Dawson Miller, C.J:— The suit out of which this appeal arises was instituted in the Court of the Subordinate Judge of Bhagalpur on the 5th February, 1915, by the respondents claiming Rs. 11,81,811, principal and interest due under a mortgage bond, dated the 21st December, 1896, executed by some of the appellants to secure a sum of Rs. 3,50,000; of which Rs. 1,36,142 were advanced in cash, the balance being the amount due under a previous bond. The bond in suit provided that the principal sum was to carry 7½ per cent. compound interest with yearly rests. The principal was repayable in the month of Falgun 1310F. The last day of Falgum 1310F, corresponds to the 14th March, 1903, A.D “The first party defendants are the surviving executants of the bond and other members of their family who form a joint Hindu family governed by the Mithila law. The second party defendant, Dwarka Prasad Singh, is no longer a member of the family, having been adopted into another family. The third party defendants are subsequent transferees of some of the mortgaged property. The remainder are those having various interests in the property and who have been substituted for others. The plaintiffs are the successors in interest of the mortgagee Rai Bahadur Surjya Narain Singh, deceased.

Various issues were raised at the trial. The Subordinate Judge before whom the case came found all the issues in favour of the plaintiffs except as to certain items of the loan which he found were not justified by legal necessity. He passed a mortgage decree in favour of the plaintiffs for Rs. 15,27,997 including costs and interest up to the expiry of the days of grace and as against the executants of the bond a further personal decree for the sum of Rs. 44,164 including interest and proportionate costs in respect of that part of the advance which he considered was not justified by family necessity. He further ordered that the latter sum should carry interest at 6 per cent. per annum from the date of the decree until realization.

From that decree the defendants' first party have appealed to this Court. Six points have been urged before us on behalf of the appellants:—

(1) That the Bhagalpur Court had no jurisdiction to try the suit.

(2) That the mortgaged property being situated within the Santal Parganas the amount of interest that can be decreed is limited by the pro-visions of section 6 of Begulation III of 1872 relating to the Santal Parganas.

(3) That the suit is barred by limitation.

(4) That the claim for a personal decree is barred by the provisions of Order 2, rule 2, of the Civil Procedure Code.

(5) That there being no legal necessity or antecedent debt justifying the greater part of the loan the mortgage is to that extent not binding on the joint family property.

(6) That interest at 6 per cent. awarded by the decree is contrary to the provisions of section 6 of Regulation III of 1872.

The determination of the first point depends upon whether section 5 of the Regulation of 1872 as amended by subsequent legislation bars the jurisdiction of the Civil Courts in the circumstances existing when the suit was instituted. Section 5 as amended by Regulation III of 1908, is as follows:—

“5. (1) From the date on which, under section 9, the Lieutenant-Governor declares, by a notification in the Calcutta Gazette, that a settlement shall be made of the whole or any part of the Santal Parganas, until the date on which such settlement is declared, by a like notification, to have been completed, no suit shall be in any Civil Court established under the Bengal, Agra and Assam Civil Courts Act, 1887, in regard to—

(a) any land or any interest in, or arising out of, land, or

(b) the rent or profits of any land, or

(c) any village headship or other office connected with any land, in the area covered by such first-mentioned notification; not shall any Civil Court proceed with the hearing of any such suit which may be pending before it.”

The second clause of the section states that the courts in which the suits referred to shall be tried are those appointed by the Lieutenant-Governor under the provisions of the Santal Parganas Act, 1855, or under section 10 of this Regulation. The 9th section referred to in section 5 enables the Lieutenant-Governor from time to time by Notification in the Calcutta Gazette to declare that a settlement shall be made of the whole or any part of the Santal Parganas.

Whether at the date of this suit settlement operations in respect to the mortgaged property were still going on in the Santal Parganas or whether the settlement operations which began in 1873 had been completed and notified in the Calcutta Gazette is a question of fact.

On the 20th June, 1904, the same plaintiffs or their predecessors in interest instituted a suit on the same bond against the defendants' family and obtained a decree which was affirmed on appeal by the High Court, of Calcutta. The defendants carried the case on appeal to His Majesty in Council and on the 19th May, 1914, that appeal was allowed and the suit was dismissed on the ground that section 5 of Regulation III of 1872 was a bar to the jurisdiction of the Bhagalpur Court, at the date when the suit was instituted. The reason for that decision was that the greater portion of the land included in the bond was situated within the Santal Parganas and although some portions of it had been settled and a notification to that effect been made as provided in the section, other portions were still under settlement, their completion not having been notified when the suit was instituted. [See Maha Prasad Singh v. Ramani Mohan Singh].

The respondents contend, however, that on the 5th February, 1915, when the plaint in the present suit was filed, the settlement had been completed and duly notified and section 5 of the Regulation had therefore ceased to operate. The appellants on the other hand say that although the last settlement operations in the Santal Parganas were completed in the year 1910, there was never any notification in the Calcutta Gazette to show that all the lands mortgaged and placed under settlement had been so settled.

There have been altogether four settlement operations in the Santal Parganas since the Regulation of 1872 was passed. The first was that conducted by Mr. Woods which continued from 1873 to 1879; the second was Mr. Craven's settlement which began in 1889, and ended in 1894. Between 1898 and 1905, Mr. H. McPherson continued the work of re-settlement begun by Mr. Craven. Certain villages still remained unsettled when Mr. McPherson made his final report and these were dealt with in Mr. Allanson's settlement between 1906 and 1910. Since that date no further settlement operations have taken place in the Santal Parganas. The appellants' case is that the whole of the Santal Parganas was placed under settlement in 1873, Mr. Woods being deputed as Settlement Officer for the purpose, and that no notification was ever published in the Calcutta Gazette relating to the completion of that settlement. For the first part of this contention they rely upon a statement in Mr. McPherson's settlement report. For the second part they rely upon the fact that no notification of the completion of Woods' settlement was produced. Since Mr. Woods' time, however, there has been a re-settlement by other Settlement Officers and in each case the notifications required by section 5 have been issued and are in evidence before us. The passage relied on in Mr. McPherson's report to the effect that the whole of the Santal Parganas was placed under settlement in 1873 is to be found at the beginning of his report and may be quoted here. It states,

“The whole of the district which has an area of 5,470 square miles was settled for the first time under the provisions of Regulation III of 1872 between the years 1873 and 1879.”

The report, however, adds that;

“During the years 1889 to 1894, 1,579 square miles of this area was settled for a second time under the supervision of Mr. John Craven, Deputy Collector. In 1893 I was deputed to continue the work of re-settlement.”

The report then explains how he had practically completed the second settlement when Mr. Allanson took over the work in 1905. The notifications relating to the completion of the settlements by Mr. Craven, Mr. McPherson and Mr. Allanson have all been produced and proved in evidence. That relating to Mr. Woods' settlement has not. It is important to bear in mind that section 5 of the Regulation as it stood in 1872 provided that

“Till such time as a settlement of the whole or any part of the Santal Parganas shall be made under the rules hereinafter provided and the settlement shall be declared by a notification in the Calcutta Gazette to have been completed and concluded no suit shall be in any (civil) court,” etc.

That section excluded the jurisdiction of the ordinary courts from the date of the Regulation until the notification of completion but in 1908 the section was repealed and a new section in the form set out above was enacted. The effect of the amendment was to exclude for the future the jurisdiction of the Civil Courts to try cases relating to any land in the Santal Parganas only during such period as that land should be under settlement, the period being reckoned from the time when the land is notified as under settlement to the time when the settlement is notified as completed. The appellants, who rely on the absence of a notification declaring that Woods' settlement was completed, have given no evidence to show that settlement was made under any notification in the Calcutta Gazette or to show that the notification, if any, authorizing that settlement included the lands in suit. The passage relied on in Mr. McPherson's report shows that the whole district was settled between 1873 and 1879 and on the evidence produced there is nothing to show that the lands in suit were the subject of a notification either at the beginning or at the end of the first settlement. It is not disputed that Woods' settlement came to an end more than thirty-five years before the suit was instituted and the appellants are raising a purely technical objection that there is no notification to that effect. I think they are met, however, upon their own ground by the reply that they have failed to show that the lands in suit were ever brought under settlement by notification in the Calcutta Gazette. In effect, we are asked in the first place to assume without evidence that there was a notification placing the lands in suit under settlement in 1873 and in the second place that although that settlement was concluded many years ago and a re-settlement has since taken place there was no notification of the completion of the settlement of those lands by Mr. Woods. It appears to me that the appellants fail at the outset to establish their plea in so far as it depends upon the first settlement.

It is contended, however, that even under the subsequent settlements the whole of the lands in suit were never notified as out of settlement. Reliance was placed upon a passage in section 103, at page 66 of Mr. Allanson's report to the effect that 45 villages of Taluk Barcope which had not been settled by Mr. Craven were included in Mr. McPherson's second programme, and that the notification of the completion of the settlement under Mr. McPherson's first and second programme showed only three villages and forty villages, respectively, as having been settled. Mr. Allanson adds, however, in his report,

“But the bulk of the estate, viz., 66.86 square miles has been resettled in the present programme.”

The notification authorizing Mr. Allanson's settlement includes 201 villages in Barcope Tauzi No. 481 and the notification of completion of that settlement has been produced and proved. Assuming that a few villages in Barcope were not settled by Mr. McPherson there is no evidence to show that these villages were not included in the settlement made by Mr. Allanson who took over charge from Mr. McPherson in 1905. There is nothing to show which villages they were and there is certainly nothing to show that they were comprised in Tauzi No. 481 of Barcope within which tauzi alone the mortgaged property in Barcope is situated. This tauzi number comprises only a portion of what is known as Taluk Barcope or Tappa Barcope. The appellants have, therefore, failed to show that any of the mortgaged property was notified for settlement and not notified as settled. The plea as to jurisdiction accordingly fails.

The second point raised is whether the restrictions as to interest contained in section 6 of the Regulation of 1872 are binding upon the ordinary Civil Courts locally situated outside the Santal Parganas but exercising jurisdiction over property within that area and, if so, whether the section applies when no settlement operations are going on. The second branch of this question can hardly arise independently of the first as it is only during settlement operations that the jurisdiction of the ordinary courts is barred. Section 6 is as follows:—

“6. All Courts having jurisdiction in the Santal Parganas shall observe the following rules relating to usury, namely:—

(a) interest on any debt or liability for a period exceeding one year shall not be decreed at a higher rate than two per cent. per mensem notwithstanding any agreement to the contrary, and no compound interest arising from any intermediate adjustment of account shall be decreed;

(b) the total interest decreed on any land or debt shall never exceed one-fourth of the principal sum, if the period be not more than one year, and shall not in any other case exceed the principal of the original debt or loan.

Explanation.—The expression ‘intermediate adjustment of account’ in clause (a) of this section means any adjustment of account which is not final and includes the renewal of an existing claim by bond, decree or otherwise when, without the passing of fresh consideration, the original claim is increased by such renewal.

Illustration.—A bond is given for Rs. 75, of which Rs. 25 are interest. Unless the obligee can prove to the satisfaction of the Court that he gave such consideration for the bond as rendered the transaction fair and equitable, of the Rs. 75, Rs. 50 only will bear interest, and the limit of the claim on the bond will be Rs. 100.

The Explanation and the Illustration appended to the section were added in 1893 by the Santal Parganas Justice Regulation (V of 1893).

There appears to me to be no reason for limiting the operation of section 6 to such time as settlement operations may be in progress. Had this been the intention one would have expected that words limiting its operation to a particular period as in section 5 would have been inserted; nor can I see any reason why section 6 any more than section 7 should be limited in the manner suggested. The latter section which exempts certain agreements as to rents and rights in land from stamp duty is clearly intended to be general and permanent in its application. The reason for the enactment of the section is no doubt to be found in the preamble of Act XXXVII of 1855 which by section 2 of the Regulation must be read with it and which recites that the general. Regulations and Acts are not adapted to the uncivilized race of people called Santals who inhabit the district. It would be a curious result of this legislation if the protection from their own ignorance and improvidence afforded to the Santals by the section should depend upon the fortuitous circumstance of a settlement being in operation. I am unable to accept this view. The considerations just mentioned apply to some extent also in determining whether the courts mentioned in the section are only courts locally situated in the Santal Parganas or all courts having jurisdiction within, even when situated outside that area. I think the plain meaning of the section is that all courts, wherever they may be locally situated having jurisdiction within the Santal Parganas must, when exercising jurisdiction in cases arising within the Santal Parganas, follow the rules relating to usury set out in the section. This was the view expressed by Lord Moulton in delivering the judgment of the Judicial Committee in Maha Prasad Singh v. Ramani Mohan Singh. It is contended that the view there expressed was obiter as the case was decided upon the interpretation of clause 5 of the Regulation the case, however, went before their Lordships on appeal upon this very question and although their decision was ultimately based upon the question of jurisdiction they thought fit to express an opinion upon the interpretation of clause 6. The whole of the Acts and Regulations relating to the Santal Parganas were there considered and it was found that the ordinary courts had no jurisdiction to try suits relating to land in the Santal Parganas so long as the land was under settlement “and further that whatever be the Court that has jurisdiction to decide cases within the Santal Parganas and is exercising that jurisdiction it must observe the two rules relating to usury above referred to” and in a later passage in the judgment, their Lordships are also of opinion “that apart from the question of jurisdiction, any Court dealing with the subject-matter of the suit would be bound to give full force and effect to the provisions of section 6 of the Santal Parganas Settlement Regulation, 1872, relating to usury, and therefore, to have refused to decree any compound interest arising from any intermediate adjustment of interest or an amount of total interest exceeding the principal of the original debt or loan”. This can only mean as I interpret it that even if the Bhagalpur Court which had tried the suit then under appeal had jurisdiction it would have been bound by the provisions of section 6. Whether this part of the decision of their Lordships is binding upon this Court or whether it is to be treated merely as obiter dictum, need not be determined as I should have taken the same view even without the assistance of that decision.

