether the decision of the Full Bench in Luchmuib Dass v. Giridhur Chowdhry (1880) I.L.R. 5 Calc. 855 is still binding upon this Court. Under the Rules of the Court, Chap. V, Section 6, every decision of a Full Bench shall be treated as binding on all Division Courts and Judges sitting singly upon any point of law, or usage, having the force of law, determined by the Full Bench, unless it is subsequently reversed by a Bench specially constituted, consisting of such number of Judges as in each case shall have been fixed by the High Court, or unless a contrary rule be laid down by the Judicial Committee of the Privy Council. It is not suggested that the decision of the Full Bench has been subsequently reversed by a special Bench. The only question, therefore, which arises is whether a contrary rule has been laid down by the Judicial Committee of the Privy Council.

8. The learned vakil for the appellants has contended upon the authority of some observations in a recent case in this Court, Mahesuar Dutt Tewari v. Kishun Singh (1907) I.L.R. 34 Calc. 184, that a contrary rule has been laid down by the Judicial Committee in the oases of Nanomi Babuasin v. Modhun Mohun (1885) I.L.R. 13 Calc. 21 ; L.R. 131. A. 1 and Bhagbut Pershad Singh v. Girja Koer (1888) I.L.R. 15 Calc.717 ; L.R. 161. A. 99, and he has laid considerable stress upon the passage in the judgment in which the learned Judges expressed their opinion that the law as laid down by the Full Bench of this Court in the case of Luchmun Dass v. Giridhur Chowdhry (1880) I.L.R. 5 Calc. 855 cannot be held to be any longer binding in view of the later decisions of the Privy Council just mentioned.

