The Judgment of the Court was as follows:
Nasim Ali, J.:— The facts which are not in dispute in this appeal are these:—
One Sitaram Chowkhani was the karta of a Mitakshara undivided joint Hindu family consisting of himself and his two sons. This family carried on a business under the name and style of “Sitaram Budhkaran” and acquired various properties including a tea estate known as Gograjan Tea Estate in Dibrugar within the Province of Assam. Sitaram as karta of this joint family was in charge of the management of the joint family business “Sitaram Budhkaran” and other properties belonging to the joint family. On September 28th, 1926, he borrowed Rs. 25,000 with interest at 10½ per cent. per annum from the Plaintiffs on the mortgage of the Gograjan Tea Estate. In the mortgage bond (Ex. 1) he stated that he was the absolute owner of the said tea garden. The due date of payment of the mortgage money was 30th November, 1927. On 19th March, 1928, the mortgagor paid Rs. 2,794-12 towards interest due on the mortgage debt. On 6th March, 1934, the firm “Sitaram Budhkaran” wrote to the mortgagee a letter (Ex. 2), stating that they had not been able to make any arrangement for the payment of the mortgage money. Rs. 2,000 was paid as interest for the loan on the 5th of June, 1934. The mortgagor died on the 15th of February, 1936. On 30th of March, 1936, his eldest son Defendant No. 1 on behalf of the firm “Sitaram Budhkaran” signed a memorandum of accounts [Exts. 6, 6(1) and 6(B)], acknowledging the liability under the said mortgage bond for a sum of Rs. 53,181 up to 30th of March, 1936, including interest at the stipulated rate after deduction of all payments made up to that date. On the 1st of June, 1936, a letter (Ex. 3) was written by the firm “Sitaram Budhkaran” to the mortgagee, informing them that they were trying to procure money for paying off the mortgage debt and that if they would succeed they would pay off the amount. On 4th December, 1936, the firm “Sitaram Budhkaran” supplied to the mortgagee timber worth Rs. 103-3-3 and this amount was credited towards the interest on the mortgage debt. On December 23rd, 1936, the mortgagees raised the present suit against the two sons of Sitaram Chowkhani (Defendants Nos. 1 and 2) and the two sons of Defendant No. 1 (Defendants Nos. 3 and 4) for recovery of Rs. 25,000 as principal and Rs. 25,000 as interest on the basis of the mortgage bond executed in their favour by Sitaram Chowkhani on the 28th September, 1926.
2. The case of the Plaintiff mortgagees is that Sitaram Chowkhani as karta of the joint family borrowed Rs. 25,000 from them on the bond in suit in the interest and for the benefit of the joint family.
3. Defendant No. 2 did not appear. The suit was contested by Defendant No. 1 on his own behalf and on behalf of his minor sons Defendants Nos. 3 and 4. Their defence is that Sitaram Chowkhani did not borrow the money on the bond in suit in the interest or for the benefit of the joint family as alleged by the Plaintiffs. Their case further is that he borrowed the said money not as karta of the joint family but in his personal capacity for the purchase of a tea estate called Molan Tea Estate in partnership with two other persons who were strangers to the family.
4. The trial Judge has found that Sitaram Chowkhani borrowed Rs. 25,000 on the bond in suit as karta of the joint family and that the loan was taken in the interest and for the benefit of the joint family, that the mortgage was ratified by Defendants Nos. 1 and 2 and that the Plaintiffs were entitled to get Rs. 20,777-1-9 as interest after deducting the amount paid towards interest. He has accordingly passed a preliminary mortgage decree for Rs. 45,777-1-9 with proportionate costs.
5. Hence this appeal by the Defendants.
6. The power of the manager of a joint family governed by the Mitakshara law to alienate immovable property belonging to the family is defined in the following verses of Chapter I, sec. 1 of the Mitakshara:
“27. Therefore it is a settled point, that property in the paternal or ancestral estate is by birth, (although) the father have independent power in the disposal of effects other than immovables, for indispensable acts of duty and for purposes prescribed by texts of law, as gifts through affection, support of the family, relief from distress, and so forth: but he is subject to the control of his sons and the rest, in regard to the immovable estate, whether acquired by himself or inherited from his father or other predecessor; since it is ordained. Though immovables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They, who are born, and they who are yet unbegotten, and they who are still in the would, require the means of support. No gift or sale should, therefore, be made.”
“28. An exception to it follows: ‘Even a single individual may conclude a donation, mortgage or sale, of immovable property, during a season of distress, for the sake of the family, and especially for pious purposes’.’
“29. The meaning of that text is this: while the sons and grandsons are minors, and incapable of giving their consent to a gift and the like: or while brothers are so and continue unseparated; oven one person, who is capable, may conclude a gift, hypothecation, or sale of immovable property if a calamity affecting the whole family require it, or the support of the family render it necessary, or indispensable duties, such as the obsequies of the father or the like, snake it unavoidable.”
