Skip to content


Miller, Official Assignee Vs. Runga Nath Moulick and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata
Decided On
Judge
Reported in(1885)ILR12Cal389
AppellantMiller, Official Assignee
RespondentRunga Nath Moulick and ors.
Cases Referred and Ram Kishore Narain Singh v. Anund Misser
Excerpt:
hindu law - joint family--manager, power of, to mortgage joint family property--limitation--personal liability of mortgagor--mortgage--limitation act, xv of 1877, schedule ii, article i32. - .....to refer first to some of the cases in which the law relating to the power of a manager of a joint hindu family to alienate in any way or to charge an ancestral property has been discussed.5. in prannath das v. calishunkur ghosal 1 sel. rep. 60 it was held that a sale by the manager of a joint hindu family, without any express authority from his adult coparceners of a joint taluk, was valid and binding upon the coparceners, the conveyance having been executed while the manager was put under confinement by the servants of the superior zamindar for a balance of revenue, there being no other available means for discharging it.6. in a note by mr. colebrook appended to the answer of the pundit reported at p. 343, strange's hindu law, vol. ii, he says: 'i take the law to be that the.....
Judgment:

Mitter, J.

1. The learned Counsel for the appellant in arguing this appeal before us has urged various objections against this decision, and all of them may be classified under the three following heads:

(1) That the decision as to the claim regarding the personal liability of the defendants being barred by limitation is erroneous.

(2) That the executants of the bond had full power to create a valid charge upon the family property, and that the appellant is entitled to enforce it against the properties mortgaged, whether the surviving executants of the bond have any right in them or not.

(3) That the, construction put upon the two wills of Gopal Lall Moulick is erroneous. That under the terms of the aforesaid wills, the surviving executants of the bond have a subsisting saleable interest in the first two mortgaged properties.

2. We are of opinion that the decision of the lower Court upon the question of limitation is correct. The contention of the learned Counsel for the appellant that Article 132 of Schedule II of the Limitation Act of 1877 refers to a claim to recover money charged upon immoveable property quite irrespective of the remedy asked for, has been set at rest by the decision of the Judicial Committee of the Privy Council in the case of Ramdin v. Kalka Pershad L.R. 12 I.A. 12 : I.L.R. 7 All. 502. That decision was passed with reference to the corresponding article of the Limitation Act of 1871. That article provides a period of twelve years for suits for money charged upon immoveable property. The Legislature in the present Limitation Act has used a different phraseology, viz., 'to enforce payment of money charged upon immoveable property.' The language of the present Act, viz., 'to enforce, etc.,' is more in favour of the contention that the article in question refers only to suits 'to enforce payment of money charged upon immoveable property' by the sale of the said property. This construction was put by the Judicial Committee of the Privy Council upon Article 132 of the Limitation Act of 1871, the language of which did not suggest it so clearly as that of the present Limitation Act. The claim to make the defendants personally liable has therefore been rightly held to be barred by limitation, the present suit having been commenced more than six years after the accrual of the cause of action.

3. But the learned Counsel further contended that, upon a true construction of the terms of the bond, the cause of action, viz., to make the defendants personally liable, has not yet accrued. We do not think that this contention is sound. The bond stipulates that 'if the executants thereof fail to pay the money, according to the terms thereof, the creditor shall immediately institute a suit and realize the debt by the sale of the mortgaged property, and that if the proceeds of the sale fall short, from the person and other properties of the mortgagors.' This stipulation, in our opinion, contemplates only one suit, and not two successive suits as contended by the learned counsel. It provides for two remedies by one suit, but the remedies are not to be simultaneously available. The remedy against the persons, and other properties of the mortgagors, is to be available only in the event of the first remedy against the mortgaged properties being found insufficient. We are, therefore, of opinion that the cause of action in respect of this part of the claim accrued to the appellant before this suit was brought, but that it is barred by limitation.

4. With reference to the second head of the objections urged against the judgment of the lower Court, it would be convenient to refer first to some of the cases in which the law relating to the power of a manager of a joint Hindu family to alienate in any way or to charge an ancestral property has been discussed.

5. In Prannath Das v. Calishunkur Ghosal 1 Sel. Rep. 60 it was held that a sale by the manager of a joint Hindu family, without any express authority from his adult coparceners of a joint taluk, was valid and binding upon the coparceners, the conveyance having been executed while the manager was put under confinement by the servants of the superior zamindar for a balance of revenue, there being no other available means for discharging it.

6. In a note by Mr. Colebrook appended to the answer of the Pundit reported at p. 343, Strange's Hindu Law, Vol. II, he says: 'I take the law to be that the consent of the sharers, express or implied, is indispensable to a valid alienation of the joint property beyond the share of the actual alienor; and that an unauthorized alienation by one of the sharers is invalid beyond the alienor's share as against the alienee. But consent is implied, and may be presumed in many cases, and under a variety of circumstances, especially where the management of the joint property, entrusted to the part owner who disposes of it, implies a power of disposal; or where he was the only ostensible or avowed owner; and, generally, when the acts, or even the silence of the other sharers, have given him a credit and the alienee had not notice.