9. It may be conceded that the case, upon which reliance is placed, supports the view urged on behalf of the appellants; but with all respect for the learned Judges, who decided that case, we are entirely unable to agree in their conclusions or to hold that there is anything in the decision of their Lordships of the Judicial Committee in Nanomi Babuasin v. Modhun Mohun (1885) I.L.R. 13 Calc. 21 L.R. 131. A. 1 and Bhagbut Pershad Singh v. Girja Koer (1888) I.L.R. 15 Calc.717 L.R. 161. A. 99, which by any stretch of language can be construed as embodying a rule contrary to that laid down by the Full Bench. In the case of Nanomi Babuasin v. Modhun Mohun (1885) I.L.R. 13 Calc. 21 ; L.R. 13 I.A. 1, a dispute arose as 4o the precise effect of an execution sale on the basis of a debt, which was a joint family debt incurred by the father of a Mithila family. The property sold was the share of the whole family in a certain mauzah, and the. question to be decided was, whether the Court was bound, upon, the authority of Deendyal Lal v. Jugdeep Narain Singh (1877) I.L.R. 3 Calc. 198 ; L.R. 4 I.A. 247, to hold that nothing but the coparcenary interest of the father had passed to the purchasers. Their Lordships of the Judicial Committee pointed out that what passed by such a sale depended upon the nature of the debt, (for example, whether or not it was tainted with immorality) and upon the intention of the parties. The other coparceners, who were not parties to the sale or the execution proceedings, were entitled to try the fact of the nature of the debt in a suit of their own, and the purchaser, if he had bought the entirety, might defend his title on any ground which would justify the sale. It may be observed that the decree, in execution of which the property was sold, was a money decree against the father, and no question arose as to whether a mortgage executed by a father could be enforced in his lifetime against his sons and their interest in the property brought to sale on the basis of a mortgage decree in a suit so framed. In the case of Bhagbut Pershad Singh v. Girja Koer (1838) I.L.R, 15 Calc. 717 ; L.R. 15, I.A. 99, which is the other decision of the Judicial Committee upon which reliance is placed, the question arose as to the effect of an execution sale, namely, whether the sale was merely of the right, title and interest of the debtors or whether it was a sale of the entire property including the interest of the sons, who were not parties to the suit or execution proceedings. Their Lordships quoted with approval the following passage from the judgment in Girdhari Lal v. Kantoo Lal (1874) 14 B.L.R. ; L.R. 1 I.A. 321: 'where joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt, or under a sale in execution of a decree for the father's debt, his sons, by reason of their duty to pay their father's debt, cannot recover that property, unless they show that the debts were Contracted for immoral purposes and that the purchasers had notice that they were so contracted.' Their Lordships added in a subsequent passage that, where sons claim against a purchaser of an ancestral estate under an execution against their father upon' a debt contracted by him, it is necessary for the sons to prove that the debt was contracted for an immoral purpose, and it is not necessary for the creditors to show that there was a proper inquiry or to prove that the money was borrowed in a case of necessity. It is manifest that the rule laid down in these two passages deals With a case in which joint ancestral property has passed out of a joint family, either under a conveyance executed by a father in consideration of an antecedent debt, or under a sale in execution of a decree for the father's debt, and defines the conditions, under which the pons can recover property, which has so passed out of the joint family. These passages do not lay down any rule upon the first question, which was referred for decision by the Full Bench in Luchmun Dass v. Giridhur Chowdhry (1880) I.L.R. 5 Calc. 855, We are wholly unable to appreciate upon what ostensible ground it is now seriously suggested that the decision of the Full Bench should be treated as overruled by implication by the two decisions of the Judicial Committee, which were pronounced so far back as 1885 and 1888, respectively. It may be pointed out that these two decisions do not lay down any rule inconsistent with, or materially different in principle from, that is embodied in the decisions of the Judicial Committee in the oases of Girdharee Lall v. Kantoo Lall (1874) 14 B.L.R. 187 ; L.R. 1 I.A. 321, Deendyal Lal v. Jugdeep Narain Singh (1877) I.L.R. 3 Calc. 198 L.R. 4 I.A. 247 and Suraj Bunsi Koer v. Sheo Persad Singh (1879) I.L.R. 5 Calc. 148, all of which had been cited before the Full Bench in the course of argument in support of precisely the same contention as is now advanced before us, and must have been considered by the learned Judges before they returned their answers to the questions submitted to them. These cases lay down the principle that, although no member of an undivided family can, by any process, appropriate to his own benefit a larger portion of the family property than the share he would obtain on partition, where the father has incurred a debt of a character, which would bind his sons, the creditor can obtain satisfaction of the debt either by conveyance from the father on by a decree of Court to the extent of even the whole family property, subject to this qualification, however, that a creditor, who wishes to enforce his claim against the interests of the sons, must show that he intended to do so by his proceedings in execution, or that he believed he was doing so by the form of the conveyance which he receievd. The decisions of their Lordships of the Judicial Committee, however, do not directly lay down any rule upon the first question which was referred for decision to the Full Bench, which is precisely the question raised before us in this appeal. It may further be observed that the decision of the Full Bench has been uniformly treated as binding upon, this Court, in spite of the cases before the Judicial Committee upon which reliance is now placed to show that that decision has been overruled by implication. Reference may be made to the oases of Gunga Prosad v. Ajudhia Pershad (1881) I.L.R. 8 Calc. 131, Khalilul Rahman v. Gobind Pershad (1892) I.L.R. 20 Calc. 328 and Surja Prasad v. Golab Chand (1900) I.L.R. 27 Calc. 762. The second of these cases contains a careful and exhaustive exposition of the effect of the decisions of their Lordships of the Judicial Committee upon the question, and it does not appear to have been then contended at the Bar, nor does the suggestion appear to have presented itself to the learned Judges, who may be assumed to have, been familiar with the decisions of the Judicial Committee in Nanomi Babuasin v. Modhun Mohun (1885) I.L.R. 13 Calc. 21 L.R. 13 I.A. 1 and Bhagbut Pershad Singh v. Girja Koer (1888) I.L.R. 15 Calc. 717, that the rule laid down by the Full Bench, had been overruled by these oases. On the other hand, although, Mr. Justice Pigot in more than one place in his judgment refers to the decision in Nanomi Babuasin v. Modhun Mohun (1885) I.L.R. 13 Calc. 21 L.R. 13 I.A. 1, he accepts as sound the position that the creditor is entitled, in respect of the debt of the father, to have his remedy against the whole estate inclusive of the share of the minor sons, after the father's share had been exhausted in payment of the mortgage debt, the mortgage security for which is good as against his share only. We are by no means prepared, therefore, to accept the position that the decision of the Full Bench should be summarily brushed aside on the assumption that a contrary rule has been laid down by their Lordships of the Judicial Committee.

10. It was suggested by the learned vakil for the appellants that the logical inference deducible from the decisions of the Judicial Committee is that the rule laid down by the Full Bench is erroneous. We shall deal with this contention in a moment, but before we do so, we may refer to the weighty observations of Lord Halsbury L.C. in Quinn v. Leathem [1901] A.C. 495, 506: 'Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must Acknowledge that the law is not always logical at all.'

