- (1.) THIS is a defendant's second appeal and arises a question about the validity of a mortgage of undivided share in a joint Hindu family property situated at Abu Road which had at one time formed part of the former State of Sirohi.
(2.) ON 5. 5. 1948, Ghisalal and Rameshwarlal who were brothers, mortgaged their joint family house in favour of one Nathulal for an amount of Rs. 4000/- undertaking to pay interest at 9% per annum, Nanakram, defendant-appellant was the son of Matadin, a brother of Ghisalal and Rameshwarlal. He was minor at the time the house in question was mortgaged. His name did not appear in the mortgage and his son Lalit Kumar filed a suit for realisation of Rs. 4000/- principal and Rs 604/- interest plus some notice expenditure, total Rs. 4604/14/-by sale of the mortgaged house. The suit was filed against Ghisalal, Rameshwarlal died during the pendency of the suit and was subsequently represented by his widow and daughter as his legal representatives. Plaintiff Nathulal also died during the pendency of the suit and was thereafter represented by Lalit Kumar. The proceedings remained ex parte against Nanakram as he remained absent inspite of service of summons. The suit was resisted by the defendant Ghisalal. He pleaded that as the mortgage deed provided for three months notice before a suit could be filed and no such notice had been given, the suit was not maintainable. Apart from this, a plea was raised that there was no legal necessity or purpose of the family and, therefore, the joint family property could not have been mortgaged by the defendants Ghisalal and Rameshwarlal. The trial court, however, decreed the suit against all the defendants. Ghisalal and Rameshwarlal did not file any appeal, but Nanakram went up in appeal to the court of District Judge, Pali. It was contended by Nanakram before him that there was no evidence for showing that there was any legal necessity for the mortgage of the joint family property or that there was any family purpose for the alienation or that any antecedent debt was to be paid. It was urged that as the whole house had been transferred only by two of the coparceners the alienation was void altogether. The learned District Judge came to the conclusion that the plaintiffs: bad not been able to prove any legal necessity or existence of any family purpose or any antecedent debt for that matter and consequently the position fell to be examined on the footing that it was an alienation of a joint family property by only two of the coparceners without the consent of the third coparcener. The learned District Judge in the light of the several cases placed before him realised that according to Mitaksara the alienation of the family property in such circumstances would be void. Nevertheless he held that as on the date of the mortgage, that is, on 5. 5. 1948, Abu Road where the property is situate formed part of the Bombay presidency, as it then was, the position would be governed by the Bombay School of Hindu Law and not by the Mitaksara with the result that the mortgage would be valid qua the shares of Ghisalal and Ramesh-warlal in the house. I may read at this point the relevant portions of the judgment of the learned District Judge: " The result of the above discussion is that there was joint family of Ghisalal Rameshwarlal and Nanakram on the date the deed of mortgage was written and the learned trial court was correct in coming to this conclusion. " Then further the learned District Judge observed : " The learned Munsif Magistrate also appears to have come to the conclusion in his judgment that the loan was not taken for family purposes or for any legal necessity of the family and was only obtained for personal purposes of Ghisulal and Rameshwar. Therefore, there can be no doubt in the least that the securing of loan and mortgaging of the house was not for family necessity. " The learned Judge referred to number of cases, such as, ILR (1955 5 Rajasthan 955, ILR (1957) 7 Rajasthan 455, ILR (1955) 5 Rajasthan 279, 1964 RLW 428, ILR (1951) 1 Rajasthan 417, AIR 1960 Rajasthan 310 and a few of other cases and then eventually observed as follows "in view of this result and the law laid down above it has to be clearly held that Nanakram who was a minor at that time of mortgage is not bound by it nor his interest in the house mortgaged or in other family property is liable for realisation of the mortgage debt, and that it is only Ghisulal and Ramesh-war or his legal representative who are bound to pay the mortgage loan and their shares in the house are liable to be sold for their recovery as they had taken the loan. " Then, having observed thus he further proceeded to say: " It may be also mentioned here that Shri Ghisulal and Rameshwar were the residents of the Bombay State when the loan was taken and house were mortgaged and according to the Bombay School of Hindu Law it was permissible for them to alienate or mortgage the share of their coparcener Sri Nanak Ram. I am supported in this conclusion by the authority of the Mysore High Court reported in AIR !96l Mysore 191. Therefore so far as the right of Ghisulal and Rameshwar Lal to mortgage their shares in the joint family house is concerned, the same cannot be challenged and as it had been observed that Nanakram was not bound by the mortgage in question as only to the extent of their shares in the house which is as a joint family property at the time of mortgage. " Learned counsel for the appellant contends that the conclusion reached by the learned District Judge was erroneous. He maintains that according to Mitaksara which is the School of Hindu Law held to be prevalent in Rajasthan an undivided share of a coparceners cannot be alienated by the or other coparceners if there is no legal necessity or a family purpose or an antecedent debt warranting such an alienation, unless all the coparceners concerned agree to such an alienation. Learned counsel submits, that the mere fact that Abu Road at one time formed part of the erstwhile Bombay Presidency or Bombay State for a short period would not mean that the Bombay School of Hindu Law governed such an alienation regarding the undivided share of a coparcener in the Joint Hindu Family property in supersession of the prevailing School of Hindu Law, that is, Mitaksara. Learned counsel placed reliance on a recent decision of this Court reported as Nasirabad urban Cooperative Bank Ltd. vs. Gyanchand Jain & ors. (1 ). It was held in this case that a coparcenary property can be alienated: (1) by the whole body of the coparceners where they are all adults, (2) by its manager for legal necessity or for the benefit of the