It remains to consider the interpretation of the rules contained in section 6 and how they affect the facts of the present case. The bond in suit was the fifth of a series the last three of which were renewals of the previous bonds and interest then in arrears and the last two of which included additional cash loans. The following table shows some particulars of the different bonds which may conveniently be stated here:—

Date of bond. Principal and rate of interest. Cash consideration. Payments admitted. Rs. Rs. a. p. Rs. a. p. (1) 3rd October 1883 … 73,000 12% 73,000 0 0 12,000 0 0 principal. 33,917 8 0 interest. (2) 20th September 1888 12,000 11% 12,000 0 0 443 10 7½ interest. (3) 10th May 1880 … 95,600 10% Nil. 7,037 3 7½ interest. (4) 29th September 1891 1,67,000 9% 64,761 1 9 39,705 13 3 interest. (5) 21st December 1896 3,50,000 7⅛% 1,36,142 0 0 55,248 3 7½ interest. Total … … 2,85,963 1 9 1,48,352 7 1½

Some argument was addressed to us as to the meaning of compound interest arising from any intermediate adjustment of account, and the Explanation added to the section. It is admitted, however, by the appellants that simple interest calculated on the actual cash advanced beginning with the first bond amounts to more than the total sums advanced which it is contended form the principal of the original debt or loan. The actual sums advanced amount to Rs. 2,85,903-1-9, of which Rs. 12,000 were repaid on the 13th January, 1884, leaving a balance of Rs. 2,73,903-1-9 which according to the appellants is the limit of the total amount of interest payable. The total amount of interest admittedly paid was Rs. 1,36,357-7½, leaving a balance of Rs. 1,37,951-10-7½ as interest, payable in addition to the principal. If the appellants should fail to establish their other contentions they admit this basis of calculation as establishing their liability. The respondents on the other hand say that the principal of the original debt or loan is Rs. 3,50,000, the amount of the last bond, as this was a new settlement for which consideration was given by a reduction of interest. Clause (b), however, of the section provides in terms that the total interest decreed shall not exceed the principal of the original debt or loan and makes no exception in cases of renewal or intermediate adjustment, and the Illustration seems to make it clear that in no case can more than the total sum advanced be decreed as interest. I think the intention of the section is that the liability for interest can in no case be decreed in excess of the amount actually advanced.

The respondents further contend that the interest already paid should not be credited in arriving at the amount which may be decreed. The wording of clause (b) of the section, if taken in its literal sense, would appear to support this view. This interpretation is. I think contrary to the apparent purpose of the enactment, as pointed out by Sir Erancis Maclean, C.J, and Pargiter, J., in Ram Chandra Marwari v. Rani Keshobati Kumari where the question was fully considered, and I see no reason to differ from the view expressed by the majority of the Court in that case. I think the intention of the legislature was that the amount decreed should not be such as to increase the total liability for interest on the bond beyond the amount of the principal debt and this intention is to some extent borne out by reference to clause (a) which restricts the rate of interest. I hold, therefore, that the interest recoverable should be limited to the amount of the principal of the original debt or loan after crediting the interest already paid.

The third question relates to limitation and arises under the following circumstances. The due date of the fifth and last bond was the 14th March, 1903, and no interest has been paid since then or any acknowledgment made which would postpone the commencement of the limitation period which in the present case is 12 years. The present suit was instituted on the 5th February, 1915, after an unsuccessful attempt to sue in the Bhagalpur Court which was dismissed by the Privy Council, as already stated, for want of jurisdiction. The previous suit from the time of its institution, to the date when it was finally disposed of by the Judicial Committee, occupied a period of about ten years, viz., from the 20th June, 1904, to the 19th May, 1914, and even without deducting this period, the suit was instituted within the limitation period. But the defendant 16(a), Sripati Singh, was not originally a party to the suit. He was added defendant on the 30th May, 1916, that is, more than twelve years after the cause of action arose. By section 22 of the Limitation Act, the suit must be deemed to have been instituted against him on that date. Sripati is the minor son of Sasi Bhusan Singh, defendant No. 5, and grandson of Maha Prasad Singh, deceased, both of whom were executants of the bond. He was born in 1910, after the bond was executed, and whilst the previous suit was pending. He, therefore, as a member of the family, acquired an interest by birth in the equity of redemption in the mortgaged property. It is contended by the appellants that under Order XXXIV, rule I, of the Civil Procedure Code, he was a necessary party to the suit and as he was not joined as a party until after the limitation period had expired, the suit cannot now be entertained and should be dismissed. To this contention the respondents reply, first, that by section 14 of the Limitation Act, the ten years during which they were prosecuting the previous suit should be excluded in computing the period of limitation; secondly, that Sripati was not a necessary party as his interest was sufficiently represented by his father or by one or other of the members of his family who were originally joined, some of whom at least were not executants of the bonds and have raised all the pleas that are open to Sripati; thirdly, that the respondents had no notice of Sripati's existence and could not reasonably be expected to have such notice until the 25th April, 1916, when it was first disclosed in the written statement of the appellant Lakhi Prasad, and that immediately afterwards they made enquiries which disclosed that Sripati had not been living with his father's family but with his maternal grandfather at Mahagaon, since his birth, and that he was thereupon added as a party on the 30th May, and that Order XXXIV, rule 1, only applies provided the plaintiff had notice of the interest there referred to as under the law previously in force, under section 85 of the Transfer of Property Act; fourthly, that the defendant Sripati, not having been born at the date of the mortgage at most only acquired a right in the equity of redemption remaining in his father's family, and the effect of his non-joinder would merely be to keep his right of redemption alive.

In my opinion the first point raised by the respondents, viz., section 14 of the Limitation Act, is a complete answer to the plea of limitation. When the previous suit was instituted, Sripati was not born and could not then be made a party. He was added about a year and two months after the limitation period expired, and even if the period between the institution of the first suit in 1904 and Sripati's birth in 1910 be alone excluded the limitation period as against him had not expired. It is argued, however, that he was not a defendant in the first suit and that section 14 of the Act only applies to cases where the defendants are the same. By section 2(4) of the Act “defendant” includes any person from or through whom a deiendant derives his liability to be sued, it is in my opinion through his father and the other members of his family that Sripati derives his liability to be sued. It is by reason of the charge created on the family property by them that Sripati as a member of the family with an interest in that property acquired at his birth derives his liability to be impleaded as a defendant in a suit against the family's property. We have been referred to certain decisions of which Sunder Lal v. Chhitar Mal may be cited as typical to show that a son in a Mitakshara family does not claim under his father within the meaning of section 13 (now section 11) of the Civil Procedure Code. Whatever may be the weight of those authorities, and I express no opinion about them, they are not authorities as to the interpretation of section 2 of the Limitation Act. That section seems to assume that every person who acquires an interest by devolution or otherwise in the subject-matter of litigation previously vested in others, which renders him liable to be impleaded as a defendant, derives his liability to be sued from or through somebody. In the case of a new-born son in a Mitakshara family, the person or persons through whom he derives his liability must be the other members of the family in whom the property which the son acquires by birth was previously vested. If the appellants' contention be accepted it would in many cases work a manifest injustice. They contend that each member of the joint family alive at the date of the suit is a necessary party in whose absence the suit is not maintainable and further that the time occupied in the previous fruitless litigation cannot be deducted in estimating the limitation period as against him even if he was born the day before the second suit was instituted. In such a case, if the second suit was instituted after twelve years from the date when the cause of action arose, the non-joinder of the newly-born son of whose existence the plaintiffs had no knowledge, would render the whole suit liable to dismissal unless it can be said that the new member of the family derived his liability to be sued from or through his father or those who before his birth represented the property. In my opinion, section 14 of the Limitation Act applies and the suit is not barred. It is not necessary, therefore, to consider the other points taken by the respondents on this part of the case.

The fourth point taken by the appellants relates only to the respondents' right to a personal decree against the executants of the bond. It is contended by the appellants that in the previous suit no claim was made for a personal decree and, therefore, the respondents are precluded by Order II, rule 2, from suing for the relief which they omitted from the previous suit. As an alternative argument they contend that if a claim for a personal decree must be taken to have been included in the previous suit then it must be regarded as having been dismissed not for want of jurisdiction, but on some other ground, and the matter is res judicata and cannot be re-opened. For this part of the argument they rely upon section 11 of the Civil Procedure Code read in the light of the 4th and 5th Explanations appended to the section.

The relief asked for in the previous suit was in the form usually employed in such cases. It asked for (1) an account of the amount due under the bond with directions to the defendant to pay the amount found due within six months and in default a sale of the mortgaged property and extinguishment of the right of redemption; (2) in the event of the mortgaged property proving insufficient to cover the decretal amount and costs a decree against the persons of the defendants 1 to 7 (the surviving executants of the bond) and the properties of the first party defendants (all the members of the family); and (3) such other relief as may be deemed proper. The second prayer is no doubt inserted in pursuance of Order XXXIV, rule 6, of the Civil Procedure Code. The cause of action in the present case was the failure to repay the principal and interest due under the bond and the relief claimable was both against the property hypothecated and against the executants of the bond on their covenant to repay. It would follow, therefore, that if the respondents omitted to sue for a personal decree against the mortgagors on the covenant they could not afterwards sue for that which was omitted. It is not usual or necessary to ask for a personal decree where the property is held liable for the whole of the principal debt and interest except in so far as the proceeds may be insufficient, but it is quite open to the Court in a suit framed as this was to pass a decree against the mortgagors on their covenant to repay if the whole or a part of the claim should be held not to be chargeable on the property. I think it must be held, therefore, that the respondents did not omit to sue for a personal decree which might be granted under the third prayer set out in the plaint. It is argued, however, that even so, no effort was made in the previous suit to obtain a personal decree when the decree for sale of the property failed and if such a claim was involved it must be taken to have been dismissed by their Lordships when the matter came before the Judicial Committee. It must be conceded that the relief, if claimed, must be deemed to have been dismissed and the appellants contend that it could not have been dismissed for want of jurisdiction. I think it would be fruitless to speculate as to the reasons why the relief was refused. It was merely ancillary to a claim in regard to land over which the Bhagalpur Court had no jurisdiction, and the whole suit was dismissed upon that ground and no other. I do not think it is open to us to assume that their Lordships had any other reason for refusing this relief and I would hold that it is still open to the respondents to claim a personal decree to the extent to which they may fail against the mortgaged property. I may mention that the point does not appear to have been urged before the Subordinate Judge and we have not the advantage of having his opinion before us.

The fifth point raises two questions, (1) whether there was an antecedent debt which would justify the alienation of the family property; and (2) whether failing such justification the loan was for the benefit of the family or warranted by family necessities. In the former case the charge would be valid. In the latter case the consent of the minor members of the family to the transaction would be implied, although not expressly given.

As to Rs. 2,13,858 advanced under the bond, this sum was the balance due under the previous bond for which the fathers of all the minor defendants were liable. To this extent, therefore, there was presumably an antecedent debt for which the debtors could validly charge the family property without the express consent of their sons or grandsons. Two points, however, were raised by the appellants which require consideration. In the first place it was argued that the principle laid down in Sahu Ram Chandra v. Bhup Singh had the effect of limiting the doctrine of antecedency to such debts only as are not themselves secured by a charge on the immovable property of the family. So far as this Court is concerned we are bound by the decision of the majority of the Full Bench in the recent case of Mathura Misra v. Rajkumar Misra, , which decided, following the decision of the High Court at Madras, in Armuaham Chetty v. Muthu Koundan that the doctrine of antecedency applies where the debt is one incurred in substance and reality antecedently to the mortgage whether or not the debt so incurred was secured by a charge on the family property. This point must, therefore, be decided against the appellants.

In the second place the appellants contend that the rule as to antecedent debt cannot apply where it is the joint debt of the heads of the different branches of the joint family. They rely for this proposition upon certain passages in the Vivada Chintamani, an authority binding upon those governed by the Mithila school of Mitakshara law, to the effect that the sons; are only responsible for the share of their father when the debts are the joint debts of their father and others, and if two brothers have a joint debt the son of the survivor is not bound for more than the father's share. (Visvada Chintamani, Tagore's Translation, pages 34 and 35). It is argued from this that the liability of the different branches of the family is a several liability which cannot support a charge upon the joint family property of the members as a whole. In the present case, however, the debt was incurred by each of the heads of the four different branches of the joint family and all the other defendants are their sons or grandsons so that all the interests were involved. There seems to me, therefore, to be no reason why the charge should not be binding upon the property in the hands of all the defendants. Moreover the doctrine of antecedent debt in so far as it enables the debtor to charge the family property during his life-time so as to bind his sons' interest is not justified by the actual text of the Mitakshara. It is a modern development of the pious obligation of the sons to pay their father's debts, an obligation which, according; to the text the commentators, only arises after the father's death, but which has in comparatively recent times formed the basis of an exception to the general rule, that the manager of a Mitakshara family cannot validly alienate the family property for purposes unconnected with the needs of the family or the benefit of the estate. The doctrine is too well established at the present day to admit of its being questioned by a reference to the texts of the commentators. Admitting that it applies only as against the sons and grandsons of the debtor and could not apply so as to permit of a valid charge on the family property where the interests of collaterals are involved nevertheless where all the adult members of the family are themselves the debtors and the only other persons interested are their minor sons or grandsons, I can see no reason why the doctrine should not be applied. Although so far as I am aware, the objection now raised has not hitherto been the subject of express decision, there are many instances in reported cases where the doctrine of antecedent debt has been applied in circumstances similar to the present. [See Bhagbat Pershad Singh v. Girja Koer; Khalilul Rahman v. Gobind Pershad]. In my opinion the appellants' contention on this part of the case fails. It follows, therefore, subject to the question of interest, that in so far as the claim for Rs. 2,13,858 retained in discharge of the previous bond is concerned, the mortgage creates a valid charge upon the estate, and it is unnecessary to consider how far this sum can be justified by family necessity.

