- (1.) THIS is a 1st appeal by the defendants against the judgment and preliminary decree in a suit for the sale of mortgage property passed by the Civil Judge, Bikaner on 9th January 1953. The property of respect of which the decree has been given is a house situated in Mohalla Binaniyan in Bikaner. The parties are also the residents of Bikaner. All the four appellants are brother being sons of one Madan Gopal Maheshwari. Appellants Nos. 1 and 2 are major and the decree against them is ex-perte. Appellants Nos. 3 and 4 are minors. The suit was contested by them in the trial court through their guardianad-litem and the present appeal is also contested mainly by them.
(2.) THE case of the plaintiff-respondent in the trial court was that the property in dispute whose description is given in para one of the plaint,was first mortgaged by appellants Nos, 1 and 2 and their father Madan Gopal as manager of the joint family with one Chhagan Lal Chura for Rs. 3,000/- on 6 3-46 and the mortgage deed was registered on the next day i. e. 7. 3. 46. On the 3rd of March, 1948 Appellants Nos. 1 and 2 and Mst. Ram Pyari mother and guardian of appellants Nos 3 and 4 executed another mortgage deed for Rs. 600 /-in respect of the same property in favour of the plaintiff-respondents and it was registered on the next day i. e. 4th March, 1948. It was stated in this document that Rs 3,000/-for the principal and Rs. 150/- for interest, in all Rs. 3,150/-, were paid to the prior mortgagee, Chhaganlal Chura, to redeem that mortgage and Rs. 2,850/- were borrowed by the appellants for their joint family expenses Thus in all Rs. 6,000/- were borrowed by the appellants with interest at the rate of 9 per cent per annum. THE plaintiff calculated Rs. 2,250/- for interest till the date of the suit. It was prayed by him that a decree for the sale of mortgaged property be passed against the appellants and that if the amount is not realised from the sale of the property,a personal decree be given against the appellants. He also prayed for the interest, pendente lite and future interest, at the rate of 9 per cent per annum. Appellants Nos. 1 and 2 did not present any written statement and therefore the suit proceeded against them ex-parte as mentioned above. As regards appellants Nos. 3 and 4, it was contended on their behalf that they had no knowledge of the transactions and they were not bound by them since neither Mst. Ram Pyari nor anybody else had any authority to alienate their right and interest in the property. THE trial court therefore framed the following three issues : (1) Whether defendants Nos. 1 and 2 and Mst. Ram Pyari were authorised to mortgage to house in dispute; whether they had executed the mortgage in the plaintiff's favour and whether it was with consideration? (2) Whether the minor defendants are responsible and if so to what extent ? (3) What relief the plaintiff is entitled to ? After recording evidence of both parties the trial court came to the conclusion that the mortgage deed Ex. P. 1 was executed by appellants Nos. 1 and 2 and Mst. Ram Pyari and that the previous mortgage was also executed by appellants Nos. 1 and 2 and their father Madan Gopal. It was held that appellants Nos. 1 and 2 were liable to repay the entire debt. As regards appellants Nos. 3 and 4 it was held that they were liable to repay only the debt of 3,000/- which was incurred by their father together with interest amounting to 1,325/-, that is Rs. 4325/- in all. Their Share in the mortgage property was ordered to be sold only for this amount. The appellants' learned advocate has raised to arguments in this Court. His first argument which is on behalf of all the appellants, is that the mortgage deed Ex. P-1 should not have been used in evidence by the trial court, nor this Court should look into this document because its execution has not been proved by any attesting witness and therefore it is inadmissible under sec. 68 of the Indian Evidence Act His next contention, which is only on behalf of appellants Nos. 3 and 4, is that they are not bound by any of the two mortgage deeds produced by the respondent. As regards the first contention it would be proper to set out sec. 68 of the Indian Evidence Act on which the argument is founded. Sec. 68 - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and, subject to the process of the Court and capable of giving evidence. " It would appear from the very opening words of the section that it applies only to those documents which are required by law to be attested. Sec. 59 of the Transfer of Property Act no doubt lays down that where the principal money secured is on hundred rupees or upwards, a mortgage other than a mortgage by deposit of title-deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. In the present case the principal money secured was much more than Rs. 100/- and therefore if the Transfer of Property Act were applicable, attestation by at least two witnesses would have been absolutely necessary. But it is conceded by the appellants' learned advocate that the Transfer of Property Act was not in force in Bikaner till the 4th of March, 1948, when Ex. P-l was registered. He has tried to urge that the principles of the Transfer of property Act used to be taken into consideration by the courts in the former State of Bikaner and for that reason he wants to urge that Sec. 59 of the Transfer of Property Act should be held to be applicable. In our opinion it is one think to take into consideration the broad principles of law and it is a very different thing to apply the technical provisions of a certain Act. The provision relating to the attention of documents is certainly a technical one and so long as the Transfer of Property Act was no adapted, it cannot be said that there was any law in the former State of Bikaner where Ex. P-l was required to be attested. Under the circumstances sec. 68 of the India Evidence Act could not bar the admissibility of Ex. P-l simply because one attesting witness