108 PUJA PAD UDIT PANCH PARMESHWAR PANCHAITI AKHARA UDASI NIRWANI Vs. SURAJPAL SINGH ALIAS CHHEDI SINGH

JUDGEMENT

(1.) The appellant in this case is a registered society which carries on the business of money lending. It appeals from a decree of the High Court at Allahabad, dated 8 February 1939, which varied the decree of the Subordinate Judge. The respondents are members of a joint undivided Hindu family governed by the Mitakshara school. The decree of which complaint is made was pronounced in an action brought by the appellant upon a simple mortgage dated 22 September, 1920. The family tree of the Hindu family and the members sued appear from the table following : Minors at date of suit (8-2-33).

(2.) By the mortgage of 22 September, 1920, Sheo Mangal Singh who was then karta of the family, Surajpal Singh, his nephew and Lakhpati Kunwar his sister-in-law mortgaged certain family property in favour of the appellant. This mortgage was given in-consideration of a sum of Rs. 35,542-1-0 made up as follows : The principal sum and interest was payable after six years and interest was to run at 10 annas per cent. per month with yearly rests. The mortgage deed was executed by Lakhpati as a nominal party only because her name appears to have been inserted in the register as an owner in the case of some of the properties. The question which their Lordships have to determine is the extent to which the joint family property is bound. Of the items claimed: Nos. 1 and 2 have been disallowed by the High Court against all the respondents and the appellants do not now dispute this decision. Both Courts allowed item 9 as against the respondents and no appeal has been taken against this decision. Accordingly, the right of the appellant to recover in respect of items 3 to 8 alone is in dispute but as the questions arising under item 3 differ somewhat from those arising under items 4 to 8 the facts must be separately set out. Before September 1916, Raghubar and Ram Adhin, who appear to have been its then owners, mortgaged the village of Jitpur to the plaintiff to secure a loan of Rs. 1950 with interest at 1 per cent. per month with half-yearly rests. On 3 September 1917, Raghubar transferred an 8 annas share in most of the village to Sheo Mangal Singh for Rs. 2600 of which 400 Rs. were handed over to the vendor and the remaining 2200 retained to answer the principal sum and interest to date on the mortgage. This last sum was not however used to pay off that mortgage. It was used for some other purpose and the sum of Rupees 2756-5-9 included in the mortgage in suit under item 3 was borrowed and used in order to free the village from that liability. The land so purchased is undoubtedly family property and itself subject to the mortgage in suit to the extent of the principal sum of Rs. 2756-5-9 with interest at the contractual rate, but the appellant claims that the whole of the rest of the family estate is likewise bound as security for this debt.

(3.) The paying off of the old mortgage and inclusion of the debt so incurred in the new is in the first place said to be beneficial to the family and therefore properly imposed as a liability upon the whole of the family property. Secondly, it was said that in any case the debt was incurred by Sheo Mangal Singh in payment of an antecedent debt owing by him and therefore that it was the duty of his son Baram Din to answer his father's debt, whether the father was alive or dead. If there had been an antecedent debt owing to the appellant which Sheo Mangal Singh was legally obliged to pay, Baram Din might be liable under the well-known doctrine the principles of which are set out by their Lordships' judgment in 51 IA 1291at p. 135. But Mangal Singh in fact was not previously indebted to the appellant. Rupees 2200 had, it is true, been left with him by Raghubar that he might pay it to the appellant but Mangal Singh was under no liability to the appellant in respect of this sum. There was, therefore, no antecedent debt and the appellant is thrown back upon the argument that the inclusion of the sum of Rs, 2756-5-9 on the mortgage sued upon was for the benefit of the family. Undoubtedly, the eight annas share in the village became joint family property and was subject to the original mortgage until it was paid off. Accordingly it is urged, that it was beneficial to reduce the interest by redeeming the earlier mortgage and transferring the liability to the later even though the joint family property as a whole thereby became mortgaged instead of, as formerly, only the particular village of Jitpur. Their Lordships are not persuaded that this is so. No evidence of the value of the encumbered village has been given, and in the embarrassed state of the family it almost certainly would have had to be sold to answer the principal and interest secured by the one mortgage or the other. Instead of imposing a liability upon the family, Sheo Mangal Singh might well have allowed the property to be sold. It is true that by so doing he would have deprived the family of an asset which otherwise would be theirs, but it is by no means clear that having regard to the mortgage with which it was burdened the asset was a valuable one or that to preserve it even at the lower rate of ten annas per month in the place of a rupee a month as provided by the earlier mortgage was beneficial to the family. Even at the reduced rate it might well have been wiser to sacrifice the village rather than to burden the entire family estate with the additional sum. This is the view of the High Court and their Lordships see no reason for differing from it.