With regard to the balance of Rs. 1,36,142, representing the cash consideration for the bond in suit, the learned Subordinate Judge considered that the bulk of this, amounting to Rs. 1,23,718-4-9, was justified by legal necessity or antecedent debt, and included it together with the amount due under the previous bond in the mortgage decree, giving a personal decree for the balance of Rs. 12,963-11-3 with interest, considering that the plaintiffs had failed to establish legal necessity for the latter sum which had been taken for the personal purposes of the borrowers. The deduction of this sum from the mortgage decree was not challenged by the respondents and there is no cross-appeal. The appellants however, contend that the greater part of the cash consideration included in the mortgage decree cannot be justified either on the ground of family necessity or antecedent debt.

Evidence has been given in great detail relating to a large number of items of debt which were discharged out of the cash advance. Seventeen items, including the principal and interest due on the previous bond, are set out in Schedule No. 1 of the bond in suit and amount together to Rs. 3,10,763-9-5. To most of these items, however, must be added interest up to the date when they were paid off out of the consideration money obtained for that purpose. Other debts not shown in the schedule were proved amounting to Rs. 10,573 which were paid out of the amount advanced. In addition the cost of the stamp for the bond, the writer's remuneration and the registration fee were paid and proved. The total sum thus accounted for including the sum due under the previous bond and after adding interest on the scheduled debts amounted to Rs. 3,37,036-4-9, for which the Subordinate Judge gave a mortgage decree with interest at the bond rate, leaving a balance of Rs. 12,963-11-3, taken for personal purposes of the borrowers and not accounted for. The various items showing the payments of the debts out of the consideration money for the bond, have been set out in the tabular form and printed by the respondents in the schedules marked G and H which have proved very useful for purposes of reference during the hearing of the appeal it will be useful here to set out an analysis of the different items showing how the total is arrived at:—

Rs. (1) Amount due under the previous bond … 2,13,858 (2) Antecedent debts incurred by the heads of the four branches of the family … 56,573 (3) Antecedent debts incurred by one or more, but not by all the heads of the different branches of the family … 62,736 (4) Stamp fee on bond … … 1,750 (5) Writer's remuneration … … 1,750 (6) Registration fee … … 370 (7) Taken for personal purposes and not accounted for … … 12,963 Total … … 3,50,000

With regard to the second item, representing the antecedent debts incurred by the four branches of the family, I have already held that the doctrine of antecedency applies. This sum includes the items numbered 2, 9, 10, 11, 13, 14 and 17 set out in the schedule No. 1 of the bond which, when the interest at the date of the bond is added, amount to Rs. 55,573 and a further debt of Rs. 1,000 under a rokar (Ex. 4-K) which was proved but not included in that schedule. With regard to the 17th item in the schedule amounting with interest to Rs. 21,570-8-0, the appellants took a further point. This sum was due to Anand Ram Marwari under a rokar (Ex. 4-J), dated the 20th Aughan, 1304F (10th December, A.D). It was a consolidation of fourteen earlier rokars of various debts between September 1893 and September 1896, some of which were stated in the rokar to be for cash for meeting necessary expenses, others for the price of cloth and one small sum of Rs. 265-9-0 for the price of gold apparently for ornaments. The original rokars were for sums borrowed by one or other of the heads of the family but never by all four and it was only on the 10th December, 1896, that they all acknowledged their joint liability for these sums. There can be no doubt that at that time the negotiations for the loan from the respondents were going on, if not actually completed, and the stamp for the bond had in fact been purchased. It would be difficult, in my opinion, to find that the transaction of the 10th December was dissociated in fact from the mortgage transaction. These debts were consolidated under the general transaction creating a joint liability so near the date of the mortgage that it can hardly be said to be dissociated in point of time. I think that the only reliable inference to draw is that the respondents when they undertook a joint liability had in mind the necessity of creating such a liability in order to obviate any question in future as to their right to charge the family estate with this sum. It was Surjya Narain, the mortgagee himself, who discharged this debt and he must have been aware of the circumstances under which the rokar of the 10th December came into existence or at least had sufficient information to put him upon enquiry as it refers to the previous rokars. I am of opinion that the transaction of the 10th December in itself affords no justification for a charge upon the family property on the ground of antecedent debt. This, however, does not conclude the case. It is necessary to consider how far the original loans consolidated in the rokar of the 10th December can be justified on the ground of legal necessity. There is evidence to show that the mortgagee made exhaustive enquiries upon the evidence supplied him by the mortgagors as to the existence of this and other debts stated to be due, and on referring to the different rokars consolidated under the transaction of the 10th December it appears that the sums borrowed are in almost every case stated to be for meeting necessary expenses or for urgent necessity. In one case the sum of Rs. 500 was advanced to Gajadhar Singh, the defendant No. 3, without any statement as to the purpose for which it was borrowed (Ex. 4 B.B). In another case Rs. 15 was borrowed by Maha Prasad without stating the reason (Ex. 4 M.M) and in a third case Rs. 200 was taken in cash by Maha Prasad without stating the reason (Ex. 4 O.O). The bond in suit recites that the advance was required to enable the mortgagors to repay the dues of creditors and to meet the necessary expenses of the family and no evidence has been called on behalf of the appellants to prove that the debts were not incurred to meet the family necessities. Whilst it is true that the onus of proving such necessity rests upon the respondents one must not lose sight of the fact that they had the assurance of the borrowers that the debts incurred were for family necessity and they made exhaustive enquiries as to the existence of these debts which undoubtedly amounted to a very large sum and even if a few small items out of the total might appear to be doubtful, I do not think we should scrutinize with meticulous care after a lapse of twenty years each small item about which the existence of family necessity is doubtful so as to give the appellants the benefit of the doubt when the enquiries made by the respondents must have shown that the vast bulk of this particular debt appeared to have been incurred for family necessity and was subsequently acknowledged as a joint debt by the four responsible heads of the different branches of the family. I shall refer to this question further when considering the next item.

As to the sum of Rs. 62,736 the antecedent debts incurred by one or other of the different members of the family, this is comprised of over twenty different items including nine of the items set out in the schedule to the bond, namely, those numbered 3 to 8, 12, 15 and 16. The scheduled items together with interest up to the date of payment account for over Rs. 52,100. There can be no doubt that these debts as well as the balance making up the sum of Rs. 62,736 existed and were carrying interest at a much larger rate than that stipulated in the bond. They were incurred sometimes in the name of one of the adult members of the family, frequently in the name of two or three but never apparently of all four. The rokars in each case have been produced and they refer to transactions between the years 1894 and 1896. From these and from the evidence given on behalf of the respondents it appears that far the greater portion of the debts were incurred in connection with the marriage ceremonies of different members of the family and for dwiragaman and upanayan ceremonies. In other cases they were for household expenses and for purposes of cultivation. The household expenses were the ordinary tradesmen's bills for sugar, spices and similar articles including a few household utensils and some cloth. The marriage and other ceremonies account for roughly Rs. 40,000, the household expenses amount to between thirteen and fourteen thousand rupees. There are also certain items for cash borrowed for purposes which are not clearly explained. The latter items in particular have been challenged as not being justified by legal necessity. They come to Rs. 9,335. In so far as the debts incurred for the marriage and other ceremonies and the household expenses are concerned, I think, these may fairly be taken to come under the heading of necessary expenses of the family. It may be asked why in the space of two years it was necessary to incur debts for such purposes amounting to rather more than a year's income, but it must be remembered that since 1883 when the first mortgage bond was executed in order to raise money for litigation in connection with the original acquisition of the estate, this family had always been in debt and was paying large sums periodically for interest on the loans. Between 1894 and 1895, about Rs. 35,000 were paid as interest on the previous bond and the resources of this large family were consequently restricted. The marriage of the younger members had to be provided for and the custom of conducting such ceremonies with some ostenation is a well recognized feature of the social conditions existing in this country. According to Western ideas, it may seem improvident, but Western standards of economy afford no criterion for determining the necessary requirements of an Indian family in the position of the appellants. Their prestige as zamindars of some position demands, and their friends expect, an amount of display in such ceremonies which might appear lavish and unnecessary for people of similar means in Western countries. I do not think that having regard to the drain then existing upon the income of the family which was according to the evidence in round figures about Rs. 40,000 a year, it can be said that these expenses ought to have been met out of the income or that they were in themselves excessive and they are expenses which do not arise every year but only upon occasions when the younger members of the family are of marriageable age.

With regard to the items for which cash was borrowed for purposes not clearly shown by the evidence; these appear from certain rokars which have been produced and marked as exhibits in the case. The exhibits in question are those marked 4u, 4o, 4d, 4r, and 4XX. They were paid off in December 1896 at the time when the bond was executed and the money advanced, and the amount is stated to be Rs. 9,335. It appears from the rokars that there were sums borrowed in two cases by Ram Charan Singh and other, in two cases by Hari Prasad Singh and in one case by Ram Charan Singh alone. The lenders are in some cases dead and the only evidence we have about them is that these sums were borrowed by the members of the family whose names appear on the rokars and who had been in the habit of effecting such loans for family purposes.

Had the mortgage been granted for an advance to pay off these debts alone, it might have been difficult upon this evidence to find that they were in fact justified by family necessity, but it must be remembered that these sums were borrowed about twenty years before the suit was instituted. The original mortgagee is dead as well as others who might have been able to throw some light upon the exact purpose for which the loans were taken Moreover the defendants themselves who admit that they have accounts which might throw some light upon the transactions have not produced these accounts and have given no evidence in support of the contention that there was no legal necessity for the loans. This was a matter within their own special knowledge and the representation made at the time of the loan was that the debts were incurred for necessities of the family, and the evidence shows that bonâ fide enquiries were made at the time by the lender as to the nature and existence of these debts. But the circumstances under which the family found itself at that time must also not be lost sight of. Its history has been dealt with by the learned Subordinate Judge and need not be repeated here. It is the story of a collateral branch of a family living in comparative obscurity and poverty suddenly finding themselves within measurable distance of comparative wealth through the death of the maternal great-grandfather without male issue. Opposition to their claims is made by the alleged adopted son of the maternal ancestor's second wife resulting in litigation and an eventual compromise by which the family secured a substantial share of the estate. This is followed by further litigation to defend the property so acquired against the claims of other relatives of the original holder and still further litigation to get rid of encumbrancers. To find money for the purposes of litigation in the first instance borrowing is resorted to and the family income is largely diverted towards paying interest on the loans which are renewed from time to time and further sums are borrowed for the purposes of maintaining the family. The loans began in 1893 and ended in 1896 when the bond now in suit was executed. At that time in addition to the indebtedness under the previous bonds amounting to over two lakhs of rupees debts had been incurred, the nature of which I have already referred to, of well over a lakh. The great majority of these were debts manifestly falling either within the category of antecedent debts or debts incurred for family necessities and recourse is again had to the money-lender, who, the evidence shows, satisfied himself as to the existence of the debts and their nature after an exhaustive enquiry. He was also assured that the creditors were pressing for payment and that the debts were those of the family for legal necessities. I am satisfied that bonâ fide enquiries were made by the lender and that the enquiries show that in the vast majority of cases the debts were such as to lay the foundation for a valid charge upon the family property. If twenty years later it should appear that in a few instances there is no conclusive proof that the debts were actually incurred for family necessity or with the active participation of all the adult members of the family, still if the circumstances show that the needs of the family were such that it is probable that the money even in those cases were required for family necessities, I do not think we should require absolute proof in every case, but may presume that the lender satisfied himself at the time that the debts were of such a nature as had been represented to him and as appears from the recitals in the bond. In these circumstances, I think, the silence of the defendants as to the nature of these debts is not without significance, and may be taken into account as affording some presumption in favour of the plaintiffs. In the circumstances, I am not prepared to differ from the Subordinate Judge upon this part of the case. I may add that in the previous suit which proved infructuous, no such defence was set up although it would have been easier at that date to have determined by evidence the exact purpose for which these doubtful sums were borrowed.

With regard to the stamp-fee on the bond and the registration-fee, these items are not challenged. The writer's remuneration amounting to Rs. 1,750 which was the same as the stamp duty has been challenged as exorbitant and unnecessary. At first sight this would certainly appear to be so but the uncontradicted evidence shows that it is customary in such cases to pay the writer a fee of not less than the stamp duty on the bond, and I see no reason for differing from the decision arrived at by the learned Subordinate Judge upon this question.

The sixth and last point raised by the appellants relates to that part of the decree whereby the learned Judge allowed interest on the amount of the personal decree and costs in respect thereof at the rate of 6 per cent. per annum, until realization.

It is not very clear why the learned Judge awarded interest only upon the amount of the personal decree and not on the amount of the mortgage decree but there is no cross-appeal on this question. I think there is much to be said for the argument that the Santal Parganas Regulation applies only to the interest to be decreed under the bond and does not limit the powers of a Court, under section 34 of the Civil Procedure Code, to award interest on the decretal amount until realization. But it has been held in this Court in Rani Keshobati Kumri v. Kumar Satya Niranjan Chakravartty, that interest under the Code should not be awarded upon the decretal amount in so far as it includes interest on the principal debt or loan but only upon the amount of the principal debt itself as to do so would contravene the provisions of the Regulation relating to compound interest. The principle underlying this decision applies equally where the amount decreed as interest already equals the sum advanced. Although I have some doubt as to the propriety of the decision mentioned, I am not prepared to differ from the conclusion there arrived at, and I think we should follow that decision.

The result of my judgment is that the appeal is allowed in part and that the decree of the lower Court must be modified in accordance with the above findings.