was not called for the purpose of proving its execution. Moreover, in the present case no only one but both the attesting witnesses viz P. W. 4 Jetha and P. W. 5 Kewalchand were produced by the respondent in the trial court and both of them had stated that Ex P-1 bore their signatures and that they had attested them at the request of appellant No. l Bithaldass and Mst. Ram Pyari on behalf of appellants Nos. 3 and 4. What happened in fact was that the learned counsel for the respondent did not take care to get the execution of the document proved by these two witnesses in the manner it should have been done. We have seen in more than one case that the procedure to prove the execution of document was perhaps not property understood by litigants on their counsel in Bikaner. It was considered enough to put a question to a witness if he had attested a particular, document. In certain cases even the document was not shown to them. We may therefore remark here that the proper procedure to follow is that the witness should not only be asked whether he had attested a particular document but the document itself should be shown to him and he should be questioned whether it bears his signature. It should be further put to him whether the executant had also signed the document in his presence or that he had admitted his signature on the document before him. If the witness says that the executant had signed the document in his presence he should also be asked to identify the signature thereon. As defined in sec. 3 of the Transfer of Property Act 'attested' in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signed of such other person, and each of whom has signed the instrument in the presence of the executant. It is therefore necessary to bring out from the witness that he has attested the document in the sense referred above. In the present case although the execution of Ex. P-l was not proved by an attesting witness in the above manner its execution is proved by the scribe P. W. 3 Sarafuddin and the plaintiff P. W. 1 Chand Ratan. P. W. 8 Chandratan and P. W. 3 Sarafuddin have unequivocally stated that Ex. P-1 was executed in their presence and that Bithaldas and Mst. Rampyari had respectively put their signature and thumb impression in their presence. Appellant No. 1 has not dated to deny his signature on this document. Appellants Nos. 3 and 4 have not also had the courage even to produce Mst. Rampyari to deny her thumb-impression on the document. The execution of the document Ex. P-l is amply proved and therefore the appellants' learned advocate cannot justly invoke the technical provisions of sec. 68 of the Indian Evidence Act to his aid simply on the ground that the attesting witness was not properly examined when there was no law to Bikaner requiring attestation of the document at all. The plaintiff had produced power of attorney given by appellant No. 2 to appellant No. 1 to show that appellant No. 1 was authorised as his brother and general attorney to execute the document Ex. P. l on his behalf. Appellants Nos. 1 and 2 are therefore bound by Ex. P1 and so far as they are concerned there is not the slightest reason to make any change in the decree of the trial court. Coming to the second argument raised on behalf of appellants No. 3 and 4 it is urged by the appellants' learned advocate that the first mortgage deed dated 6th March 1946 was not binding on these two appellants even though it was executed by their father as manager of the joint family. It is contended that they could alienate their interest only if there was legal necessity or if he had to pay off his antecedent debts. This document does not show that the mortgage was executed for paying off the antecedent debts. It is also not proved that there was any legal necessity on account of which the father of the appellants was justified in mortgaging their share in the property. As regards the second mortgage evidence by Ex. P-l, it is further urged that the appellants' mother could alienate their share in the property only in case of legal necessity. She could not alienate the property even for paying off the antecedent debts of their father because such a right was restricted only to a father as manager of the joint family and a person who was not a father had no right to alienate the property for paying off antecedent debts even though he may be a manager of the joint family. Learned advocate for the respondent on the other hand has tried to justify the preliminary decree on the ground that the appellants were under a pious obligation to pay off their father's debt. Their father had mortgaged the property for Rs. 3000/ -. Their mother paid off that debt and mortgaged the same property with another person at the same rate of interest. It is urged that the trial court has already absolved appellants Nos. 3 and 4 from their responsibility to pay off the further loan of Rs. 2,850/-incurred by Ex. P-l. lastly, it is urged that no objection about the absence of legal necessity either at the time of the execution of the first or the second mortgage was raised in the trial court and therefore there was no issue on these points. It is requested by the respondent's learned advocate that in case the appellants' arguments carries weight with this Court, fresh issues should be framed and the respondent should be given an opportunity to produce his evidence. The question for determination therefore is as to what is the extent of the authority of a father or a non-father as manager of the joint family to alienate the right and interest of the minor members of the family in the joint family property. The reply to this question depends upon the interpretation of the following propositions of law which were laid down by their Lordships of the Privy Council in the case of Raja Brij Narain vs. Mangla Prasad (1 ). They are as follows: (1) The managing co-parcener of a joint undivided estate cannot alienate or burden the estate qua manager except for purpose of