BALGOBIND DAS Vs. NARAIN LAL

JUDGEMENT

(1.) THE Respondent Narain Lal is the son of the Respondent Naunidh Lal, and they are governed by the law of the Mitakshara as administered in the North-Western Provinces. On the 27th of November, 1879, Narain Lal executed what is known in India as a simple mortgage, whereby, in consideration of a debt of Rs. 86,834 12a. 3p. then due to Balgobind Das, the Appellant, and a further advance of Rs. 6165 3a. 9p., making together Rs. 93,000, Narain Lal pledged a 4-anna share owned by him under the Hindu law out of the 8'anna share of his father Naunidh Lal in the ancestral property situate in the districts of Benares, &c., of which a detail was given at the end of the deed. And he bound himself to pay the principal sum and interest at Rs. l8a. per cent, per mensem within two years from the date of the bond. Neither the principal sum nor any part of the interest was paid within the two years nor subsequently; but the Appellant did not take any steps to enforce the bond until the 12th of February, 1886, when he brought a suit in the Court of the Subordinate Judge of Benares to recover the principal money and interest by enforcement of the hypothecation lien and sale of the mortgaged property. The Defendants in the suit were Narain Lal and two others, Balkishen Lal and Gopal Das, who were joined as being in possession of portions of the mortgaged property. By an order dated the 22nd of June, 1886, Bhola Singh was made a defendant instead of Gopal Das, and by another order dated the 22nd of September, 1886, Naunidh Lal was made a defendant. The real contest in the suit was between him and the Appellant. The defence set up in his written statement is that he and his son were under the law of the Mitakshara, and that the mortgage deed was invalid; that out of the properties mentioned in the plaint the properties in the first schedule to the written statement were sold to the extent of the rights and interests of Narain Lal in execution of decrees held by third parties before the date of the Plaintiff's mortgage bond sued on and were purchased by him with his own money in the name of his wife; that the rights of Narain Lal in the properties mentioned in the second schedule were purchased in good faith by, him with his own money, some in his own name, some in the name of his wife, and some through his mokhtar. The whole of the purchases were made at sales by auction in execution of decrees, and it was found by the first Court that the Defendants were bond fide purchasers who had no notice or knowledge of the mortgage to the Plaintiff. It was admitted by the learned Counsel for the Appellant that there was no fact in dispute in this appeal. There is no question as to the properties in the first schedule. They are clearly not affected by the mortgage deed. As to the properties in the second schedule, the purchasers, according to the judgment of this Board in Deendyal Lal v. Jugdeep Narain Singh Law Rep. 4 Ind. Ap. 247, acquired the right of compelling the partition which the debtor might have compelled had he been so minded before the alienation by the sale of his share took place. The main question in the case is whether the mortgage is valid, and creates a charge which is to have priority over purchases at execution sales made bond fide and without notice of it.

(2.) THE Subordinate Judge held that Narain Lal was not competent to mortgage his undivided share in the joint estate without the consent of his father for a debt incurred for his own individual benefit, and made a decree that the Plaintiff should recover Rs. 1,26,480 out of the amount claimed from Narain Lal personally, dismissing the rest of the suit. The High Court, on appeal, affirmed this decree with a variation of the interest.

(3.) IN the judgment in Deendyal's case the distinction between a voluntary alienation and a sale in execution is referred to thus: "Their Lordships finding that the question of the rights of an execution creditor, and of a purchaser at an execution sale, was expressly left open by the decision in Sadabart's case, and has not since been concluded by any subsequent decision which is satisfactory to their minds, have come to the conclusion that the law, in respect at least of those rights, should be declared to be the same in Bengal as that which exists in Madras. They do not think it necessary or right in this case to express any dissent from the ruling of the High Court in Sadabart's case as to voluntarily alienations. But however nice the distinction between the rights of a purchaser under a voluntary conveyance and those of a purchaser under an execution sale may be, it is clear that a distinction may, and in some cases does, exist between them." It appears to have been sometimes suggested that the law in Madras and Bombay is a logical consequence of the decision in Deendyal's case, and some argument of this kind seems to have been urged in the present case before the Subordinate Judge. Upon this there is an important passage in the judgment of this Committee in Lakshman Dada Naik v. Ramchandra Dada Naik Law Rep. 7 Ind. Ap. 181, where the question related to an alienation by will upon which the authorities in Bombay and Madras were then in conflict. At page 193 their Lordships say: "The argument (that the will should be treated as a disposition by the co-sharer in his lifetime of the undivided share) is founded upon the comparatively modern decisions of the Courts of Madras and Bombay which have been recognised by this Committee as establishing that one of several coparceners has, to some extent, a power of disposing of his undivided share without the consent of his co-sharers"; and at p. 195: "Their Lordships are not disposed to extend the doctrine of the alienability by a co-parcener of his undivided share without the consent of his co-sharers beyond the decided cases. In the case of Suraj Bunsi Koer above referred to they observed: There can be little doubt that all such alienations, whether voluntary or compulsory, are inconsistent with the strict theory of a joint and undivided family (governed by the Mitakshara law); and the law as established in Madras and Bombay has been one of gradual growth founded upon the equity which a purchaser for value has to be allowed to stand in his vendor's shoes, and to work out his rights by means of a partition.' The question, therefore, is not so much whether an admitted principle of Hindu law shall be carried out to its apparently logical consequences, as what are limits of an exceptional doctrine established by modern jurisprudence."