There will be the usual mortgage decree for the amount of the principal sum advanced as shown below together with a like amount as interest thereon, after, giving credit for the sums already paid in respect of principal and interest. The total sums advanced were Rs. 2,85,903-1-9, of which Rs. 12,000 were re-paid on the 13th January, 1884, leaving a balance of Rs. 3,73,903-1-9. From this must be deducted the sum of Rs. 12,963 disallowed by the Subordinate Judge as not justified by legal necessity for which there will be a personal decree with interest to a like amount after deducting the proportion of interest already paid, as shown below. The total interest paid was Rs. 1,36,352-7-1, but Rs. 400 of this must be allocated to the Rs. 12,000 paid off on the 13th January, 1884, leaving a balance of Rs. 1,35,952-7-1. A difficulty arises as to how much of this should be deducted from the interest payable under the mortgage decree and the interest payable under the personal decree. As the amount of the personal decree is deducted from the cash advance made at the date of the last bond on the 21st December, 1896, it would appear that the interest paid before that date under the previous bonds should be allocated to the previous advances which are included in the mortgage decree. After deducting the Rs. 400 already mentioned, this sum amounts to Rs. 80,704-3-6; the balance paid since that date amounting to Rs. 55,248-3-7 should be deducted rateably from the amount of interest payable under the mortgage decree, and the personal decree, that is to say in the proportion which Rs. 2,60,940 bears to Rs. 12,963.

I see no reason for departing from the ordinary rule as to costs. I think the appellants who have reduced the amount awarded against them from something like 15 lakhs to something like 5 lakhs are entitled to their proportionate costs of this appeal.

Bucknill, J.:— This was an appeal from a decision of the Subordinate Judge of the 1st Court of Bhagalpur given on the 17th June, 1918. The general circumstances which gave rise to the present litigation are of a very simple kind. They present many features which are familiar in the Courts of this and other Provinces; and they raise questions, which, perhaps unfortunately, in the existing state of the law relating to the position of the joint Hindu family, occupy, and must continue to occupy unless and until this branch of Hindu law is further explained by judicial decisions or clarified by litigation, much of the time of the judiciary.

In this case are to be found factors of very usual type; an action brought by the plaintiffs on a mortgage bond purporting to be executed in the plaintiffs' favour by some members of a joint family of Hindus, subject to the Mitakshara Law on their own behalf and as guardians of minors, and entered into for the purpose of giving to the plaintiffs security for large sums of money lent by the plaintiffs to some of the defendants. Again also is to be found the usual defence (which always demands, as the law is at present constituted, laborious investigation) of the suggestion by certain members of the joint defendant family that the debts contracted were not debts of necessity or for the family benefit and cannot be supported by any adaptation of the modern doctrine of antecedent debt. In this particular case there are, however, other special and somewhat peculiar features which raise points of considerable difficulty and interest. It is desirable, therefore, at this stage to give in some slight detail a short summary of the events which gave rise to the present suit.

There are three plaintiffs in this action; the first is the son of one Rai Surya Narayain Sinha Bahadur, whilst the second and third are the grandsons of the same gentleman. There are a large number of defendants, but, so far as is material here, they may be grouped as being the descendants of or deriving their title by purchase from the descendants of one Balbhadra Singh. The second defendant died shortly before this appeal came on for hearing. This ancestor, Balbhadra Singh, left three sons, Ram Charan Singh, Guru Charan Singh, and Maha Prasad Singh, all of whom are now dead; the defendants are substantively their descendants or purchasers therefrom. It is, at the moment, unnecessary to refer closely to the way in which the defendants acquired the property which they owned; it is sufficient merely to mention that it has been referred to in these proceedings under the name of “The Barcope Estate”; it was a valuable property and is said to have brought in a considerable income of between, possibly, Rs. 40,000 and Rs. 50,000 per annum The defendant family, however, never, although no precise allegations of extravagance are now persisted in against any of its members, seems to have been able to live without incurring debt; and, for many years, extending back as far as 1883, there was a long course of dealings between the plaintiffs' predecessor, Rai Surya Narain Sinha Bahadur, and the defendant family. These transactions consisted substantially of a sequence of loans to the defendant family by the plaintiffs' predecessor and their nature is, somewhat unusually fully, recorded in a series of mortgage bonds, most of which show the commonplace features of the adding of accrued interest to the amount secured by the previous bonds coupled with the addition of a further sum of money advanced to the family. The bond which is now being sued upon is dated the 21st December, 1896, and was in favour of Rai Surya Narain Sinha Bahadur, for the sum of Rs. 3,50,000 at 7½ per cent. compoumd interest with yearly rests. It was entered into by Ram Charan Singh and Maha Prasad Singh, two sons of the common ancestor, Balbhadra Singh, by Hari Prasad Smgh and Biswa Nath Singh, two sons of the remaining, and at that time, deceased, son of Balbhadra Singh, whose name, as mentioned above, was Guru Charan Singh; by Gajadhar Singh and Rup Narayan Singh, sons of Ram Charan Singh; by Sasi Bhusan Singh, son of Maha Prasad Singh; by three minors through their father, Hari Prasad Singh and by one minor through his father, Biswa Nath Singh. It may perhaps, be hardly necessary to point out ttrt since the date of this bond numerous other births have taken place in the family which feature accounts partially for the increased number of defendants of whom, however, number 19 to 42, are purchasers or transferees. Defendant No. 18 was once a member of the joint family, but was adopted out of it. It may, perhaps, be convenient here, in view of the fact that they will have to be referred to at a later stage, to give a list of the bonds representing the loans which constituted the transactions between the parties. The first bond (Ex. 3c) was dated the 3rd October, 1883; the amount advanced was Rs. 73,000; and the rate of interest was 12 per cent. compound with yearly rests. The second bond (Ex. 3b) was dated the 20th September, 1888, and was an entirely disconnected transaction; the money was borrowed to meet Government and Settlement expenses and the validity of this transaction is not challenged. It was for Rs. 12,000 at 11 per cent compound interest with yearly rests. The third bond (Ex. 3F) consolidated these two previous loans together with a certain amount of accrued interest. It was dated the 12th May, 1890, and was for Rs. 95,600 at 10 per cent. compound interest with yearly rests. The 4th bond (Ex. 3E) was dated the 29th September, 1891, and was for Rs. 1,67,000 of which Rs. 64,761-1-9 constituted a fresh advance, the remainder representing a renewal of the old loan with such interest as had accrued. It bore compound interest at 9 per cent. with yearly rests. The 5th bond (Ex. I) which is the one upon which action was brought in this case, was, as already mentioned, dated the 21st September, 1896, for a sum of Rs. 3,50,000 of which Rs. 1,36,142 represents a fresh loan, the remainder being, as in the previous case, a renewal of the previous bond. By it the mortgagees hypothecated a large quantity of property in the Santal Parganas and a small quantity in the District of Bhagalpur; it bore compound interest at 7½ per cent. It may be mentioned that quite considerable sums were at different periods paid off by the defendant family by way of interest.

It will be at once observed that it cannot be contended that, the rates of interest charged were of an in any way extravagant description; but it must be mentioned that, at the date of the suit, the claim had reached the large figure of Rs. 11,81,811 and the amount had swollen considerably by the date the suit was heard. Indeed it may also be noted here that the Subordinate Judge decided substantially entirely in favour of the plaintiffs awarding them a sum of some Rs. 15,27,997 as against the family defendants together with a personal decree of some Rs. 44,164-7-6 together with costs it is from this decree that this appeal has now been prosecuted.

The records printed for the purpose of this appeal are so massive that it will probably be advantageous at once to endeavour to set out with precision the points which have been very ably argued on the part of the appellants, i.e, the defendants. They may be summarized thus:—

(1) A question relating to jurisdiction. This arises in the following way. The Barcope Estate is situated in the locality known as the Santal Parganas, an area removed, broadly speaking, from the operation of ordinary law in many respects and governed largely by special Regulations (which have been varied from time to time) known as “the Regulations for the Peace and good Government of the Territory known as the Santal Parganas”. So far as this question of jurisdiction is here material, Regulation No. V contemplated that no suit connected with land should be heard in any civil court other than the special courts provided under the Regulation, so long as the place had not emerged from what is here known as the process of “Settlement,” that is to say, until the completion of the territorial and revenual survey. It is argued here that it is not certain that the area within which the Barcope Estate was situated was actually clear from this embargo; and it may conveniently be pointed out here also that in an earlier action brought by the plaintiffs in 1904 upon the same bond as that now sued upon, the defendant was successful on this selfsame ground.

(2) A question arising as to the amount of interest which can be claimed by the plaintiffs. Here, again, this point arises out of the special arrangements made applicable to the Santal Parganas under the Regulations mentioned above. By Regulation VI, which purports to be directed against usury, there are certain very important limitations laid down prohibiting in various ways the amount of interest which can be claimed within the area in question. It is argued here that these Regulations are applicable in this case; and, indeed, this point was, together with the question of jurisdiction, a subject of considerable discussion in the previous action, to which reference has already been made, when it came before the Judicial Committee of the Privy Council.

(3) A question arising as to whether this suit is not, under certain peculiar circumstances, barred by the operation of the provisions of the Limitation Act. The point arises in this way. The present suit was commenced on the 5th February, 1915; at that time, it is admitted that there was a child in existence, who is said to have been born about 1910, whose name was Sripati Singh. He was the son of Sasi Bhusan Singh and a grandson of Maha Prasad Singh; he was not joined as a party in the proceeding until the 30th Maj, 1916. The plaintiffs state that as soon as they discovered the existence of this child, they took steps for having him joined in proper manner; and, in fact he was at the date given above, put on the record under the order of the Court as defendant No. 16(a). The date upon which payment of the bond was strictly due, was the 14th March, 1903, and it is argued that, as more than twelve years had elapsed from that date before the child was joined, the suit would be barred by the provisions of the Limitation Act on the ground that it was obligatory that he, having an interest in the right of redemption of the mortgage, was a necessary party to the suit.

(4) A question as to the non-existence of legal necessity or family benefit for a large portion of the loan in question. This contention involved before the Subordinate Judge, a very careful consideration of the elements of which the loan was in fact composed; and it has also been the subject of laborious enquiry and research before this Court. In cases such as these, where, in order to find the actual origin of portions, very often small and very often numerous, of what is a large aggregate sum of money, one has to try to trace it back for a great many years; it is frequently almost impossible to deal with each individual item in any very satisfactory manner, and, indeed, it is probably doubtful if it is right or necessary so to do. The Subordinate Judge took the broad view that, in the main, old loans contracted for the purpose of paying off earlier debts of a composite character, should be regarded as carrying their own burden of proof that they fell, roughly speaking, within the confines of what may properly be regarded as legal necessity or family benefit.

(5) A question arising as to how far the provisions of this bond are capable of being enforced against the defendant family under the doctrine of antecedent debt. It is argued here that the doctrine of antecedent debt only applies when the exact relationship of father and son is present. It is suggested that a man, who is a member of a joint Hindu family subject to the Mitakshara Law, cannot in any way bind his nephew. It is freely admitted that some of the debts, which were originally contracted and which purported to be met by their entry into the bond sued on or in connection with the previous bonds, were contracted nominally, sometimes by one, sometimes by another and sometimes by a combination of the heads of the family; and the contention here put forward is that in cases where any particular original debt purported to be contracted by, for example, one member of the family, such a transaction cannot, on the doctrine of antecedent debt, be held to bind the nephews of the person who contracted such a debt, but only to bind his sons.

(6) A question as to the barring of the claim for a personal decree by the provisions of Order II, rule 2, of our Civil Procedure Code.

Before dealing with these points in detail, it is necessary to ascertain what was really the position of the defendant family with regard to their possession of the property in question; for it has been seriously suggested that they were not a joint family at all so far as this property is concerned. The facts, however, with regard to this matter are not complicated.

A certain Raja Ajit Barham was the proprietor of the Barcope property, and at his death left two widows, the Ranees Dilabati and Bhulanbati, who succeeded to the estate. Upon the decease of the Rani Dilabati, Rani Bhulanbati came into possession of the whole property, and on her death, the Court of Wards took possession of it on behalf of one Babu Chunder Deyal Barham, a son of Mongal Barham, on the ground that it was alleged that he had been adopted by the Rani Bhulanbati as a son to her deceased husband. Now, Ram Charan Singh, Guru Charan Singh and Maha Prasad Singh, the three sons of Balbhadra Singh, had as their mother one Mussammat Parbati, who was a daughter of Raja Ajit Barham, and they brought a suit for recovery of the estate from the Court of Wards, joining in their action the sons of another daughter of Raja Ajit Barham. The suit was compromised, Guru Charan, Ram Charan and Maha Prasad Singh obtained 7-annas, 17½ gundas, share of the Barcope Raj, whilst Chandra Dayal Barham obtained a 4-annas share. It would appear that in this litigation these three men incurred legal expenses in order to pay which they had to borrow. [See Appovier v. Rama Subba Aiyan and Mohabeer Koer v. Joobha Singh].