necessity; but (2) If he is the father and the reversioners are the soon he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt. (3) If he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt it would not bind more than his own interest. (4) Antecedent debt means antecedent in fact as well as in time; that is to say, that the debt must be truly independent and not part of the transaction impeached. (5) There is no rule that this result is effected by the question whether the father, who contracted the debt or burdens the estate, is alive or dead. It would be proper to examine both the mortgages separately in the light of the above observations. It is settled law that where the sons (which expression includes grand sons and the great grand sons) are joint with their father and debts are contracted by the father in his capacity of manager and head of the family, for family purposes,the sons as members of the joint family are bound to pay the debts to the extent of their interest in the co-parcenary property. Similarly if the debts are contracted by the father for his own personal benefit the sons are liable to pay the debts to the extent of their interest in the joint family property by reason of pious obligation, if such debts are not incurred for an illegal or immoral purpose. The argument of the respondent's learned advocate regarding the appellants' liability to pay their father's debt on the ground of mere pious obligation could be taken into consideration if this was a case of simple loan obtained by the appellants' father and the suit on that basis of personal obligation would have been brought within time. In the present case the date of the registration of the first mortgage deed is 7. 3. 46 whereas the suit was filed on 27. 3. 52 and since more than six years had elapsed, the suit on ground of personal liability was clearly time-barred. Proposition No. 2 laid down by their Lordships above is therefore not applicable to the present case. The present suit is one for the sale of mortgage-property and therefore the question to be considered is whether the father of appellants Nos. 3 and 4 was authorised to alienate or burden their estate in the joint family property. It would appear from propositions Nos. 1, 3 and 4 laid down by their Lordships of the Privy Council referred above, that the manager of the joint family in his capacity as such, can alienate or burden the joint undivided estate only for purposes of necessity. If such managing co-parcener happens to be the father then he is given additional authority but that also is limited, that is if he wants to burden the estate by mortgage then he can do so only to discharge an antecedent debt. In other words, even a father cannot burden the estate by mortgage if it is not executed for discharging and antecedent debt or for the necessity of the family. Their Lordships have also made it clear that an antecedent debt means a debt which is antecedent both in fact and in time, this is, the debt must be independent of the transaction which is impeached and not a part of it. In the present case although it has not been. 'hown by the respondent that the debt incurred by the appellants' father was not tainted with immorality, that alone is not sufficient to hold that the father was entitled to burden the estate. It was for the respondent to prove further that either the appellants' father obtained the loan for legal necessarily including family purposes or it was necessary for him to incur that debt in order to pay off his antecedent debts. The debts whach were incurred by him at the time of mortgage could not be called 'antecedent' because as observed by their Lordships of the Privy Council an antecedent debt must be 'antecedent' in fact as well as in time. The document dated 6. 3. 46 does not show that the appellants' father Madan Gopal had antecedent debts or that there was some legal necessity for him to incur debt. The respondent's learned advocate says that appellants Nos. 3 and 4 did not raise such an objection in the trial court and that if this contention were raised in the written statement and an issue were framed on that point he would have led evidence to show that the mortgage was binding because the father had certainly mortgaged the property for legal i. e. family purposes. We shall consider at a later stage whether the case should be remanded after framing new issues. It would be proper to discuss first if the second mortgage is binding on appellants Nos, 3 and 4 Coming to the second mortgage evidenced by Ex. P-1, it is urged by respondent's learned advocate that since the mother of appellants Nos. 3 and 4 had burdened the estate only for paying off the antecedent debts of their father it is binding on these appellants. Learned counsel for the appellants on the other hand contends that this argument is untenable. According to him proposition No. 3 of their Lordships of the Privy Council mentioned above means that the right to burden the estate for paying the antecedent debt is given only to a father as manager of joint family and not to any other manager. The mother of appellants Nos. 3 and 4 or their brothers could not therefore burden the estate of appellants Nos. 3 and 4 was concerned unless there was some legal necessity. In support of his argument he has referred to the case of Chiranjilal vs. Bankeylal (2) and laid special emphasis on the following passage appearing therein. It was observed in that case that "it was the privilege of the father alone to burden the family estate by a mortgage by discharging an antecedent debt, which must be a debt of his own A manager of the family who is not the father, cannot bind the estate merely by discharging a pre-existing debt of the family. Hence where the person other than the father prefers to act on behalf of the family in mortgaging the family property for paying off debts, it is not enough if it is shown that the mortgage was executed to pay off antecedent debts. It must be shown that the