Inder Chand v. Bidyadhar Pandey

Das, J.:— This appeal comes before ??? from the judgment and decree passed ??? the learned District Judge of Shahabad ??? and arises out of a mortgage action ??? by the appellant against the respondents. The appellant cited as defendant in the action the executant of the mortgage bond as wall as his sons who ??? defendants Nos. 1 to 7. He also ??? as defendants one Murki Pandey and ??? sons as defendants Nos. 8 to 10.

2. The case of the plaintiff was that ??? defendants Nos. 1 to 10 constituted a joint family and that Bidyadhar, defendant No. 1, borrowed Rs. 250 from him for the benefit of the entire joint family.

3. The defendants entered appearance and on behalf of defendants Nos. 8 to 10 it was urged that they were separate from Bidiyadbar and his branch of the family and are therefore not liable for the mortgage debt at all. On behalf of all the defendants objection was taken to the rate of interest and to compound interest.

4. The Courts below have concurrently come to the conclusion that the two families taken together constituted a joint family, but being of opinion that the particular transaction was a transaction of Bidiyadhar's branch of the family, the Courts have dismissed the suit as against the defendants Nos. 8 to 10.

5. On the question of interest both the Courts have come to the conclusion that there was undue influence exercised on Bidiyadhar in respect of compound interest and they have accordingly passed a decree against Bidiyadhar's branch of the family for Rs. 250 with simple interest at the rate of 24 per cent, per annum.

6. We are of opinion that the learned District Judge erred in law in dismissing the suit as against Murki Pandey's branch. We are also of opinion that he ought not to have dismissed the claim for compound interest.

7. On the first point it is sufficient to refer to the finding of the learned District Judge that the two families taken together constituted a joint family. No doubt the learned District Judge does say that each branch had transactions of its own. Now it was open to the learned Judge on a consideration of all the facts to come to the conclusion that as a matter of fact the two branches were separate but that is not the finding. The finding being that the two families taken together constituted a joint family, there is no escape from the conclusion that every one of them is liable for a debt binding on the joint family. It was, however, urged on behalf of the respondents that there is no finding that Bidiyadhar was the karta of the joint family and that therefore the family is not liable for the debt incurred by one who was not karta of the joint family. With this contention I do not agree. If the debt was a debt binding on the joint family we must assume that there was an authority vested in Bidiyadhar to borrow the money for what must now be considered to be a joint family necessity.

8. On the second point it was of course open to the learned District Judge to dismiss the claim for compound interest on the ground that there was undue influence exerted on Bidiyadhar but no case of undue influence is made in the written statement. The question of undue influence is a question of fact, and it is well established that undue influence being a species of fraud must be pleaded with precision. If a case of undue influence is not made in the pleadings such a case cannot be investigated by the Courts. That being so the decision as regards compound interest is wrong.

9. I would set aside the judgment and decree passed by the Courts below and grant the plaintiff the usual mortgage decree for Rs. 250 with interest at the rate of 24 per cent, per annum with yearly rest. The appellant is entitled to costs throughout. The period of redemption will be six months from the date of the decree of this Court.

10. Adami, J.:— I agree.

11. Rule made absolute.