Subsequent to this compromise these three men became involved in another piece of litigation, one Batan Barham and other relatives of the deceased Raja Ajit Barham having unsuccessfully brought a suit against them and others for the possession of the Raj; and here again further legal expenses were necessarily incurred. I think that there can be no doubt that the property having been thus acquired through their mother, it could not be regarded, when it reached the hands of Balbhadra Singh's three sons, as their joint ancestral family property; [Venkayyamma Garu v. Venhtaramanayyamma Bahadur Garu, Atar Singh v. Thakur Singh and Bishwanath Prasad Sahu v. Gangadhar Prasad(5)]; but I think that from an examination of what these men themselves stated in various bonds into which they entered that, as the Subordinate Judge has found, they undoubtedly elected to treat the estate, which they had thus acquired, as joint family property. In the first bond of 1883 which was entered into with the plaintiffs' predecessor by Ram Charan Singh for himself and as karta of the joint family for his minor sons. Gajadhar Singh and Rup Narayan Singh, and for his nephew, the son of Guru Charan Singh, and by Hari Prasad Singh for himself and as guardian of his brother, Biswanath Singh, and on behalf of his own minor son, Lakhi Prasad Singh, and by Maha Prasad Singh for himself, and as guardian of his son, Sasi Bhusan Singh, the facts as to the way in which they had acquired the property are very fully set out; and it is there stated that the properties and family of the deceased lady Mussammat Parbati, are joint; in clause 3 of that bond it is stated that, although the properties they acquired were not the properties, of their father and that although, in consequence, the sons, during the lifetime of Ram Charan Singh and Maha Prasad Singh, had no interest therein, yet all the debts were in fact contracted for valid and legal necessities. In the second bond, entered into in 1888, we find it is executed by Ram Charan Singh in his own right and as karta of the joint family, on behalf of his minor son and on behalf of his nephew, Biswanath Singh, by Hari Prasad Singh for himself, and as guardian of his brother, Biswa Nath Singh, and also on behalf of his own son, and by Maha Prasad Singh, both for himself and as guardian of his minor son; and they mortgaged their whole share in their estate declaring themselves to be jointly and severally liable for the entire debt. In the third bond of 1890, executed by Ram Charan Singh, for himself and his son, Rup Narayan, by Hari Prasad Singh for himself and his son, by Biswa Nath Singh, by Maha Prasad Singh for himself and his own son, and by Gajadhar Singh, son of Ram Charan Singh, they again declared themselves to be jointly and severally liable in mortgaging their zamindari property. In the 4th bond of 1891, executed again by Ram Charan Singh for himself and his minor son, Rup Narayan Singh, by Hari Prasad Singh for himself and his two minor sons, by Biswanath Singh, by Maha Prasad Singh for himself and his minor son, and by Gajadhar Prasad Singh, they again mortgaged their zamindari property and for the debt they declared themselves to be jointly and severally liable; whilst in the bond now sued upon entered into by Ram Charan Singh, by Maha Prasad Singh, by Hari Prasad Singh, by Biswanath Singh, by Gajadhar Prasad Singh, by Rup Narayan Singh, by Sasi Bhutan Singh, Lakhi Prasad Singh, Bishen Prasad Singh and Dwarka Prasad Singh, under the guardianship of their father; Hari Prasad Singh, and by Tilokenath Singh, under the guardianship of his father, Biswanath Singh, there is an express declaration that all the executants, are members of a joint Hindu family; here they again mortgaged their properties and declared themselves to be jointly and severally liable for the debt, and in clause 9, add—

“We have not transferred the same in any way before this and that we have absolute right thereto.”

I think that it must be taken that for the purpose of this suit it is quite clear that the property in question must be regarded as joint family property and subject to the appropriate incidences of Hindu Law attaching thereto.

I now propose to endeavour to deal with the question of jurisdiction. This suit was instituted in the Court at Bhagalpur, which is in this Province. The properties which were mortgaged by the plaintiffs' predecessor to the defendants were very largely situated in the Santal Parganas District and only a small portion lay within the District of Bhagalpur. Under Regulation V, sub-section (1), of the Santal Parganas Regulations, it is laid down that—

“From the date on which under section 9”, (to which reference will be made presently) “of the Regulation, the Lieutenant-Governor declares by a notification in the Calcutta Gazette, that a settlement shall be made of a whole or any part of the Santhal Parganas until the date on which such settlement is declared, by a like modification, to have been completed, no suit shall be in any Civil Court established under the Bengal, Agra and Assam Civil Courts Act of 1887, in regard to—

(a) any land or any interest in, or arising out of land, or

(b) the rent of the profits of any land, or

(c) any village headship or other office connected with any land, in the area covered by such first mentioned notification; nor shall any Civil Court proceed with the hearing of any such suit which may be pending before it”.

Whilst by sub-section (2) it is enacted that—

“Between the dates referred to in sub-section (1), all suits of the nature therein described shall be filed before or transferred to an officer appointed by the Lieutenant-Governor under section 2 of the Santal Parganas Act, 1855, or section 10 of this Regulation according as the Lieutenant-Governor may from time to time direct; and such officer shall hear and, even though during the hearing the settlement may be declared to have been completed, determine them”.

Section 9 lays down that—

“The Lieutenant-Governor may from time to time, by, notification in the Calcutta Gazette, declare that a settlement shall be made of the whole or any part of the Santhal Parganas for the purpose of ascertaining and recording the various interests and rights in the land”.

It is unnecessary to consider here what is the precise meaning of this section for the matter has already been dealt with by the Judicial Committee of the Privy Council, as I have already had occasion to mention, in a case brought in connection with this bond now sued upon by and against substantially the same parties in the year 1904, being decided, however, in the Privy Council in 1914 [Maha Prasad Singh v. Ramani Mohan Singh]. It is sufficient to say here that it was held in that case that although it appeared that there had been a notification declaring that a settlement of the Santal Parganas was to take place, yet as no notification had issued that the settlement had been completed, the court at Bhagalpur had no jurisdiction to entertain the suit. It is, therefore, unnecessary for me to enter upon any close examination as to how it comes about that the Santal Parganas, now falling within the Province of Bihar and Orissa, are amenable to the special Regulation, which were in existence prior to the separation of this province from that of Bengal or as to why suits, even of such large amounts as the one in question, were, under the circumstances which existed when the case dealt with by the Privy Council was instituted, still incapable of being tried other than by the special tribunals instituted under the Regulations; and it is common ground that it is sufficient here merely to ascertain whether anything has happened since the date of the institution of the prior suit which indicates that settlement of such part of the Santal Parganas, as includes Barcope, has since been completed. If that settlement has not been completed, it is obvious that the Court at Bhagalpur could not have entertained this suit; if, however, at has been satisfactorily shown or a suitable inference can be drawn that such settlement is now over, the question of jurisdiction must obviously be decided in favour of the plaintiffs. The Subordinate Judge has found against the defendants on this point. What really happened appears to have been that the; Government many years ago declared a settlement of, apparently, the whole of the Santal Parganas which was commenced and carried on by Mr. Woods from 1873 to 1879; there is no definite evidence to indicate that this settlement was ever finally completed and no notification of completion has been discovered. It may have been that it was too great a task at that time and that it was in fact never completed or it may have been that a notification of a partial completion or of a whole completion may have been in existence, but has not been discovered; at any rate, what is certain is that, at later dates, the Government began to deal piece-meal with comparatively small areas of these Parganas notifying for settlement various places from time to time the work was carried out by different persons at different periods, notably by Mr. Craven in 1892, Mr. H. McPherson between 1903 and 1905 and Mr. Allanson between 1906 and 1908. It will be found that the Barcope Estate was dealt with in these settlements to which I have referred. The Subordinate Judge in dealing with this question says:—

“The plaintiffs have shown that though the settlement made by Mr. Woods, was completed, but not publi-hed, the Local Government brought the portion of Barcope under settlement from time to time (vide the copies of the Calcutta Gazette, filed in this respect on behalf of the plaintiffs) and finally published it after its completion. It is, therefore, clear that the Local Government has superseded the settlement completed by Mr. Woods and has not allowed it to exist in the eyes of law. I, therefore, reject the defendants, contention as frivolous”.

I think that this is by no means an improper expression of what the real situation is. In 1889 a notification, dated the 29th January of that year, was issued by the Government of Bengal declaring that a settlement should be made of the villages comprised in certain scheduled estates among which was Tappa Barcope (Ex. 28). On the 10th September of the same year, however, this notification was amended and a corrected list of areas substituted. This included Taluk Barcope, or Tappa Barcope. On the 1st July; 1892, (Ex. 27) we find that Mr. Craven, the Settlement Officer, submits his final report upon this settlement of the Taluks, which included the Taluk Barcope (Ex. 27), and on the 13th March, 1893, (Ex. 28b) appears in a notification by the Government of Bengal, declaring that Mr. Craven's settlement had been concluded and completed; and in the list given is to be found the Barcope Tappa. It will, however, be seen from Mr. Craven's report that the settlement proceedings were not of a precisely exhaustive character, and they were in part apparently completed later. On the 14th October, 1903, there is a notification (Ex. 28-C) of the list of areas in which settlement has been completed which includes three villages in Tappa Barcope. Again on the 29th October, 1906, there is another notification (Ex. 28-D) declaring that there should be a revision, of the settlement made in the case of certain areas which included the zamindari of Barcope, Tauzi No. 481. On the 16th September, 1907, there is a further notification (Ex. 28-E) that a settlement; thereof has now been completed and concluded. The list of places where settlement has been so effected includes a large number of places in Barcope, whilst on the 12th February, 1910, a further notification (Ex. 28-F) of conclusion of settlement includes the estate of Barcope, Tauzi No. 481.

Now, some endeavour has been made by counsel for the appellants to show that if one examines the reports of Mr. McPherson and Mr. Allanson and the number of villages which are there mentioned, one may find certain discrepancies in the number, and that it is, therefore, not clear that all the property has been duly and completely settled. I myself, however, think that this endeavour has been a failure. I consider that there was on the face of the documents, to which I have referred, a very clear indication that the settlement of the whole of the Barcope estate was in fact completed, and although it may be that three is some little difficulty in following through and identifying each village, (the names of which may be differently spelled at different times) and although there may be some further difficulty in reconciling exactly the numbers of villages which are sometimes referred to as having lain within the confines of the estate, I do not think that there is any satisfactory evidence to show that anything was left out of the settlement. Under these circumstances it would appear that, since the institution of the last suit, the settlement has been concluded, and, consequently, that the difficulty, which stood in the plaintiffs' way in the previous case as to the Court at Bhagalpur not having jurisdiction to deal with the matter, no longer, now applies. The following cases are of interest in connection with this point:—

Dungaram Marwary v. Rajkishore Deo and Shah Deo Narain Deo v. Kusum Kumari.

I now pass to the second and important question of interest.

section 6 of Regulation III of 1872 of the Santal Parganas, lays down the following order:

All Courts having jurisdiction in the Santal Parganas shall observe the following rules relating to usury, namely:—

(a) interest on any debt or liability for a period exceeding one year shall not be decreed at a higher rate than two per cent. per mensem, notwithstanding any agreement to the contrary, and no compound interest arising from any intermediate adjustment of account shall be decreed:

(b) the total interest decreed on any loan or debt shall never exceed one-fourth of the principal sum, if the period be not more than one year, and shall not in any other case exceed the principal of the original debt or loan”.

We get an Explanation and Illustration which are both such salient features of Indian codified legislation and which, as is sometimes the case, although intended to be of an explanatory character, are so worded as to give rise to no little confusion. The Explanation and Illustration which were added in 1893, read thus:—

“Explanation.—The expression ‘intermediate adjustment of account’ in clause (a) of this section means any adjustment of account which in not final, and includes the renewal of an existing claim by bond, decree or otherwise when, without the passing of fresh consideration, the original claim is increased by such renewal.”

“Illustration.—A bond is given for Rs. 75, of which Rs. 25 are interest. Unless the obligee can prove to the satisfaction of the Court that he gave such consideration for the bond as rendered the transaction fair and equitable, of the Rs. 75, Rs. 60 only will bear interest, and the limit of the claim on the bond will be Rs. 100.”

The section is directed, according also to the side note, against usurious practices; and, of course, the object of all this peculiar legislation of very paternal character which is operative in the district of the Santal Parganas, was and is to protect the inhabitants there, who were of a simple type and backward culture, against what might appear to be the imposition of unscrupulous and adroit persons who might take advantage of processes available to them under the ordinary law. In Act No. XXXVII of 1855, we see in the preamble that it is stated that the ordinary law in force in the Presidency of Bengal is not regarded as being adaptable to the uncivilized race of people called Santals, and in the Regulation, to which reference has already been made, one finds numerous instances in which it is endeavoured to safeguard the interests of these people of early culture. It is no doubt rather hard to reconcile the undertaking of great transactions in connection with these ideas of the protection of a primitive race, but whilst, in the ordinary way, one would have contemplated, as no doubt was the case, affairs only of small degree, the fact remains that, as the settlement of the district proceeded, it was discovered that there existed persons possessed of large and valuable territorial rights. In the case now before us, we have, exhibited, individuals blessed with a large income and borrowing great sums of money; but there is nothing to indicate that the Regulation is other than of general application to all affairs of whatever magnitude conducted in the district. The broad contention which is put forward here on behalf of the appellants, is that the Regulation which has been quoted above must here apply. The Subordinate Judge, however, did not think that the appellants could in any way take advantage of the provisions of this section VI of the Regulation. In the issues which were raised for his consideration, issue No. 11 was:—

“Are the plaintiffs entitled to compound interest or interest exceeding the amount of the principal, keeping in view, section 6 of Regulation III of 1872?”

In dealing with this issue, the Subordinate Judge writes in his decision:—

“The plaintiffs have successfully shown that the father of the plaintiff No. 1 lent the executants of the bond in suit, Rs. 8,50,000 out of which Rs. 1,36,142 were paid to them in cash, the rest having been applied to the payment of their previous debts due to him, and that when he did so, the terms of the 3rd and 4th bonds which were executed in his favour did not expire and that he not only allowed the bonds to be renewed but also reduced the rate of interest thereof the result of Which has been that there has been a gain of over Rs. 12,000 to the executants of the bond in suit. It is, therefore, clear that the transaction under the bond, has been fair and equitable within the meaning of the Illustration attached to section 6 of Regulation III of 1872. It appears that this question was not under controversy in the suit, before the Judicial Committee, and has not been judicially considered. This being so, I find that the plaintiffs are also entitled to the interest claimed Within the meaning of the Illustration.”

The Subordinate Judge did not think that there were any intermediate adjustments of account within the meaning of the Explanation attached to the section and considered that the plaintiffs had a right to recover the interest as claimed; and he, therefore, found this issue against the defendants.

I greatly doubt whether the Subordinate Judge is here correct.