mortgage was executed for legal necessity binding on the family. The question whether a debt is antecedent or not arises only when the father makes the transfer. " It may be pointed out that this observation has itself been a subject of interpretation in other cases in that High Court and other High Courts. Learned counsel for the appellants wants to put a very narrow interpretation on these remarks. According to him the learned Judges mean to lay down that a non-father manager of the joint family has absolutely no right to alienate the shares of the minor members in the coparcenary property to pay off their father's antecedent debts in any case. We have gone through this judgment and we feel that the learned judges had made the above remark having regard to the particular facts of that case and not in the sense in which it is sought to be interpreted by learned counsel. These remarks could not be better explained than by one of the learned judges who decided that case. The same kind of question came for consideration in Ramsingh vs. Sri Charan (3) before a Division Bench of that Court. In that case the elder brother as manager of the family had transferred his own and his brother's share for the past debts incurred by their father and himself. It was urged on behalf of the minor brother that the elder brother was not entitled to transfer his brother's share and that he should have waited till the creditor had obtained a decree and proceeded to sell the family property in satisfaction of the debt due from the plaintiff's father. Chiranjilal vs. Bankeylal (2) was quoted in support of the said argument. This argument was negatived by Niamatullah. Ag. C. J. who was also a party to the previous case. It was held that all that the above case decided was that mere antecedency of father's debt did not entitled one of the sons to sell the family property. It was observed that "if the debt contracted by the father was not tained with immorality and if i,t could not be paid without the sale of family property, a case of legal necessity for the son to transfer undoubtedly exists. " It was found by the learned Judges in that case that the recurring expenses of the family amounted to Rs. 360/- a year while the income was much less and that the debt due from the two brothers could not be paid except by sale of the family property. It was therefore held that although the elder brother was not entitled to sell the family property mere because there was an antecedent debt of his father, but having regard to the circumstances of the family, the sale in question was warranted by legal necessity in so far as binding debts could not be paid otherwise than by sale of the family property. In the case of Lakhmisingh vs. Mahendra Singh (4) two brothers had executed a sale-deed of a property in which the third brother also had a share. He brought a suit for can-cellation of sale-deed. In the consideration for the fale-deed some debt incurred by their father was also included. It was contended by the plaintiff's advocate that so far as the alienation of the family property for discharging the antecedent debts of the father was concerned it could not be upheld because the transferor was not the father himself Reliance was placed for this argument on the Full Bench decision in Chiranjilal vs. Bankeylal (2 ). It was thereupon observed by the learned Judges that "while the contention is true, it is also a fact that the alienation of the property for discharging such debt may itself be supported on the ground of legal necessity independently of the antecedent debts. " Then referring to the 'necessity', it was further observed that "the necessity, such as may justify the alienation, apart from the question of the object being the repayment of antecedent debts, should be, in every case of a character as Would justify the transfer. Necessity per se is not the justifying element. It must be of a type Which entails a certain degree of pressure On the estate to justify the alienation". A reference was made to; the observations of their Lordships of the Privy Council in Hanooman Persuade Panday vs. Mst. Babooes Munraj Koonweree, (6 M. I. A. 393) in which it was held that a manager could alienate the family property only in a case of need, or for the benefit of the estate'' and that ''the actual pressure on the estate, the danger to be averted,, or the benefit to be conferred, in the particular instance, are the criteria to be regarded. " Then concluding from the above observations, it was remarked that "the test. . . . . . . . . . . would, in every case, be the presence of circumstances as could make the act of transfer an eminently desirable or urgently called for step to ease the situation existing on the date of the transfer. " In the case of Jagdeosingh vs. Sital Prasad (5) all the previous cases referred above were again examined and it was held that it Was not correct to say that under the Hindu Law no other member of the family except the father could alienate the joint family property in order to pay up the antecedent debts of the father and that the important question in such cases to consider was whether the alienation was justified on account of some pressure or necessity apart from the fact that the debt was an antecedent debt of the father. In our opinion the correct position of the law may be summoned up as follows : "a manager of the joint family other than the father can alienate or burden the estate of the joint family so as to bind other members including minor members to the extent of their interest in that property for paying off the antecedent debts of their father. But such a manager can-hot bind the estate merely for discharging the antecedent debts of the father. This privilege is confined to the father alone. In other Words, mere antecedence of the Father's debts does not authorise a manager other than the father to alienate or burden the estate. There, should be Further circumstances to show that there was a necessity to pay up the father's debt and that necessity was of a type which entailed either a certain degree of pressure on the estate, sortie danger to be averted, or some benefit to be conferred, or some other circumstance Which Would show that the alienation was eminently desirable or urgently called for, to ease the situation existing on the date of transfer. "