I rather consider it to be a point of evidence, what shall suffice to raise the presumption of consent, or acquiescence, than a matter on which the Hindu law has pronounced specifically.

7. In Ashutosh Day v. Moheshchunder Dutt 1 Fulton 389 it was decided that a manager of a Hindu family has power to bind the rest by a mortgage when the money is raised for family purposes and bond fide so applied.

8. In White v. Bishto Chunder Bose 2 Hay 567 it was ruled that an alienation made by the managing member of a joint Hindu family cannot be questioned by another member, if be stands by and sees to the application of the purchase-money for the benefit of the whole family without refusing to participate in it.

9. In Peddamuthulaty v. N. Timma Reddy 2 Mad. H.C. 270 Frere and Holloway, JJ. were of opinion 'that in a case of an alienation by a manager of a joint Hindu family, mere laches or indirect acquiescence, short of the period prescribed by the statute of limitations on the part of the other members of the family is no bar to the enforcement of their right to question the alienation.'

10. In Shama Churn Chatterjee v. Tarucknath Mookerjee 5 W.R. 105 Bayley and Pundit, JJ. held that a nephew who was living with and had always acted as agent of his uncle, the manager of a joint family could not repudiate a mortgage executed by the uncle, without proof that the money so received by the uncle had not been applied by him towards the expenses of the joint family.

11. Following the ease of Ramlal Thakursidas v. Lakhimchand Muniram 1 Bom. H.C. App. 51 Mr. Justice Pontifex held in Johurra Bibee v. Sreegopal Misser I. L.R. 1 Cal. 470 'that a manager of a Hindu family, carrying on a family business, in the profits of which all the members of the family would participate, must have authority to pledge the joint family property and credit for the ordinary purposes of the business.'

12. It was held in Ram Kishore Narain Singh v. Anund Misser 21 W.R. 12 that a member of a joint Hindu family who, being aware of an alienation by the manager, allows some twelve or thirteen years to go by without making the slightest objection, must be presumed to have been a consenting party to it.

13. In Gopalnarain Mozoomdar v. Muddomutty Guptee 14 B.L.R. 21 Couch, C.J. held that the debts of a father are by the Hindu law a charge upon his estate in the hands of his sons, and if the family be in such a state that there must be a manager for the joint family, the manager, under the Hindu law, has power to sell or mortgage the ancestral property for the payment of the ancestor's debts.

14. In Juggeewun-das Keeka Shah v. Ramdas Brijbookun-das 2 Moore's I.A. 487 the Judicial Committee of the Privy Council held that a mortgage which was not executed by a member of a Hindu family of a village which was ancestral property, the mortgage being executed by the other members, under circumstances of necessity to carry oh a joint family firm, is binding upon all the members of the family including the person who has not joined in the execution of it, if it is proved that he was cognizant of it afterwards.

15. In Bemola Dossee v. Mohun Dossee I.L.R. 5 Cal. 793 cf. p. 802 Garth, C.J. and Pontifex, J. held that adult members of an undivided Hindu family governed by the law of the Dayabhaga, who have an interest in a family business carried on by the managing member of the family, and who are maintained out of the profits of such business, must, in the absence of evidence, be taken to possess the knowledge that the business might require financing and to have consented to such financing. Where, therefore, a managing member of such a family, in carrying on the family business, obtains an advance necessary for the purposes of the business, by pledging the joint family property, the mortgage is binding on all the members of the partnership.

16. The result of these cases, in our opinion, is, that an alienation made by a managing member of a joint family cannot be binding upon his adult co-sharers unless it is shown that it is made with their consent, either express or implied. In cases of implied consent it is not necessary to prove its existence with reference to a particular instance of alienation. A general consent of this nature may be deducible in cases of urgent necessity, from the very fact of the manager being entrusted with the management of the family estate by the other members of the family. The latter, in entrusting the management of the family affairs in the hands of the manager, must be presumed to have delegated to the said manager the power of pledging the family credit or estate, where it is impossible or extremely inconvenient for the purpose of an efficient management of the estate to consult them, and obtain their consent before pledging such credit or estate Prannath Das v. Calishunkur Ghosal 1 Sel. Rep. 60; Ramlal Thakursidas v. Lakhmichand Muniram 1 Bom. H.C. App. 51. Johurra Bibee v. Sreegopal Misser I.L.R. 1 Cal. 470; Gopal Narain Mozoomdar v. Muddomutty Guptee 14 B.L.R. 21; Joggeewun-das Keeka Shah v. Ramdas Brijbookun 'Das 2 Moore's I.A. 487 are instances of the application of the principle enunciated above. White v. Bishto Chunder Bose 2 Hay 567 and Ram Kishore Narain Singh v. Anund Misser 21 W.R. 12 are cases in which the consent of the subordinate members to a particular alienation was presumed from their acquiescence and other surrounding circumstances.