The exact proposition which has been put forward by counsel on behalf of the appellants is divisible into three definite suggestions: firstly, that the amount of interest which can be obtained by the plaintiffs cannot exceed the actual principal sums advanced; secondly, that the amount of interest which has been in fact paid, must be deducted from that amount of money which, payable as interest, equals the amount of the principal loan; and, thirdly, that interest cannot be granted on the decretal sum for any period after the date of the judgment if it would result in the amount thereby recoverable exceeding the total of the principal actually advanced. We are fortunately, I think, not altogether without authority on part of these questions. In the case to which reference has been made above in connection with the consideration of the question of jurisdiction [Maha Prasad Singh v. Ramani Mohan Singh] the general point has, to my mind, been the subject of what amounts to a judicial decision. In the judgment of their Lordships, delivered by Lord Moulton, it is stated that “their Lordships are also of opinion that, apart from the question of jurisdiction, any Court dealing with the subject-matter of the suit would be bound to give full force and effect to the provisions of section 6 of the Santal Parganas Settlement Regulation, 1872, relating to usury, and therefore, to have refused to decree any compound interest arising from any intermediate adjustment of interest, or an amount of total interest exceeding the principal of the original debt or loan”.

Their Lordships also, in my view, disposed of the question (advanced here but not very strongly urged) as to how far this section of the Regulation was observable by courts other than those which were physically situated in the district. Lord Moulton states, after quoting in extenso section 6 of the Regulation: “The respondents sought to establish that the phrase ‘all Courts having jurisdiction in the Santal Parganas’ meant Courts situated in the Santal Parganas, and dealing with matters purely local. Their Lordships cannot accept this interpretation. The words are definite and precise, and must be applied in their natural signification. It was urged that, taken literally, they would apply to everything done by a Court having jurisdiction in the Santal Parganas, whether the matter related to those districts or not, inasmuch as the language used makes the application of the enactment depend on the Court and not on the matter in dispute. But this is to ignore the fact that the Regulation is only applicable to the Santal Parganas, and that, therefore, it would not apply to Courts having jurisdiction wider than these local limits when such Courts were dealing with matters relating solely to other parts of India. The enactment therefore, applies to Courts having jurisdiction in the Santal Parganas, and acting under and by virtue of such jurisdiction”.

I am bound to say that I think that Lord Moulton's dicta in the earlier case relieve this Court from considering a question which, I confess, presents to me very considerable difficulty. Here there lie a series of bonds; the amount of what one may perhaps term the original debt, (that is to say the actual fresh cash advanced) is not in dispute, but, with the exception of the second bond of 1886, which was, as I have mentioned before, an independent transaction, each of the five bonds, which were consolidated eventually in the mortgage bond which is now the subject of this suit, brought to itself an accumulation of interest coupled with an addition of a new advance; and the accumulated interest was added to the old capital and with the fresh advance forms the aggregate sum for which the new bond is executed. I cannot but imagine that these proceedings constitute what I may term in the phraseology of the Regulation “intermediate adjustments” indeed I am not all sure that each pause in compound interest, represented by, what is known as the “yearly rest “, is not also an intermediate adjustment, and I am quite prepared to regard them as such. For these reasons, I am afraid, I must hold that the plaintiffs cannot recover on their decree a sum in excess of that which was actually advanced to them in cash which, I understand, amounts in all to the considerable sum of about Rs. 2,85,000.

The second suggestion witch is put forward on behalf of the appellants is that what has been in fact paid by way of interest must be deducted from the amount of interest to which the plaintiffs are restricted under the provisions of the section of the Regulation to which reference has been made. I cannot but think that this contention is sound; for, if any really effective meaning is to be given to the restrictive character of the section of the Regulation under consideration, any other decision might result in absurdity; for example, in the suppositious event of a borrower having paid to his lender a very large quantity of interest, he might yet be liable under any construction of the Regulation other than that which, I think, should be given to it, to pay further accumulated interest which might amount, together with what he had already paid, to far more than the aggregate of the original sum lent; and this would be a result which would, in my opinion, be wholly inimical to the purview of this section 6 of the Regulation. I, therefore, have come to the conclusion that the amount of interest already paid must be deducted from the total sum claimed by the plaintiffs by way of interest. In this particular case the accumulations of interest are so great that they far exceed the original amounts from time to time lent and so the figure due is a matter of simple calculation.

The third suggestion made by the appellant is that no interest can be granted on the sum actually decreed after the date of judgment, if, at any rate, that would result in the amount so recoverable exceeding the total of the principal actually advanced. Now in this Court, in the case of Rani Keshobati Kumari v. Kumar Satya Niranjan Chakraverty it has been in effect held that the incidents of section 6 of the Regulation pursue the decretal sum; in this decision by Roe and Courts, JJ., it was laid down that interest subsequent to the decree must be limited to interest on the principal advanced and the costs of the suit. If thus the operation of section 6 of the Regulation is thus, after the decree, applicable to the amount decreed, it must logically follow, if that view is correct, that when the interest accruing after the decree amounts, together with the interest already paid before or awarded by the decree, to more than the principal, it must stop: or, if, as in this case, the amount of interest already paid prior to and awarded by the decree equals the principal, no more can accrue after the decree. Had it not been for this decision, with this proposition I am not sure that I should have been content to agree. I should have felt inclined to think that when judgment has been given for a specific amount and for the right amount, interest at the usual judicial rate follows as a matter of course; that the matter no longer lies within the embargo of the Santal Parganas Regulation, but follows the normal course, and, that, even though by accumulation of interest after judgment, the amount ultimately recoverable by way of interest may in fact exceed the total amount of the principal actually advanced, the position thus achieved is a regular One. In connection with this question of interest one may refer to the following cases: [Sharna Charan Misser v. Chuni Lal Marwari; Ram Charan Marwari v. Rani Keshobati Kumari; Ramjiban Saha v. Dhiku Singh; Maha Prasad Singh v. Ramani Mohan Singh; Atikulla Munshi v. Azimuddin Haji; In re Chiranjib Lal Chowbey v. Musammat Doultea(6); and Rani Keshobati Kumari v. Kumar Satya Niranjan Chakravarty(7)]. Having now dealt with the question of interest, I pass to the third point, namely, as to whether the suit is affected by the Limitation Act.

The argument which is put forward on behalf of the appellants in connection with this point may be explained in the following manner: The bond, upon which this action is now brought, was dated the 21st December, 1896, and it is common ground that the right of action accrued on the 14th March, 1903. The last payment of interest was in fact made on 16th March, 1902. The first suit was commenced on the 20th June, 1904; it was dealt with in the Court of first instance on 12th February, 1906, and was finally decided by the Judicial Committee of the Privy Council on the 19th May, 1914. The present action was started on the 5th February, 1915. It is admitted that, about 1910,. there was born to Sasi Bhusan Singh a son, whose name is Sripati Singh, and that this child was not joined as a party to these proceedings until the 30th May, 1916, when he was added as defendant 16(a) by the Court's order. It is contended by the appellants that under the provisions of Order XXXIV, rule 1, Code of Civil Procedure, which reads:

“Subject to the provisions of this Code, all persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any suit relating to the mortgage”,

this Sripati Singh was a necessary party in the suit; and, that as he was not joined until after the expiration of twelve years from the date when the right of action accrued, the suit must fail. [See Mussammat Nanomi Babuasin v. Modun Mohun, Bholanath Khettry v. Kartick Kissin Das Khettry, Ajodhya Roy v. Hardwar Roy, Chuttan Lal v. Kallu, Tulshi Ram v. Babu, Gendan Lal v. Babu Ram, Shiam Sundder Lal v. Buddhu Lal, Debi Prasad Sahi v. Dharamjit Narayan Singh(8), Girwar Narain Mahton v. Mussammat Makbunessa(9), Jowala Prasad v. Maharaj Pratap Udai Nath Sath Deo(10), Ranjit Prasad Tewari v. Ramjatan Pande(11), Lachman Prasad v. Sarnian Singh(12), Bishwanath Prasad Sahu v. Gajadhar Prasad(13), Budhmal Keval Chand v. Ramavaled Yesu Sangre(14)].

It is agreed that the period of limitation applicable in this case is that of twelve years and it is also common ground that the child Sripati Singh is one of that class of persons contemplated by the provisions of Order XXXIV, rule 1. To the argument adduced by the appellants, the respondents put forward several suggested answers. In the first place, they say that the provisions of Order XXXIV, rule 1, are not such as necessarily entail the failure of a suit if a person who ought to be a party is not in fact joined but that the only result should be that as against such individual the decree in the suit would not be binding. This point raises a question which is by no means free from difficulty; and with it too is involved the point as to whether the omission to join Sripati Singh in this case was an act of negligence or not. It is noticeable that the provisions of Order XXXIV, rule 1, reproduced with certain alterations those of section 85 of the Transfer of Property Act, No. IV of 1882. This ran as follows:—

“Subject to the provisions of the Code of Civil Procedure, section 437 (now Order XXXIV, rule 1) all persons having an interest in the property comprised in a mortgage must be joined as parties to any suit under this Chapter relating to such mortgage; provided that the plaintiff had notice of such interest.”

It will be observed at once that this proviso, as to the plaintiff having some notice of the interest of the individual who is not joined as a party to the suit, does not find place in the phraseology of Order XXXIV, rule 1. In this particular case the respondents alleged that, owing to the fact that this Sripati Singh did not reside with his parents, they were not aware of his existence until shortly before they actually caused him to be added as a party; and the Subordinate Judge has accepted this evidence; a conclusion with which I see no ground for disagreeing. He thinks that although the proviso as to notice which existed in section 85 of the Transfer of Property Act, 1882, is omitted from the provisions of Order XXXIV, rule 1, it would be altogether unreasonable to suggest that where a necessary party has been, not through negligence but under circumstances which are properly explicable, omitted from being made a party to a suit, such non-joinder would necessarily be a fatal bar to the progress of the action. There is, I must confess, much to be said in favour of this view; I take it that the principle which must underlie the idea that where there is a non-joinder of necessary parties the suit must fail, must be that it is undesirable and contrary to public policy that the Courts should expend their time and energies in dealing with matters, the judgments upon which might, because they would not be binding upon necessary parties not joined, be infructuous or materially incapable of effective in or cement. There are obviously in the class of case to which this suit belongs, very considerable difficulties in the way of a plaintiff, who really desires to know who are, and to join those who are, necessary parties to his suit; for in a joint Hindu family, often composed of many adult members, there are, and during lengthy periods over which litigation of this character is drawn up must naturally be, persons who from time to time have children; all of whom, presumably on their birth, acquire at once some kind of interest in the joint family property. It seems to me to be expecting almost too much to suggest that it is always possible for a plaintiff to become acquainted immediately with the occurrence of such births; and the facts that they may not be so acquainted and that the defendants do not intimate the birth of another individual, who has an interest in the subject-matter of the action, should not; I think, be capable of being seized upon as an opportunity to the defendants, for, perchance, availing themselves, owing to the non-joinder of such a child, of the highly technical provisions of the Limitation Act. [See Kundan Lal v. Faqir Chand, Ragho Ram Singh v. Rajani Kanta Banerjee and Raghunandan Singh v. Parmeshwar Dayal Singh].

However, in this case, there are other contentions on behalf of the respondents, which are, perhaps, of more general value to them. In the first place, they call into aid the provisions of section 14 of the Limitation Act, No. IX of 1908. Sub-section (1) of section 14 reads thus:

“In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it”.

There was placed before us a good deal of technical argument as to the precise construction of this section. [See Ali Saheb v. Kaji Ahmad, Bhogi Lal v. Amrit Lal, Sunder Lal v. Chhitarmal and Chuni Lal Hari Lal v. Bai Mani]. It must be remembered that the first suit was commenced on the 20th June, 1904. It appears to me that it was clearly based upon the same cause of action and was certainly between substantially the same parties, allowance being made for devolution or transmission of interest; there is also no doubt that it was on a question of jurisdiction that the suit could not be entertained, nor is there any controversy that the plaintiffs' predecessor was prosecuting that suit bonâ fide and with diligence. Under these circumstances, therefore. I am of the opinion that the time under the Limitation Act did not begin to run against the respondents until after the decision in 1914 by the Judicial Committee of the Privy Council.

There is a further point which is raised by the respondents, which is of some importance and upon which I think it is desirable that I should express my view. It is that even though the name of Sripati Singh was placed upon the record after the expiration of the period prescribed by the Limitation Act it was not in fact necessary that he should be joined at all, he being sufficiently represented by the many adult members of the joint family, who were already joined as parties to the suit. The Subordinate Judge considers that Sripati Singh was amply represented in the suit by his father until the date when he was joined. I am not prepared to subscribe exactly to the conclusion which the Subordinate Judge has come; for it must be borne in mind that the interest of Sripati Singh was not the same as that of his father, but, on the contrary opposed to that of his parent. [See Ajodhya Roy v. Hardwar Roy, Bal Kishan Lal v. Topeswar Singh, Hori Lal v. Munman Kunwar and Rambijan Saha v. Dhiku Singh]. On the other hand, there were persons on the record with whose interests those of Sripati were identical and these persons may, I think, well be regarded as forming a class of which Sripati Singh was one and as for all practical purposes representing him adequately. [Vide Sheo Shankar Ram v. Juddo Kumwar]. For the above reasons, therefore, I have come to the conclusion that the arguments adduced in connection with limitation by the appellants must fail. I now pass to the fourth point which has engaged our attention for a very lengthy period [See Hanoomanpersand Panday v. Mussammat Baboee Munraj Koonweree, Sinnachami v. V.A.R Ramsamy Chettiar, Mussammat Dhanvanta v. Banarsi Lal, Ravaneshwar Prasad Singh v. Chandi Prasad Singh, Banga Chandra Bhur Biswas v. Jagat Kishore Acharjya Choudhuri, Mandil Das v. Meghnarain Dubey, T.S Murugesam Pillay v. Manickavasura Desika Onana Sambandha Pandara Sannadhi, Ram Bahadur v. Jager Nath Prasad and Kalika Nand Singh v. Shiva Nandari Singh (14)].

