LACHHMI PRASAD Vs. BAHRAICH RAM

JUDGEMENT

(1.) This suit is a mortgage suit brought upon a mortgage dated 11 January 1930. The mortgage was made by one Bechu Ram, in favour of the plaintiff- respondent, who is the mortgagee. Bechu Ram was himself the first defendant to this suit, but he at no point defended it and suffered a mortgage decree to be passed against him by default. Ha died during the pendency of this appeal to which he was not a party but the defendant-respondent, Hari Kishan, is in fact his heir.

(2.) The question involved in this appeal is, subject to a preliminary point, the old, but troublesome one relating to the power of the manager of a joint Hindu family to dispose of the assets, so as to bind the interests of the members of the family. It is sufficient for the purposes of this appeal for me to say that the remaining defendant-respondents are all members of the family, who dispute their liability, or rather the liability of their shares in the mortgaged property, upon the mortgage. They put forward a two-fold defence, the first disputing that, at the date of the mortgage, the family was a joint Hindu family at all, and the other denying that there was any consideration for the mortgage and, if there was consideration, that it was a transaction for legal necessity or for the benefit of the estate or family. On the face of it the mortgage of 11 January 1936 purports in the clearest possible terms to have been made by Bechu Ram as the manager of the joint Hindu family, whatever his actual position may have been. It is important, I think, to begin by examining the terms of the mortgage itself. It is a unilateral document and starts with a number of recitals. It recites that Bechu Ram was indebted to various persons upon sarkhats and promissory notes in respect of which he was being pressed and it asserts that "...the said amount was borrowed for a legal necessity--allowed under the Hindu Law..." but is silent as to what that legal necessity was. It then goes on to explain that Bechu Ram had incurred obligations in the marriage of a daughter and a niece and asserts again : ".... I am the head of the joint Hindu family governed by the Hindu Mitakshara law." Bechu Ram then proceeds to explain that he has borrowed Rs. 975 for these purposes at a rate of interest of 12 annas per cent, per mensem and again insists upon the character of the loan. He says: The above-mentioned debt has bean borrowed for a lawful necessity allowed under the Hindu law and the entire members of the family have been benefited therefrom.

(3.) I have set out sufficient of the mortgage to leave no room for doubt, I think, that, whatever the position of the family may actually have been at the date of the mortgage and whatever the character of the transaction really was, there can be no shadow of doubt that Bechu Ram purported to be exercising his power as the manager of the joint family. The matter can be somewhat shortened at this point because it is common ground between the parties and has been conceded, that, out of the aggregate principal sum secured by the mortgage Rs. 975 the sum of Rs. 746-5-0 was borrowed to pay off an outstanding sarkhat in favour of one Mangru Ram, Rs. 218 were borrowed to pay off a promissory note held by one Jagmohan which represented the expenses of the two marriages referred to in the mortgage and Us. 10-11-0 represented a fee paid to a sub-registrar in connexion with the mortgage. As to the expenses of the marriage, I understand that no resistance is now offered by the defendant-appellants and this appeal has been argued before me on the footing that the sum of Rs. 218 is to be taken to have been raised for the benefit of the family. The real bone of contention is the sum of Rs. 746-5-0 which represents the money borrowed to pay off the sarkhat held by Mangru Ram. Beyond the bare recitals in the mortgage itself that "the said amount was borrowed for a legal necessity allowed by the Hindu law," I have been able to find only one solitary piece of evidence as to the actual purpose for which it was borrowed. I have read the whole of the evidence with some care and that is all I can find. It is a passage in the evidence of Mangru Ram the holder, presumably, of the sarkhat for Rs. 746 in which he says: He (Bechu Ram) had gone out to purchase goods and had taken this loan from me for that purpose. The shop of all the brothers was joint. The shop-keeping business of the executant and his brothers had been started by the executant himself. It did not come down to him from his ancestors. My amount has been shown in the khata (accounts) of the shop of the executant and his brothers.