1. One Kalyan Rai, who was the owner of a half of a house, mortgaged his half share on the 8th of November, 1882, to one Mangal Sen. The latter obtained a decree on the mortgage on 7th of December, 1894, purchased the property at an auctionsale on the 2nd of September, 1897, and sold it to the plaintiff on the 29th of October, 1897. Kalyan Rai and his three sons then took a lease from the plaintiff, but his fourth son, Bhagwat Das, who was a minor, was not a party to this. In 1898, the plaintiff brought a suit for arrears of rent and ejected the lessees. The share of Bhagwat Das was, however, exempted from the decree, and he remained in possession of one-fifth of the house, in which he was succeeded after his death by his widow, the present appellant.
2. On the 13th of October, 1909, plaintiff brought a suit for possession against her. The defence was that Kalyan Rai had no right to mortgage the house, and the decree was not binding on the defendant's husband.
3. The court of first instance held that it was not to binding, and dismissed the suit. The lower appellate court reversed this decree holding on the strenght of Mata Din v. Ganga Din, [1909] I.L.R 31 All. 599, that it was for the defendant to prove that the debt was not binding on the minor son. Karamat Husain, J., confirmed this decision.
Karamat Husain, J.:— On 8th November, 1882, one Kalyan Rai mortgaged his rights and interests to the extent of half (haq-haquq yani baqadar nisf hisse) of a house to Mangal Sen. Mangal Sen, on the basis of that mortgage, brought a suit for sale, got a decree on 7th December, 1894, brought the property to sale and purchased it himself on 2nd September, 1897. On 29th October, 1897, he sold the property purchased by him to the plaintiff, which sale was confirmed on 4th November, 1897. Kalyan had four sons, Sham Lal, Sheo Ghulam, Sri Ram, and Bhagwat Das. The last mentioned Bhagwat Das was a minor. Kalyan for himself and as guardian of his minor son, Bhagwat Das, as also his 3 sons, took a lease of the house from the plaintiff.
4. In 1898, the plaintiff instituted a suit against Kalyan Rai and his sons for arrears of rent. She got a decree against Kalyan Rai and his 3 sons who were of age. Bhagwat Das, minor son of Kalyan Rai, was exempted on the ground that the lease executed by Kalyan and his 3 sons was not binding on Bhagwat Das. Kalyan Rai and his 3 sons left the house, but Bhagwat Das continued in possession of one room in the second storey on the ground that he was entitled to one-fifth of the portion of the house mortgaged by Kalyan Rai. After Bhagwat Das's death his widow, Musammat Sohni, continued in possession of that room.
(O.P 25)
5. The plaintiff, on the 13th October, 1909, instituted a suit for possession against Musammat Sohni who resisted the suit on the following grounds:—Kalyan Rai had no power to mortgage the share of Bhagwat Das, the debt to secure which Kalyan Rai mortgaged the house in question was not an antecedent debt, the suit was barred by limitation, as Bhagwat Das was no party to the decree in execution of which the plaintiffs vendor pursued the house, that decree was not binding on Bhagwat Das or on the defendant. The court of first instance found that the defendant failed to prove that the debt for which the mortgage deed was executed by Kalyan Rai was not binding on her; that the suit was barred by limitation; that half of the house and not only the share of Kalyan Rai in the half was sold in execution of the decree obtained by Mangal Sen. Upon these findings it dismissed the suit.
6. On appeal the lower appellate court reversed the decree of the court of first instance, finding that the suit was not barred by limitation, inasmuch as it was brought within 12 years of the date of the confirmation of the auction sale and that it was for the defendant to prove that the debt contracted by Kalyan Rai was not binding on Bhagwat Das. For this latter proposition the lower appellate court relied on Mata Din v. Ganga Din(1).
7. The defendant has preferred a second appeal to this Court and the points pressed before me are the following:— The suit is barred by limitation, the burden of proving that the debt was binding on Bhagwat Das lies on the plaintiff who represents the creditor; if the debt be found to be binding on Bhagwat Das, then the defendant as his representative should be allowed an opportunity to redeem the share of Bhagwat Das in the house.
8. The suit as remarked by the lower appellate court was instituted within 12 years of the date of the confirmation of sale and is not therefore barred by limitation.
(O.P 26)
9. In support of his 2nd contention the learned Vakil for appellant relies on the Full Bench ruling of this Court in Chandra Deo Singh v. Mata Prasad(2), which lays down that a father of a joint Hindu family, governed by the Mitakshara cannot execute a mortgage of joint family proverty which will be binding on his sons, when the loan is not obtained for family necessity or to meet an antecedent debt, and that the creditor suing to enforce the mortgage executed by the father of joint family property is bound to prove that the loan secured by such mortgage was taken to satisfy an antecedent debt or was justified by some other family necessity or at least that he had before advancing the loan made enquiries which reasonably led to the belief that the loan was required for family necessity or to pay off antecedent debts.