This question is as to the non-existence of any legal necessity for a portion of the loan in question. Very laborious efforts have been made to trace back to their origin the different sums of money of which it is alleged that this loan of Rs. 3,50,000 was composed. The Subordinate Judge has gone into this question in great detail. He has arrived at the conclusion, after a careful examination, that, whilst in certain instances too great a period of time has elapsed for the plaintiffs indubitably to show that the debts incurred were for family necessity, yet, in the main, the material evidence adduced shows that the bulk of the purposes for which money was borrowed from the plaintiffs was undoubtedly such as would be regarded as being for legal necessity or family benefits and that proper enquiry was made there anent; and, on this basis, he decides substantially in favour of the plaintiffs with the exception of excluding a small sum of about Rs. 12,000 for which he only gives a personal decree. I think that the Subordinate Judge has taken, on the whole, a very proper view of the position. The loan contracted under the fifth bond was, as I have said, for Rs. 3,50,000. The way in which this sum is made up is detailed in the first schedule of the bond; and it will be seen from that Rs. 2,13,858 were appropriated towards, what is in substance, a renewal of the fourth bond, both in respect of the capital and the interest which had accrued thereon; whilst with regard to the remaining sum of Rs. 1,36,142, that represented a variety of debts which purported to have been incurred by the adult members or some of them of the appellant family for various purposes. It is a curious fact which has markedly engaged my attention, to observe the method, in which throughout the whole course of this long stretching series of borrowings, sometimes all, sometimes some and sometimes one only of the adult members of the family incurred debts; (that is to say, signed documents of indebtedness for many kinds of different purposes); how these debts are apparently always regarded by the other adult members of the family as having been incurred on behalf of the family and how those adult members of the joint family who had not participated in the actual execution of individual documents of indebtedness have been invariably prepared to shoulder the burden as a, common one, as is seen by the inclusion of all such in the series of bonds of which mention has already been made; and, in particular, in the list of debts annexed to the bond now sued upon, included in the sum of Rs. 1,36,142 (which is the fresh money advanced by the plaintiffs to the defendants under the fifth bond, that is to say, the bond in suit) we find, in exemplification of what I have just stated, that some of the debts, to which this new money is appropriated, are evidenced by documents of indebtedness signed in some cases by four, in some cases by three, and in some cases by one of the adult members of the defendant family. Similarly too, it will be observed that the purposes for which these debts (embracing the new loan in the fifth bond) purported to have been contracted, cover a wide range. I do not propose to deal with all these debts in any great detail, but I think that it is necessary that I should refer to them shortly. The first is a debt of Rs. 7,000; it was executed by Ram Charan Singh, Maha Prasad Singh, Hari Prasad Singh and Biswanath Singh, in favour of one Rheo Sbanker Sahay and under it Rs. 7,000 are borrowed for the purpose of performing the marriage ceremonies of the borrowers' sons. There can be no question but that this is one of the classes of debts which fall within the definition of such as are capable of being regarded as binding upon the joint family property under the doctrine of legal necessity and of family benefit, and, indeed, this item is conceded by the appellants as being admissible and incapable of being seriously disputed.

The second item in the schedule is for a debt of Rs. 2,000 borrowed from one Shankar Sahay under a document signed by Hari Prasad Singh alone. It is stated in this document that the debt is incurred “to meet my necessary expenses;” and, in the evidence of one Jagat Lal Misser, who was in the service of the lender, we are told that the debt was incurred to pay the cost of presents on the occasion of the marriages of certain named members of the defendant family. Here again it would seem that, if this story is true, and there seems no reason for doubting it, this was a debt which cannot well be challenged.

The third item in the schedule is a debt of Rs. 2,000. It is evidenced by an acknowledgment of indebtedness signed by Ramcharan Singh, Maha Prasad Singh and Hari Prasad Singh, in favour of one him at Ram Marwari. It does not, on its face, state for what purpose the money was borrowed, but, in the evidence of one Jagroop Rai, who was a muharrir in the service of Hari Prasad Singh, it is sworn that the sum was borrowed in order to pay certain expenses which the three signatories incurred on the occasions of certain marriages of their children whose names are given. Here, again, if this is true, and there seems no reason to doubt the story, this is another case of legal necessity and of family benefit.

The fourth debt in the schedule is one for Rs. 6,000. It is evidenced by a roka executed by Ram Charan Singh, Maha Prasad Singh and Hari Prasad Singh in favour of Himat Ram Marwari. The document itself does not say for what purpose the debt was contracted, but, in the evidence of Jagroop Rai again, we find it stated that the money was borrowed in order to meet the cost of the ceremony known as dwiragaman of the wives of the young men and of the young women members of the defendant family who had recently been married. It has been held in Churaman Sahu v. Gopi Sahu that the cost of the performance of this ceremony is an expense legitimately falling within the category of those debts which may be classed as of legal necessity or family benefit; and again it is difficult to see bow this claim can be successfully opposed.

The fifth item represents Rs. 5,000 borrowed from two persons, named Sri Durga Bhagat and Sri Ram Khelawan Bhagat, and is evidenced by a roka executed by Ram Charan Singh, Maha Prasad Singh and Hari Prasad Singh. It does not state, on the face of the document, for what purpose the money was taken, and both of the lenders are dead; nor is there any direct evidence apparently that this cash was taken for purposes of legal necessity or family benefit.

The same may be said with regard to the sixth item in the schedule which represents a sum of Rs. 1,000 borrowed from the same people on the same day by a document signed by Hari Prasad Singh alone.

The seventh item shows a sum of Rs. 2,400 borrowed from two persons, named Sri Ram Lakhan Bhagat and Sri Jiwan Bhagat; the roka is signed by Ram Charan Singh, Maha Prasad Singh and Hari Prasad Singh. Nothing is said again as to the purpose for which this amount was obtained, and, so far as the oral evidence goes, we only get the facts of the transaction and of its subsequent satisfaction.

The eighth item is again for the sum of Rs. 5,000. This seems to have been a loan by one Debi Prasad Jha and to have been evidenced by a roka signed by Ram Charan Singh, Maha Prasad Singh, Hari Prasad. Singh and Biswanath. On the document it is merely stated that Rs. 1,500 were due in connection with a former roka hundi to the lender whilst a further sum of Rs. 3,500 was being borrowed by the borrowers for meeting necessary expenses. There is, however, a certain amount of oral evidence which indicates the purposes for which this money was actually borrowed. In the first place, one witness called Gajadhar Jha, who was a nephew of the lender, (who is now dead) and who had two other uncles named Hira Jha and) Santuki Jha, who are also both dead and with whom he lived jointly in mess and property, stated that he used to work as a clerk in his uncle's service, that he was acquainted with the executants of the roka in question, that he recollected this roka for Rs. 5,000 and that his uncle Santuki informed him that of this Rs. 5,000, Rs. 1,500 had been borrowed to pay a previous debt incurred in connection with the marriages of certain named members of the defendant family and that the remaining Rs. 3,500 were borrowed for expenses in connection with the settlement survey of the Barcope property. He also gives evidence that these debts were duly repaid. Another witness named Munna Lal Misser actually wrote out the bond which was signed by the executants in his presence and he definitely states that Rs. 1,500 of the amount were set off against a previous debt incurred under a roka in connection with marriages of certain named members of the defendant family and that Rs. 3,500 were taken in order to meet the cost of settlement operations. He was a relative of Santuki Jha. Another defendant Koski Nath Chowdhury, who was acquainted with all the parties and who was also an attesting witness to the roka, gives evidence to the same effect. It would, therefore, seem fairly evident that this debt is not one which can be successfully challenged.

The next item in the schedule represents a sum of Rs. 7,500. The amount is borrowed from the person Santuki Jha mentioned in connection with the previous transaction and is evidenced by a bond executed by Ram Charan Singh, Maha Prasad Singh, Hari Prasad Singh and Biswa Nath Singh. The document itself merely states that the money is borrowed “for meeting our necessities”, but the oral evidence seems to show for what purpose the money was obtained. The witness Gajadhar Jha states that he was present when the bond was executed in order to pay expenses incurred in connection with marriages of certain named members of the defendant family and of their dwiragaman ceremonies, thereafter, in connection therewith. The same statement is also made by the other witness already mentioned, named Koski Nath Chowdhury. Once more it is difficult to see how, if this story is correct, these transactions can be successfully objected to.

The tenth item on the list relates to a sum of. Rs. 5,000 borrowed from one Sagar Mull Marwari and evidenced by a roka signed by four defendants, Ram Charan Singh, Maha Prasad Singh, Hari Prasad Singh and Biswanath Singh. The document itself merely states that the money is borrowed “for meeting our necessities”. The oral evidence, which is, perhaps, of a slender character, as to the reason for which this money was taken, is that of Ballabh Ram, who was the gomastha of the lenders' firm and who was present when one, at any rate, of the executants signed the roka. He says that the money was borrowed in order to meet the cost of cultivation, to buy bullocks and for the maintenance of the family house. Once more, if this story is correct, it would be difficult to maintain successfully that such purposes may not have been either for legal necessity or on account of family benefit.

The eleventh item in the schedule refers to a further debt of Rs. 5,000 evidenced by a roka in favour of one Sri Handi Ram Manda and executed in his favour by Ram Charan Singh, Hari Prasad Singh and Maha Prasad Singh. The document merely states that the loan is affected in order “to meet necessary expenses”. In the oral evidence of one Koolida Pershad Munda, who was the son of the lender, who at the date of the deposition was an invalid, it is stated that this amount was borrowed from his father for the performance of the upanayan ceremony of a member of the defendant family and for some other purposes, which the witness cannot recollect. At any rate, so far as this goes (and the amount of the money, which would naturally be required for the purpose of the investiture of the sacred thread ceremony, would depend upon the importance of the family in which the ceremony was taking place) there is no doubt that this transaction cannot be objected to; and it must be recollected that one is here dealing with a family whose income was a substantial one and which in its own way was of very considerable importance.

The twelvth item represents a sum of Rs. 5,000 borrowed from two persons named Ram Charan Sahu and Gunu Sahu, and is evidenced by a roka signed by Ram Charan Singh, Hari Prasad Singh, Maha Prasad Singh and Biswanath Singh. The document merely states that the sum is borrowed to meet necessary expenses. The only evidence which we appear to have with regard to this loan is not very explicit as both the lenders are dead and the son of Ram Charan Sahu merely states the fact of the loan having taken place and as to its repayment.

The thirteenth item relates to a debt of Rs. 1,400 borrowed from two persons named Sri Moti Lal Sahu and Sri Sakhi Lal Sahu, and evidenced by a roka signed by Ram Charan Singh, Maha Prasad Singh, Hari Prasad Singh and Biswanath Singh. The document itself merely states that the sum is taken for the purpose of meeting necessary expenses, and there seems to be no evidence relating to the exact purpose for which this sum was borrowed.

The fourteenth item is for a large amount of Rs. 18,145-11-3, borrowed from one Sukha Ram Marwari and evidenced by a roka signed by Ram Charan Singh, Maha Prasad Singh and Hari Prasad Singh. The document states that the money was borrowed in respect of sum due on account of the price of silver and gold-cloth and an amount taken in cash. The son of the lender is a witness in the case. His name is Nope Chand Ram Marwari; he is a banker and dealer in cloth and he states in his evidence that the defendant family used to transact considerable business with him, buying cloth and silver (presumably for ornaments) from his establishment and also borrowing money. His father is now dead. He produced most of his books and papers showing the accounts which he had with the defendants. The roka in question represents a balance of account as due between the parties at the date upon which it was entered into. It would seem that some Rs. 11,000 represent the cost of purchases of garments and fabrics supplied in connection with the marriages of certain members of the defendant family. It is impossible to enter into the individual items of this very lengthy account which extended over a considerable period; but I do not see anything in evidence which would justify one in coming to the conclusion that the purchases made from this gentleman were other than of a character which might be described as properly being either for legal necessity or for family benefit.

The fifteenth item relates to a sum of Rs. 3,000 borrowed from two persons named Giridhari Lal Marwari and Lakshmi Ram Marwari and is evidenced by a roka signed by Ram Charan Singh, Hari Prasad Singh and Maha Prasad Singh. The document merely states that the loan is to meet necessary expenses; but the evidence of a witness named Luchi Ram, who is the son of the lender, seems to give some fairly definite information as to the reason why this money was borrowed; the lender himself has been dead for many years but the bond was executed in the deponent's presence. He states that Hari Prasad Singh told him that the money was required for purposes of cultivation and for their household. It is difficult, to say, without evidence to the contrary, that this debt was not contracted for either family benefit or even legal necessity.

