Jwala Prasad, J.:— The only point raised in this appeal is that the bond in suit was executed by the junior members of the family, defendants Nos. 2 to 5, and not by the karta of the family, defendant No. 1, and consequently it cannot have the effect of creating any charge upon the family property.
Mr. Lachmi Naryan Singh contends that the karta alone is entitled to charge the family property for a debt incurred by him although the other members do not join in the transaction; they are deemed to have impliedly consented to it. He, however, concedes that in certain circumstances, such as when the karta of the family is abroad, the junior members of the family can incur a debt charging the family property which would be binding upon the other members of the family. In the present case the defendant No. 1 was in jail in connection with some other case and, therefore, the business of the family had necessarily to be conducted by the remaining members of the family. But the rule of Hindu law upon which the act of the karta and his dealing with the family property are binding upon the other members of the family does not restrict it to the karta alone. It is wide enough to authorize any member of the family to deal with the family property, such as to incur debts, provided the act is done in times of distress and for family necessity. The Mitakshara in Ch. I, Sec. 1 para 28 says:—
“Even a single individual may conclude a donation, mortgage or sale of family immovable property during a season of distress for the sake of the family and especially for pious purposes.”
No doubt for convenience sake and generally the senior member of the family becomes the karta and in that position he deals with the family property. Instances, however, are not few in which the junior members deal with the family property during the lifetime of the karta. The managing member is one who manages the family business in a joint Hindu family and he has authority also to deal with the family property for the purpose of incurring debts for the family necessity. There is, therefore, no substance in the contention put forward by Mr. Lachmi Narain Singh. It has also been urged by him that the family property cannot be charged for the debt incurred in the present case which was for the purpose of defending defendants 2 to 5 in a criminal case. The Lower Court has held that the criminal offence charged against these defendants was in connection with some joint family property. If that is so the defence of the case was for the benefit of the entire family. On the other hand, there are also authorities to the effect that the defence of a member of a joint family is regarded among the Hindus as a pious and necessary act in order to remove the stigma of disgrace upon the whole family consequent upon the conviction of one member. The solitary case [Nathu Rai… v. Dindayal Rai….] which may, at first sight give support to the contention of Mr. Lachmi Narain Singh has been dealt with in the case of Hanumat Mahto v. Sonadhari Singh which has reviewed all the authorities on the point. Apart from the authority of the Hindu Law, Sir Edward Charnier, in the case of Beni Mam v. Man Singh, clearly showed that the defence of a criminal is not at all sinful “and according to our system of jurisprudence and practice a man is presumed to be innocent until his guilt is established”. Therefore the question whether there existed legal necessity for raising the loan cannot be made to depend upon the result of the trial. This contention is also overruled.
It was faintly suggested as a last straw that the bond was not properly proved. The finding of the court below on this point is conclusive. The appeal is accordingly dismissed with costs.
Das, J.:— I agree.
Appeal dismissed.