11. It has been contended by the learned vakil for the appellants, that, if a suit had been brought against the father alone, if a mortgage decree had been given against him, which directed the sale of the entire property, including not only his share, but also the share of his sons, and if such decree had been enforced, it would not have been open to the sons to set aside the execution ale except on the ground that the debt was to the knowledge of the creditor, illegal or immoral; and that consequently, in this suit, in which the sons are parties, a mortgage decree ought to be made against them, because, if such a decree had been made and executed behind their back, they could not have challenged the validity of the sale except on the grounds specified. In our opinion this position, is for an obvious reason, the reverse of logical. If a decree for money had been obtained against the; father, and in execution of that decree, the family property had been sold, the position of the son as against the purchasers would have been precisely the same. The mere circumstance, therefore that after an execution sale, whether on the basis of a mortgage decree or a money decree against the father, the sons are not entitled to have the alienation questioned except on the ground of illegality or immorality of the debt, does not necessarily lead to the conclusion that the creditor is entitled to enforce the mortgage security as against the sons in a suit to which they are parties. This distinction appears to have been present to the mind of Sir Richard Garth, C.J., as is indicated by the questions which he put in the course of the argument before the Full Bench, in the case of Luchmun Dass v. Giridhur Chowdhry (1880) I.L.R. 5 Calc. 855. He is reported to have observed, when reliance was placed, on behalf of the creditor, upon the decision of the Judicial Committee in Suraj Bunsi Koer v. Sheo Persad Singh (1879) I.L.R. 5 Calc. 148 ; L.R. 6 I.A. 88, that 'the property here has not passed out of the family; and can the alienation, therefore, be questioned? And, further, does the rule laid down apply when a creditor is seeking to enforce his lien, that is, can he do so without; showing necessity?' To these observations, Mr. Justice Pontifex interposed the answer that the questions might be answered in the affirmative. The distinction between the position of the son in a suit in which the mortgage created by the father is sought to be enforced against his share in the property, and his position after the alienation has been completed by an execution sale;, was also recognized by the learned Judges of the Allahabad High Court in Jamna v. Nain Sukh (1887) I.L.R. 9 All. 493. To our mind, it is clear that this distinction, whether it is logical or not, was recognised by the Full Bench in Luchmun Dass v. Giridhur Choudhry (1880) I.L.R. 5 Calc. 855, after ample consideration of the decisions of the Judicial Committee, which: had been given up to that time, and that the later cases before the Privy Council do not in any way affect the matter or lay down a contrary rule. As the decision of the Full Bench is thus still binding upon this Court, it is unnecessary to inquire whether it is well founded on reason and principle. That the matter, if it, were res integra, might not be free from considerable doubt and difficulty, is shown by the circumstance that a contrary view has been adopted by the learned Judges of the Allahabad High Court in Badri Prasad v. Madan Lal (1893) I.L.R. 15 All. 75 and Debi Dat v. Jadu Rai (1902) I.L.R. 24 All. 459. We are bound, however, to follow the rule laid down by the Full Bench of this Court, until it has been over-ruled by their Lordships of the Judicial Committee.

12. We may further point out that the learned Judges of this Court, who decided the case of Maheswar Dutt Tewari v. Kishum Singh (1907) I.L.R. 34 Calc. 184, have not only extended the principle, laid down by their Lordships of the Judicial Committee in connection with oases where property has passed out of the family, to cases where the security given by the father is sought to be enforced against his sons, but they have also extended the rule laid down by the Judicial Committee as applicable to cases of complete alienation, to cases of partial alienations such as mortgages. This is obvious from the passage in the judgment of their Lordships in Girdharee Lull v. Kantoo Lall (1874) 14 B.L.R., 187 ; L.R. 1 I.A. 321 to which reference has already been made ; their Lordships limit their observations to oases of conveyances executed by the father in consideration of an antecedent debt and sales in execution of decrees for the father's debt. Under these circumstances, we must hold that the decision of the Full Bench in Luehmun Dass v. Giridhur Chowdhry (1880) I.L.R. 5 Calc. 855 upon the first question with which alone we are now concerned, is still binding as an authority upon this Court. The second branch of the contention of the appellants consequently fails.

13. A question was discussed at the bar as to whether the debts covered by the three mortgages now in suit, were antecedent debts. Reference was made to Venkata Ramanaya v. Venkata Ramana (1905) I.L.R. 29 Mad. 200 to show that, where the debt is incurred at the time of the sale or mortgage, it is not an antecedent debt within the meaning of those words as used in the judgment in Suraj Bunsi Koer v. Sheo Persad Singh (1879) I.L.R. 5 Calc. 148; L.R. 6 I.A. 88. It is not necessary, however, to deal with this question at length, because we see no reason, as at present advised, to dissent from the view formulated in the case of Khalilul Rahman v. Gobind Pershad (1892) I.L.R. 20 Calc. 828.

14. As the present action has been commenced within six years from the due date upon each of the mortgage securities, no question of limitation obviously arises; and we reserve our opinion upon the question of limitation applicable to a suit of this description, upon which there is a divergence of judicial opinion: see Surja Prasad v. Golab Chand (1900) I.L.R. 27 Calc. 762 and Maheswar Dutt Tewari v. Kishun singh (1907) I.L.R. 84 Calc. 184.

15. The result, therefore, in our opinion is that this appeal must be allowed and the decree of the Subordinate Judge modified. The plaintiffs will have the usual mortgage decree for the sum due upon their mortgage securities, against the share of the father; the decree will also entitle them, if the sale of the share and interest of the father be not sufficient to satisfy the debt, interest and costs, to realise the balance by sale of the minor's share and interest in the ancestral property, so far as may be necessary to satisfy the amount due. A period of six months will be fixed in the decree for redemption. The appellants are entitled to their costs of this Court as against the first defendant, but they must pay the costs of the second defendant.


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