The last item in the schedule indicates a sum of Rs. 21,469-14-0, and with regard to this, the position is, perhaps, somewhat slightly different to that which may obtain in the other items to which I have already referred. It is a loan purporting to be made on the 16th December, 1896, in favour of one Babu Anand Ram Marwari and is evidenced by a roka signed by Ram Charan Singh, Maha Prasad Singh and Hari Prasad Singh. It recites that the sum of Rs. 21,469-14-0 is due by the executants on account of principal and interest on that day in respect of a considerable number of previously contracted debts evidenced by rokas of certain dates which are given on the face of the document. It will be observed that the date of this document being the 16th December, 1896, is only a few-days prior in date to the bond upon which action has here been brought and it may be thought that in considering the next point in this case relative to antecedent debt, this close juxtaposition of dates may be of some importance. I am not sure that essentially that is the case. I proceed at once to enquire into some of the component portions of this roka and shall at the moment content myself with saying that it would appear at first sight to be a bond of a consolidating character, bringing together merely for the sake of convenience, into one a number of small debts contracted at prior dates. I do not propose to enter in any great detail upon all the items out of which this sum of Rs. 21,469-14-0 is made up and will content myself by referring to two:—

(1) an account rendered for Rs. 2,623-0-0 by one Sukh Ram Marwari for debts on account of cloth, etc., and cash, dated the 30th Sawan, 1304, which includes certain interest; and

(2) an account rendered due to Surju Ram, dated the 30th Assin, 1304, for Rs. 5,516, on current account for grocer's stores, cloth and cash which includes interest on the running account. I see no reason to attempt, even if one had the material, to delve deeply into each petty item of old accounts or rokas such as these there is ample general evidence to show that the lender did not lend haphazard, but with prudent and reasonable enquiry and I see no reason why this item should be disallowed. Now the total of the amounts, which I have already dealt with in detail and which were the scheduled amounts mentioned in the bond itself, aggregate only, about the sum of Rs. 1,10,000, and, as has been stated before, the amount of fresh money advanced was considerably greater than that, namely, Rs. 1,36,000 odd. This surplus is represented, except for a small amount, by a variety of small loans, incurred, as was the case with those to which I have already referred in detail, for various purposes, and contracted by one or sometimes more of the principal members of the controlling adults of the family in question; in addition to this, there were also certain legal expenses connected with the bond, such as for example, Rs. 1,750 for the stamp, Rs. 370 for registration and Rs. 1,750 for what is called the writing-fee, that is to say for the drawing up of the bond (a sum which to my mind, appears to be somewhat excessive but which is, I understand, conventionally, correct) speaking very generally with regard to this surplus, although there are a certain number of loans, amounting in the aggregate to a small sum, as to the reason for which there is no evidence as to why they were made, it may be said that it purports to be composed of petty borrowings made, as in the cases with which I have dealt in detail, to meet household purposes, such as the purchase of cloth for the family, for comestibles and similar commodities for a certain portion of this borrowing the Subordinate Judge has thought fit, after seeing the witnesses and hearing the evidence, to consider that there should be no decree against the family as such; and so far as I am concerned, I am not ready to disagree with the conclusions to which he has come. It will have been observed that, hitherto, I have only dealt in detail with the actual items of debt which are referred to as appertaining to the new advance of capital on the loan arranged by the bond now sued upon and have in no way considered that part of the Rs. 3,50,000 which constituted in effect a renewal of the older (the 4th) bond aggregating in itself the capital and interest then due thereon; and here, before dealing with the other side of this transaction, that is to say, with that part of it which constituted the renewal of the fourth bond of 1891, I should like to venture a few general remarks.

This case is one which exemplifies very fully the difficulties which occur in this country in endeavouring to apply principles of British jurisprudence to the incidences of the law relating to the Hindu joint family. In my short experience here, I have already expressed my view in the case of Mathura Misra v. Raj Kumar Misra, that it is hard to apply to its consideration the exact logical processes of mind upon which British jurisprudence is founded; and I have already there stated that I have been told that one must not attempt to do so; but one cannot help feeling that the position which, partially, obtains here in litigious proceedings, in connection with the status of the joint Hindu family, is the occasion for giving rise to such expensive and socially unnecessary litigation. More than that, it seems to me that, as at present viewed, the communal aspect of the Hindu joint family is in some respects a serious bar to real progress in the satisfactory administration of law and justice—quite apart from the revenual impasse which it seems to parade in this Court much energy and labour is devoted towards the enquiry, which is very often more or less uncertain or fruitless, as to whether, in fact, debts incurred by adult members of a joint Hindu family affecting the joint family property can be later on repudiated by persons such as either minors or children, not even born when the debts were contracted, on the ground that they were not binding upon the challengers on account of the fact that they were contracted for immoral purposes, or for reasons disconnected with what is known as legal necessity or family benefit. I omit altogether, for the moment, the conditions in which it is proved that such debts were incurred for improper purposes, as, so far as this case is concerned there is no real suggestion now that the position occupied was ever of that character. On the other hand, it has been pointed out by the Judicial Committee of the Privy Council that when, in cases of this character, one finds debts contracted long ago by the heads of the family, it may be difficult and often impossible for the successors of the lender to prove within the close four corners of the doctrines of legal necessity or family benefit the cause why such money was advanced. It is interesting to observe in this connection, in this case, that the bond now sued upon was dated so long ago as the 21st December, 1896. I cannot help thinking that, where one finds the principal adult members of a joint family borrowing money without any evidence being shown against such transactions as being of an improper character, it is very difficult for minors at a far later date to dispute them or to allege casually, without positive evidence that those transactions were not designed for the benefit of the family or for some legal necessity. I cannot also help thinking that to embark upon any very serious enquiry into such circumstances would almost render the task of the judiciary here practically impossible. It is true that in this Province we have very frequently before us the spectacle of the historical position, which one has observed similarly in other countries many years ago. We see well-to-do gentlemen with, what the ordinary person would regard as, quite adequate incomes belonging to the zamindari class apparently unable to and sometimes careless of whether they can, meet their expenses out of their revenues; these gentlemen are sometimes really extravagant and on the other hand sometimes unwilling on account of the position which they hold to lower their standard of expense of living for fear of not retaining themselves in the high estimation in which they have hitherto been held. The consequence of either of these two conditions is often disastrous as they often resort to borrowing. In this case now before us there is now no suggestion of anything other than that the revenue-derived from the defendants' estates did not altogether suffice to support the altitude of the dignity of the position which they thought it fit and incumbent on themselves to maintain. For persons situated such as these are and surrounded, no doubt, by considerable difficulties, it seems to me that one must make considerable allowances; and, although they may be regarded as perhaps improvident, I am not at all prepared to say that, under the views which I have indicated, the debts which they contracted can be regarded under normal circumstances in law as incapable of recovery by the lender.

The difficulty of understanding the positron of the Hindu joint family as it is to be regarded by modern conceptions of case law, seems, in my respectful opinion, to be due to the fact that the trend of recent decisions appears to have been, and perhaps rightly, directed towards the clarifying of the curious legal results due to the somewhat anomalous and archaic conditions created by the legal incidents attached under Hindu Law to the joint Hindu family; this attitude appears to be of comparatively recent date and seems to me to be founded largely on legal fictions, which do not, so far as I can see, emanate directly from the Hindu Law, but, on the other hand, it seems probably useful and salutary, and, I should imagine, is still in a very transitional stage. So far as one can judge from the constant questions on the matter which are brought before this Court, there must arise out of, for example, the doctrine of antecedent debt, numerous important enquiries which have not as yet been decided; and yet one cannot help thinking that doctrine is an artificial one, and that legislation is the real remedy to place the present unsatisfactory state of affairs upon an intelligible footing. It is practically impossible for the Courts here successfully to grope back into years long past in order to ascertain, with regard to debts contracted long before the date of the suit, whether they were for improper purposes or for legal necessity or family benefit. If, where the onus is on the plaintiff who lent the-money, he or his successor can substantially prove that he (the lender) made at the time some sort of reasonable enquiry, that is the utmost in my humble opinion which he or they should be required to prove; indeed as to what this enquiry should be, I have no doubt, for, if it was necessary for a person approached by another person, a member of a joint Hindu family, for a loan to investigate completely and exhaustively the reason why a loan should be required and whether it could properly be given, all lending transactions of that category between the public in this country would almost be for practical purposes at a standstill. When a lender contemplates lending money to a karta of a joint family, it is probable that, according to the present law, he should make some clear enquiry as to the reason for which the loan is being arranged, but provided that he is told that reason and that reason seems to him a proper one, it does not appear to me that it is necessary for him to make any further enquiry. It occurs to me to be indeed absurd that it should be contemplated that a lender should examine entirely the circumstances of the borrower or to do more than be assured by him that the money is required for the legal necessity or the family benefit of the family which the borrower represents. For these reasons, therefore, I consider that the view which the Subordinate Judge expressed with regard to the new money advanced in connection with the bond sued upon is substantially correct; apart always from the question of the amount of interest which can be claimed under the limitations imposed by the Santal Parganas Regulation. I have deait, so far with the question of, what I call, the fresh capital which was advanced under the bond sued upon; but I have, still now, to deal with that portion which constituted the basis of the renewal of the old bond of the 29th September, 1891. Now, with regard to this, of course, we have the application of the doctrine of antecedent debt, and it is necessary, therefore, that one must regard the question from that standpoint. [See Bhagbat Pershad Singh v. Girja Koer, Khalilur Rahman v. Gobind Pershad, Sahu Ram Chandra v. Bhup Singh and Mathura Misra v. Rajkumar Misra]. So far as the principle is concerned, the Patna High Court in Mathura Misra v. Rajkumar Misra has decided that where the karta of a family has, hypothecating the family property, entered into an obligation which was based upon a previous similar obligation disconnected with it in fact and in time, the doctrine of antecedent debt applies, and, of course, I do not recede from that judgment to which I was a party. This may be right or wrong, but I believe it is in consonance with the present idea of the development of the antecedent debt theory; and, incidentally, as an instance of encroachment on the ancient legal incidences attaching themselves to the joint Hindu family some of which are so opposed to modern thought. It will be observed, here, that, in the case of this fifth bond the fresh capital borrowed amounted to Rs. 1,36,142 the balance, which, consisting both of capital and accrued interest, constituted a renewal of the 4th bond, dated the 29th September, 1891, being Rs. 2,13,858. This 4th bond was entered into by Ram Charan Singh for himself and for Rup Narayan Singh, his minor son; by Hari Prasad Singh for himself and for Lakhi Prasad Singh and Bishun Prasad Singh, his minor sons; by Biswanath Singh; by Maha Prasad Singh for himself and for Sashi Bhusan Singh, his minor son; and by Gajadhar Singh. So far, therefore, as can be seen, it would appear to be binding in every manner possible and if this Court by its Full Bench decision [Mathura Misra v. Rajkumar Misra], is correct, the obligation incurred in the 4th bond is binding.

A curious question has been raised in connection with the position which, it is suggested, might obtain in certain circumstances which might be applicable, both in connection with some of the debts which were paid off by the fresh capital which was borrowed under the 5th bond and in connection with some of the debts which similarly were paid off under the 4th bond; the question relates to bow for the doctrine of antecedent debt may properly be extended and it arises in this way. The doctrine of antecedent debt is supposed to be founded upon Hindu Law [See Mayne: Hindu Law and Usage, 8th ed., p. 395: Gharpure's Mitakshara, p. 86. (Yajnavalkya, verse 55); Tagore's Daya-bhaga and Vivada Chintamani, pp. 34 and 35; Colebrook's Mitakshara, p. 22.]

On the other hand, it has been equally strenuously contended before us that the development of this doctrine has now gone past the mere application of the ancient texts and is based at present upon much case law decision. It is common ground, however, that where a mortgage of family property is executed by a father to pay off a proper prior debt it is binding upon his son. But what is the position in the event of all the adult members of a joint family joining in entering into a mortgage for a like purpose? Are all the sons of all the adults liable and is the whole of the family property mortgaged by all these adult members of the family liable in the same way as the sons of a father would be liable in respect of a family property for such a debt so incurred by their father? I cannot see that any other answer can be given save in the affirmative. But the matter does not rest there. It has already been observed that there were at least four adult members of this joint family and that the fresh capital was borrowed by them under the 5th bond for the purpose of paying off previously incurred debts, which had been incurred in some cases under documents executed by all four adults, in other cases only by three of them and in other instances by only one. The question arises as to what is the position with regard to the application of the doctrine of antecedent debt to the family property with respect to, let us say, for example, a debt previously incurred by a single one of these four adult members. It is true that it may, perhaps, be taken that although the document, which constitutes the evidence of such a debt, is only executed by one of the four adults, no doubt the transaction was at the time impliedly acquiesced in by the other three adult members of the family and expressly ratified by the fact that it is aggregated into the lump sum which finally forms the principal part of the fresh capital borrowed under the 5th bond for the purpose of paving off all these antecedent debts however contracted; and in that way it might perhaps be argued that, provided if is clear that at least implied or expressed acquiescence was really present, it would not matter in law that the debt purported to have been incurred by one or for that matter by three of the four adult members of the family. I think this raises a question of no little difficulty and to some extent it is difficult to avoid being let into a confusion of mind between the incidences of the doctrine of antecedent debt and the incidences which are capable of application in the case where debts incurred by representative members of a joint family are for the purpose of legal necessity or family benefit. If the doctrine of antecedent debt, as it now stands, has to be based upon the Hindu Law alone, I doubt, if, in cases such as those which I have quoted above it would be possible to apply it. But if, on the other hand, the doctrine may be regarded as in course of development under the mounding of judicial decisions, I am inclined to think that the doctrine is capable of extension to cover instances of the character which I have indicated. The sixth point is as to whether the personal decree should not be regarded as barred by Order II, rule 2, of the Civil Procedure Code, in view of the previous suit. On this question I have had the advantage of seeing my Lord the Chief Justice's judgment and with his conclusions I entirely agree. It may be now advantageous here to summarize the conclusions to which I have come. They are as follows:—

(1) I think that the Court has jurisdiction to try the case.

(2) I do not consider that the plaintiffs can recover more interest than the amount equivalent to the total fresh capital actually advanced by the plaintiffs and that from this sum must be deducted that interest which has already been paid. It is fortunate that here it is common ground that on the calculation of interest on this basis, the amount due is not less than the amount which would thus be awarded and the calculation of this sum is merely a matter of simple arithmetic.

(3) 1 bow to the opinion held by this Court that the ordinary legal interest cannot run on the decretal amount if such accrual increases the amount of interest to a sum greater than the principal advanced.

(4) I am not prepared to disagree with the views expressed by the Subordinate Judge as to the amounts of the debt which he considers to have been incurred on account of legal necessity or family benefit or with regard to that amount for which he has given a personal decree.

(5) I do not consider that the personal decree is in any way barred by the previous proceedings.

(6) I do not think that the suit is barred in any way by limitation.

(7) I think that the 4th bond is an antecedent debt upon which that part of the 5th bond which relates to it can be entirely supported, subject to the question of interest.

(8) In all other respects I agree with the judgment of my Lord the Chief Justice.

Appeal decreed in part.