estate; (3) by the father for the payment of his own debt provided the debt was an antecedent debt and was not incurred for immoral or illegal purposes and, (4) by the sole surviving coparcener. It was further observed that it is settled that a mortgage of a joint family property between the coparceners without legal necessity or for the benefit of the estate was void in its entirety and could not be held valid even to the extent of the coparcener's interest who makes the alienation. The learned Judge speaking for the Court referred to a number of cases including AIR 1917 Privy Council page 41, in laying down this proposition. It is true, Abu Road at one time did form part of the Bombay Presidency or Bombay State, as it then was. Sirohi was an Indian State comprised in Raj-putana agency. When the process of integration of Indian States with the newly formed dominion of India started after the attainment of independence by India and the lapse of British paramountry, the State of Sirohi was merged with the Dominion of India and a merger agreement was executed by the Ruler of Sirohi for that purpose. The administration of the erstwhile Sirohi State was however, handed over to the provincial Government of Bombay. When the Constitution of India became operative from 26-1-1950, the territory of the Sirohi State was partitioned. Abu area including Abu Road was integrated with the State of Bombay and the remaining portion of the territory of the former State was integrated with what was then Part B State of Rajasthan Again when the States were reorganised with effect from 1-11-1956 and Rajasthan became a part A State the Abu area which had hither to formed part of the Bombay State was re-integrated with the reorganised Part A State of Rajasthan. The question is whether the Bombay School of Hindu Law applied to the parties living at Abu Road merely on account of Abu Road remaining with the Bombay State hardly for a period of 6 or 7 years. The answer is obviously 'no'. When one territory is transferred from one political unit to another, it does not follow that the personal law of the residents namely, the Hindu Law in the present case, would cease to apply to them in the manner it did. The broader question whether Bombay School even before the political and constitutional changes was applicable in the erstwhile Sirohi State or not, has not been investigated for want of there being clear assertions on either side. When the several Schools of Hindu Law had grown up in the course of centuries first by the commentaries of learned authors like the Vigyaneshwar who formulated the principles enshrined in the Mitaksara and the subsequent commentators or Nibandkars,the political divisions as they exist or existed in the 20th Century, were not there because these learned commentators or Niban-dhkars had lived centuries back. It is difficult to accept the position that the School of thought propounded by them would be strictly confined according to the boundaries of a particular unit or State for the time being. In dividing the Schools or sub-Schools of Hindu Law only broad areas of the country could have been indicated. In Mulla's Hindu Law 13th Edition at page 45, where the subdivisions of Mitaksara have been indicated regarding Maharashtra or Bombay School, it has been said that it is current in Western India. Likewise, regarding Dravida or Madras School it has been said Southern India. These could in the very nature of things be broad territorial areas and they need not go only according to the boundaries of the Bombay State or Bombay Presidency as they existed at different times. Former Sirohi State was situated on the border of Rajputana quite near the border of Gujrat, and Abu Road is situated quite near the Gujrat Rajasthan Border. In the absence of clear evidence it may be difficult to determine whether a particular party would be governed by Mitaksara as such or by the so-called Mayukha or Bombay School, but one can go by the principle that the Mitaksara is all pervasive throughout India except in the case of Bengal subject to its modifications by local Schools that had developed as a result of the subsequent commentaries or Nibandhs which established the local authority of such subsequent commentaries or Nibandhs in a particular area in preference to Mitaksara. Therefore, there will be a presumption at any rate regarding a place not obviously falling within the State of Gujarat or Maharashtra that it is governed by Mitaksara as such, unless the contrary is established. In the present case, there was no plea in the courts below that the parties were not governed by Mitaksara but by the Bombay or Mayukha School of Hindu Law which permitted alienation of even undivided shares in the coparcenary property by a coparcener. Apart from this the parties were Agarwalas. The history of the Agarwalas is that they originated from a place in Hariyana and they mostly live in South East Punjab Western U. P. and Northern Rajasthan. They had migrated to other provinces later in the course of a few centuries. This is what is said in the Hindi Vishwakosh about the Agarwals: *** Agroha was the original home of Agarwals and they mostly lived in South East Punjab, Northern Rajasthan and Western UP. For trade and commerce they, however, migrated to other parts of India. I am therefore, unable to hold on the material available on record that the parties were governed by the Bombay School of Hindu Law. As I have already observed, the mere fact that Abu Road where the parties resided had remained with the Bombay State for six or seven years would not make any difference regarding the personal law of the parties and, by and large, Rajasthan is governed by Mitaksara School of Hindu law as such. I am, therefore, unable to uphold the conclusion reached by the learned District Judge that it was open to Ghisalal and Rameshwarlal to have transferred their undivided share in the joint Hindu family property when there was no legal necessity or any purpose of the family for doing so, nor was there any antecedent debt to be paid off. In the circumstances the decree that has been obtained by the respondent Lalit Kumar regarding the sale of mortgaged property cannot be sustained. The decree would, however, remain effective as a simple money decree against Ghisalal and the legal representatives of Rameshwarlal. The result is that I allow this appeal and modify the judgment and decree of the court below in the above terms with the further addition that the appellant Nanakram shall in no manner be liable for the payment of the amount of the decree. The parties are left to bear their own costs of this appeal. . ;