(3.) LEARNED counsel for the respondent has also referred to some others cases of other High Courts and therefore it would be proper to deal with them as well. The first case is Ambalavana Pillai vs. Gwrl Ammal (6 ). In that case if was held that "where a guardian of a minor mortgages minor's property to pay debts due by minor's deceased father, once, the proper application of a substantial portion of the consideration has been proved, the Court might, in the absence of circumstances creating suspicion, presume that the small balance is also likely to have been required and applied for propers purposes. There is no reason for drawing distinction between a sale and a mortgage. Moreover the circumstances of necessity are shown, a bona fide lender is not bound to see to the actual application of the money lent. " It may be pointed cut that the question which has arisen in the present case before us did not come for consideration in the above case. It dealt with different questions of law and therefore it has little bearing on the present case. The next case referred by him is Shantay Kotraya Bannadula vs. Mallappa Basappa Shettar (7 ). In that case plaintiffs 1 to 6 who were brothers Forming a joint Hindu family with their father brought a suit for declaration that certain alienations by their father, defendant 1, were not binding on them as not being for payment of antecedence debts or for legal necessity. At the time of alienation, the joint family consisted of plaintiff 1, the father, and the mother and a step-brother of plaintiff 1 who subsequently separated from the family and who never challenged the alienations. Plaintiffs 2 to 6 were subsequent to the alienation. It was held that "only the plaintiff No. 1 who was born at the time of the alienation, out of all the plaintiffs could challenge the alienation and that too for the purpose of setting it aside to the extent of his share at the date of the alienation and that the mother was not entitled to a share in plaintiff's (l) share,as she would have been entitled to receive a share equal to that of a son, only if the partition had taken place between her husband and her sons or between the sons after her husband's death. " It is obvious that in this case also the questions of law before the learned Judges were different from those in the present case and therefore this case is also not helpful to the respondent. The third case is Dharamraj Singh vs. Chandra Shekhar Rao (8 ). In that case there was some difference of opinion between two learned judges and it was held by a majority judgment that "the non-father manager can alienate the minor son's share to satisfy an antecedent debt of the son's father binding on the son, provided it is necessary for him to do so in the sense that owing to the circumstances in which the family is placed there is no other reasonable course open to him. The provision that in the opinion of these learned judges also, mere antecedency of the father's debt did not authorise the non-father manager to alienate the minors share and that the view taken in the above case is in consonance with and not against the views which we have expressed above. The last case relied upon by learned counsel for the respondent is Khushiram vs. Mehrchand (9 ). In that case it was held that "where a joint family consists of adults and minors the mere fact that all the adult members including the manager have consented to the alienation is not proof of legal necessity. Such consent, however, may supply any lacuna that may exist in the evidence of legal necessity. " in this case also the question before the learned Judges was slightly different and therefore it does not throw much light on the points which we have determined. It remains now to consider whether we should allow the respondent's request for framing new issues and remanding the case to the trial court. We think that it is obvious that the arguments which have been raised by the appellants' learned advocate in this Court were not pointedly raised in the trial court and the respondent has therefore not been able to lead any evidence on these points. It seems proper that fresh issues should be framed about both the mortgagees and the case should be remanded to the trial court. Respondent's learned advocate has also raised a question that even if it be assumed that both the mortgages were not binding upon appellants No. 3 and 4, it should be held by this court that three-fifth share in the joint family property was liable for the entire debt because the appellants' father also had one share in the property along with his four sons. Since we are remanding the case we think it proper to frame an, issue on this point also which requires consideration. We shall decide it after the parties have produced their evidence and the trial court has also expressed its opinion on all the new issues. We there-fore frame the following new issues and re-mand the case to the trial court with the direction that it will allow both parties to lead evidence and send the case back to this Court with its finding thereon. Issues-No. (1) Whether the first mort-gage dated 6. 3. 46 was executed for legal necessity or for paying off the antecedent debts of the appellants' father, (2) Whether the second mortgage dated 3. 3. 48 was executed for some legal necessity or whether there was some sort of pressure on the joint family estate to pay off the antecedent debts of the appellants' father. (3) Whether three-fifths share in the mortgaged property would still be liable for the respondent's debt even though issues No. 1 and 2 are decided against the respondent. ;