RATTAN CHAND Vs. RAM KISHAN MURARJI

JUDGEMENT

(1.) This is a plaintiff's appeal arising out of a suit for a declaration that a mortgage decree dated 26 July 1922, obtained on the basis of a mortgage-deed dated 5 December 1920 executed by the plaintiff's brother Gulab Chand and hypothecating joint family property was not binding on the plaintiff. It appears that the plaintiff's father, Hardeo Das, carried on business in partnership with his brother-in-law Kalyan Mal under the style Hardeo Das Kalyan Mal. He died in 1917 leaving Gulab Chand, his adopted son, and two subsequently born sons, Ratan Chand and Madan Gopal, the latter two being minors. The business in partnership with Kalyan Mal was admittedly carried on till 9 October 1919 on which date there was its dissolution and Kalyan Mal separated. Madan Gopal had in the meantime died. Accounts were made, outstandings were divided and liabilities were apportioned. The liabilities, however, exceeded the assets to a very considerable extent and amounted to about Rs. 44,000.

(2.) On the same date, namely, 9 of October 1919 a business under the style "Hardeo Das Gulab Chand" was started on the same premises by Gulab Chand purporting to carry it on behalf of the family. A new set of books were opened on that date. The balances of the old partnership were not transferred, but the liabilities were debited in a ledger styled Hardeo Das. Subsequently the liabilities were discharged by alienations of the family property with which we are not concerned in this case. Towards the end of 1920 there appears to have been considerable loss suffered in this business the greater part of which was undoubtedly of a highly speculative character. On 2 September, 1920 Gulab Chand applied to the District Judge under the Guardian and Wards Act of 1890 for being appointed a guardian. In his petition he stated that the family was joint, that his younger brother was minor, that the joint business which had been carried on for a long time at the firm styled Hardeo Das Gulab Chand had suffered a loss of about Rs. 35,000 and it was necessary to pay it off by raising money on the security of the family property.

(3.) Gulab Chand did not state that he was the adopted son of Hardeo Das while his minor brother was the natural born son. Gulab Chand wrongly alleged that the shares of the two brothers were half and half whereas in point of fact Gulab Chand was entitled to only a 1/4 share, the rest belonging to Ratan Chand. Apparently there was no objection taken to this application and the District Judge appointed Gulab Chand as the certificated guardian of his minor brother Ratan Chand although the family on the applicant's own showing was a joint Hindu family. On I5 September 1920 Ratan Chand applied for permission to transfer the minor's share in the joint property in order to pay off the debt. The application was most vague. It did not set forth the exact amount of the debt or the particulars of the deed of transfer which the applicant had in contemplation. Apparently without any further enquiry or any fresh notice to the mother of the minor the District Judge on that very day granted the application. The order consists of one word "sanctioned." It did not comply with the requirements of Section 31 of Act 8 of 1890 and did not recite the necessity or the advantage. Nor did it describe the property with respect to which the permission was given, nor did it specify any condition.