17. In the case before us, we are of opinion, upon the evidence adduced, that the charge upon a portion of the family property cheated by the bond of the 28th Magh 1281 is binding upon all the members of Gopal Lall Moulick's family who take under his wills.

18. The answers to the interrogatories administered to the defendants in the lower Court having not been put in as evidence, by mere oversight, and we being of opinion that in the interests of justice the appellant should be allowed to rectify this error, without putting the respondents to the inconvenience of an adjournment, allowed the answers of one of the defendants, Runga Nath Moulick, who was present in Court, to be put in, and further allowed the counsel on both sides to examine viva voce the said Runga Nath Moulick, such examination being limited to the matters covered by the interrogatories administered to him in the lower Court. In order to clear up a material point in the case with reference to which we were convinced that Runga Nath Moulick, while under examination, was dishonestly attempting to suppress certain facts, we also allowed the decree in which Indramani Chowdhrain was plaintiff and Haran Krishna Moulick was defendant, to be put in evidence.

19. From this additional evidence, coupled with that which was taken in the lower Court, it is clear to us that nearly the whole of the money, borrowed under the bond of the 28th Magh 1281, was spent to defray the expenses of a suit which was brought by Indramani to recover the property of Gokul Chunder left by his widow Brojo Sundary. It appears that on the death of Brojo Sundary, the estate of Gokul was taken possession of by Anunda Mohun Moulick, the third son of Gopal Lall, on behalf of the minor Haran Krishna, who was set up as the adopted son of Gokul and Brojo Sundary. In the second para, of Gopal Lall's second will, dated 15th Assar 1275, the testator declared that the whole of the estate of Gokul had devolved upon him as heir-at-law of Gokul. By that will he disposed of that property in a certain way, the details of which it is unnecessary to state here. It seems to us that it was undoubtedly the duty of the managers of Gopal Lall's estate appointed under his wills to recover Gokul's estate, which Gopal Lall declared in his second will to be his. The suit which was brought by Indramani, with the active co-operation and advice of her grandsons for the recovery of Gokul's estate, was, in our opinion, a necessary suit, for a due administration of the testator's estate. It is proved beyond doubt that the money covered by the bond, upon which the [401] present suit has been bought, was required for defraying the expenses of that suit. Indramani was successful in the first Court, but failed in this Court on the appeal preferred, on behalf of Haran Krishna Moulick. There were two hearings of this appeal in this Court, and ultimately there was an appeal by Indramani to the Judicial Committee of the Privy Council, which affirmed the decision of the High Court. The success of the suit depended upon a very difficult question of the Hindu law relating to adoption, and it does not appear to us that Indramani and her grandsons, in taking up this case to the highest tribunal, acted in a way in which a prudent manager would not have acted for the due preservation of the testator's estate. We are further of opinion that in conducting this litigation, and in raising money by mortgaging a portion of the family property for defraying the expenses of this litigation, they acted with the implied consent of all the members of the family, including Anangamanjari. We are, therefore, of opinion that the mortgage created by the bond of the 28th Magh 1281 is binding upon all the defendants in this case, although Anangamanjari and Doydra Nath were not parties to it.

20. In this view of the case, it is unnecessary to express any opinion upon the remaining question in the appeal, viz., as to the construction to be put upon the two wills of Gopai Lall Moulick. But as this case is appealable to a higher tribunal, we think it proper to record our decision upon that point also.

21. His Lordship then proceeded to deal with the third question raised in the appeal, referred to above, and to construe the two wills of Gopal Lall; and determine the interest of Anangamanjari in the two portions of the mortgaged property found by the lower Court to have been bequeathed absolutely to her, and then concluded as follows:

The result is that, in our opinion, the defendants who were the executants of the bond have a certain amount of saleable interest in the properties mortgaged in the bond of the 28th Magh 1281, and which interest at least is liable for the money due under it. But we have already decided, with reference to the second ground of appeal, that the whole of the mortgaged property is liable. The appellant is also we think entitled to recover the costs of this suit in both Courts.

22. The decree of the lower Court will be reversed, and in lieu thereof we direct that an account be taken of what is now due to the plaintiff, for principal and interest on the mortgage bond dated the 28th Magh 1281, and for his costs of both Courts, and that the defendants be directed to pay to the plaintiff, or into Court, the amount that may be found due on the taking of the said account, together with interest thereon, at the rate of 6 per cent, per annum from the date of the decree to the date of payment, within six months from the date of the decree. And we further direct that if defendants make default in paying the amount due within the time mentioned above, the mortgaged property be sold, and that the proceeds of the safe (after defraying there out the expenses of the sale), be paid into Court and applied in payment of what is found due to the plaintiff, and that the balance, if any, be paid to the defendants, or other persons entitled to receive the same.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //