KHUSHI RAM AND OTHERS Vs. MEHR CHAND AND OTHERS
HIGH COURT OF PUNJAB AND HARYANA
Khushi Ram And Others
Mehr Chand And Others
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Kapur, J. -
(1.) THIS is a defendants appeal against the judgment and decree of the learned Senior Subordinate Judge of Ambala decreeing the suit of minor members of a joint Hindu family who attacked an alienation made by the karta of the family. In order to understand the facts of this family, it may perhaps be necessary to give the pedigree table of the plaintiffs' joint Hindu family.
(2.) ON 26th August 1931, Ram Sarup who is the grand -father of the present plaintiffs mortgaged with possession the suit land for Rs. 10,500 to defendants 1 to 3. The consideration was as follows:
The interest on Rs. 5500 was to counter -balance the produce of the land and on Rs. 5000 interest at the rate of 8 per cent, per mensem was payable and in default of payment of interest, compound interest was payable. The period of the mortgage was five years and the person and other property of the mortgagor was liable for any unpaid mortgage amount. In other words, it was an anomalous mortgage. This mortgage deed was attested by the two major sons of Ram Sarup, that is to say, Benarsi Dass and Sukhdev Dass and also by Ram Saran Dass who is a maternal uncle's son of Benarsi Dass and Sukhdev Dass. In 1933 Ram Sarup died and on 2nd September 1935, Benarai Dass and Sukhdev Dass sold the mortgaged property, defendants 1 to 3 for Rs. 12,800. The consideration of this sale -deed was as under:
This sale -deed is witnessed by Dit Ram Lambardar, Mangal Sain a cousin of the vendors and Ram Saran Dass. On the same day the vendors executed another sale -deed Ex. D -16 by which they transferred their mortgagee rights in another piece of land in favour of the vendees, defendants 1 to 3, for Rs. 200. In this it was mentioned:
The entire sale money shall be utilised for payment of debt, due under pronotes from us to Ram Saran Dass, Caste Mahajan, resident of Zaffarpur, Ilaqa Kalsia State, our creditor and got paid to him before the registering officer towards Rs. 1,100 under a receipt.
Ram Saran Dass on the same day executed a receipt evidencing the receiving of Rs. 1,100 from the vendees defendants l to 3. This is a registered receipt which is witnessed by Mansa Ram Lambardar and Mangal Sain a cousin of the vendors and the money was paid before the Registrar.
(3.) ON 11th June 1944, plaintiffs 1 to 5 who are the minor grandsons of Ram Sarup the original mortgagor brought a suit against the vendees defendants 1 to 3 and against their fathers defendants 4 and 5 alleging that the property in dispute which was mortgaged and sold was joint family property and that the alienations -mortgage and sale -were without consideration and necessity and were not for the benefit of the family, and they prayed for possession of the land. The vendees, defendants 1 to 3 (hereinafter called the vendees), in reply pleaded that the alienation was for consideration and necessity and for the benefit of the family, that they made bona fide enquiries from the sons and creditors of Ram Sarup and learnt that Ram Sarup mortgagor was indebted to several other persons, namely, Lakshmi Chand, Kashmiri Lal, Shib Ram, Radha Kishen, Ram Partap, Madan Lal etc., and that they also made enquiries from the sons of Ram Sarup who were majors in the family and when both the sons supported the representation made by Ram Sarup it was only then that they advanced the money on the mortgage. With regard to the sale, they pleaded that Rs. 900 out of the sale price were paid to Ram Saran Dass a cousin of the vendors and Rs. 100 was earnest money. They also pleaded that the mortgage was executed with the consent of all the adult members of the family and as they were the fathers of the plaintiffs, the latter have no right to challenge the mortgage -deed. On this, several issues were raised of which only three are relevant to the appeal:
(2) Whether the mortgage and sale dated 26th August 1931, and 2nd September 1935, respectively were effected for consideration and legal necessity and for the purposes of the joint Hindu family ?
(3) Whether the mortgage dated 26th August 1931 was effected with the consent of defendants 4 and 5 ? If so what is its effect.
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