10. The learned Vakil for the respondent distinguishes the case relied on by the appellant on the ground that the rule laid down in that case does not apply when an auction sale has taken place and that a son in a Hindu joint family governed by the Mitakshara, who seeks to set aside the auction sale is bound to establish that the transaction was not entered into to satisfy an antecedent debt or for some other necessity and in support of this, he relies upon the following passages. From Debi Singh v. Jia Ram.
“If the purchaser at a sale in execution had purchased the property from Jia Ram and not through court, it is clear that the appellant could not impeach the sale unless they were in a position to prove that the debt in respect of which the sale was effected was a debt tainted with immorality. The court has done only what Jia Ram could himself have done. Is the purchaser under the judicial sale to be in a worse position than he would have been if he purchased the property from Jia Ram”?
and the following other passage, Mata Din v. Gaya Din.
“In the present case if the father of Chitra Kote had sold the property in dispute for the amount of the decree obtained by Beni Ram and Raja Ram, the appellant Chitra Kote could not have recovered his share of the property from the purchaser save by proving that the debt for which the sale was effected was tained with immorality, and was not otherwise binding on him. The fact that an auction sale has taken place does not seem to us to make any difference. We are also of opinion that the fact that Chitra Kote is not a plaintiff, but is a defendant in the suit does not make any difference. If he was not competent to bring a suit for the recovery of his one share in the property otherwise than by establishing that the debt was not binding on him, he is not entitled to resist the claim of the purchaser save on the ground mentioned above.”
11. He also relies on Jaddo Kuar v. Sheo Shankar Ram(3), and Kehri Singh v. Chunni Lal(4).
(O.P 27)
12. The observations in 31 All. 599, at p. 615, no doubt go far enough to support the proposition put forward by the learned Vakil for the respondent that after an execution sale, the burden of proof shifts from the creditor to the sons who seek to have the sale of their shares set aside, but as I am going to decide this appeal on another ground, I express no opinion on this point.
13. It is further contended by the learned Vakil for the respondent that as Kalyan Rai and his four sons have been found to be the members of a joint Hindu family governed by the Mitakshara law, Bhagwat Das's interest in half of the house in question by survivorship passed to his brothers and father and the possession of his widow was that of mere trespasser. She therefore, as a trespasser, could not resist the suit of the plaintiff on the ground that her husband's share could not be mortgaged by Kalyan Rai and could not pass to the auction-purchaser at sale on the mortgage decree, that defence if open at all was open to Kalyan Rai and his sons. This contention is, in my opinion, well founded.
14. Regarding the third plea taken in the memorandum of appeal, it is sufficient to say that in the view I take, it is not necessary to decide, it.
15. The result is that I look upon the defendant for the purposes of this case as a mere trespasser and not a representative of her husband, Bhagwat Das, whose interest passed by survivorship to his father and brother.
16. On this ground and this ground alone I uphold the decree of the court below and dismiss the appeal with costs.
17. Defendant appealed.
Sital Prasad Ghosh, for the appellant.
18. The ruling in
Debt Singh v. Jia Ram, [1902] I.L.R 25 All. 214,
has been qualified by
Chandradeo Singh v. Mata Prasad, [1909] I.L.R 31 All. 176.
Banerji, J.:— 31 All., has not altered the law laid down in 25 All.
(O.P 28)
19. True, 25 All. is still good. But it should be read in the light of 31 All. If a father had no right to mortgage, an auction sale can confer no better title on the purchaser, who merely stands in his shoes. The sons can still challenge it.
Gaya Prasad Umer v. Raghunath Rai, [1911] 8 A.L.J.R 1022.
Richards, C.J:— If the minor son had been alive, you might have brought a suit in his name. Now that he is dead, his title has vested in others, who have all admitted plaintiff's right.
20. The possession of a one-fifth share was virtually a separation, though not by metes and bounds. The other sons were out of possession and could not have continued the suit. He also cited.
Manbahal Rai v. Gopal Misra, [1901] A.W.N 57.
21. Govind Prasad, for the respondent, was not called upon.
Richards, C.J:— We think that the ground on which our learned colleague decided the case is correct, and it is unnecessary to go into the other question of the powers of a Hindu father and the right of the sons to challenge the exercise of those powers. We accordingly dismiss the appeal with costs.
22. Appeal dismissed