7. The judgment of the Judicial Committee in the case of Hanuman Prasad Pandey v. Mussumat Babooee Munraj Koonweree(1) was apparently founded on these verses [Benares Bank, Ltd. v. Hari Narain(2)]. The expression “in case of need” in this judgment may be traced to the words “during a season of distress” in verse 28 and the expression “for the benefit of the estate” to the Words “for the sake of the family” in the said verses— (Mulla's Hindu Law, 9th Edition, 275). In Palaniappa Chetty v. Deivasikamony Pandara(3), Lord Atkinson said:
“No indication is to be found in any one Of them Hanuman, Prasad Pandey v. Mussamut Babooee Munraj Koonweree, Prosanna Kumari Debya v. Golab Chand Baboo(4) and Konwar Doorga Nath Roy v. Sam Chunder Sen(5), as to what is, in this connection, the precise nature of the things to be included under the description “benefit to the estate”. It is impossible, their Lordships think, to give a precise definition of it applicable to all eases, and they do not attempt to do so. The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things would obviously be benefits. The difficulty, is to draw the line as to what are, in this connection, to be taken as benefits and what not.”
8. In Sahu Ram Chandra v. Bhup Singh(6), Lord Shaw said:
“Under the law of the Mitakshara the joint family property owned, as stated, toy all the members of the family as coparceners, cannot be the subject of a gift, sale, or mortgage by one coparcener except with the consent, express or implied, of all the other coparceners. And deed of gift, sale, or mortgage granted by one coparcener of his own account of or over the joint family property is invalid; the estate is wholly unaffected by it, and its entirety stands free of it. The rule of the (Mitakshara is clear (cl. 1 see. 1, V. 27); even the father ‘is subject to the control of his sons and the rent in regard to the immovable estate, whether acquired, by himself or inherited from, his father or other predecessor’; since it is ordained ‘though immovables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons’.”
“The law of the Mitakshara has, however, given to the father in his capacity of manager and head of the family certain powers with reference to the joint family property. The general principle in regard to that matter is that he is at liberty to affect or to dispose of the joint property in respect of purposes denominated necessary purposes. The principle in regard to this is analogous to that of the power vested in the head of a religious endowment or math, or of the guardian of an infant. In all of the cases where it can be established that the estate itself that is under administration demanded, or the family interests justified, the expenditure, then those entitled to the estate are bound by the transaction. It is not accurate to describe this as either inconsistent with or in exception to the fundamental rule of the Mitakshara. For where estate or family necessity exists, that necessity rests upon the coparceners as a whole, and it is proper to imply a consent of all of them to that act of the One which such necessity has demanded.”
8. The answer to the question as to whether the alienation by the karta of the joint family was “for the sake of the family” or “for the benefit of the estate” or “for family interests” would depend on the facts of each particular case.
9. Exhibits 2, 6, 6(1), 6 (b) and Ex. 3 show that the mortgagor and after his death Defendant No. 1 treated the debt as the debt of their joint family business “Sitaram Budhkaran.”
10. This joint family business however was not an ancestral business of Sitaram. It was started by him while his eldest son (Defendant No. 1) was a mere boy. At the time of the mortgage Defendant No. 1 was 24 years old and Defendant No. 2 was 16 years old. A new business is not within the purview of verses 27 to 29 of Chapter I of the Mitakshara [Benares Bank, Ltd. v. Hari Narayan].
11. In their plaint the mortgagees simply stated that the loan was taken in the interest and for the benefit of the joint family. How the loan benefited the joint family was not stated in the plaint. The Defendants in their written statement denied the allegation of the Plaintiffs that the loan was taken in the interest and for the benefit of the joint family.
12. The issues in the suit were settled on the 18th March, 1937. On 9th November, 1937, the Plaintiffs summoned the Defendants to produce in Court all the account books of the firm “Sitaram Budhkaran” from 1923 to 1937 and the cash book of the mortgaged Tea Estate. On 19th November, 1937, the Defendant No. 1 filed an application before the trial Judge, stating that some of the account books were once removed from their shop by his father to his country home in Rajputana in connection with a claim against one Dedraj Ramballav. On 20th November , 1937, the Plaintiffs filed an application before the trial Judge stating inter alia that the account books of the joint family concern “Sitaram Budhkaran” would show that the amount of the mortgage bond was taken for the purposes and benefit of the joint family, that the Defendants were in possession of these account books and that they were withholding them on flimsy excuses. On 22nd January, 1938, the Plaintiffs again applied to the trial Judge for an order upon the Defendants to produce the account books before the hearing of this suit for their inspection. On 24th January, 1938, the trial Judge ordered the Defendants to produce the documents in Court for inspection of the Plaintiffs. The Defendants however did not produce these documents.
13. The hearing of the suit commenced on the 4th of February, 1938. On that date Plaintiff No. 1, Thakur Prasad Shah, gave his evidence. In his examination in chief he said:
“The loan was taken to spend in the garden and on timber business and on their shop business.”
14. In cross-examination he stated:
“I did not ask for account from, them to show how the money was spent by them nor did I look into their account. Sitaram and Bodhkaran (Defendant No. 1) both said that they were spending the money in the garden.”
15. Bodhkaran gave his evidence on the 8th February. In his evidence he did not deny the statement of the Plaintiff No. 1 that he told him that the money raised was being spent for the garden. He, however, in his evidence stated that the money raised by the mortgage was not spent on the tea garden. In his cross-examination Defendant No. 1 admitted that the expenses incurred on the tea garden were entered in the books of their joint family business “Sitaram Budhkaran” and that that business was still a running business. P.W 4 who was admittedly the manager of the Gogarjan Tea Estate from 1925 to 1929 in his evidence said that all money for the garden (Gogarjan Tea Estate) was taken from Sitaram Bodhkaran firm. There cannot be any doubt, therefore, that the money spent for running the mortgaged tea garden was supplied from the joint family firm Sitaram Bodhkaran and was entered in the account books of this firm.
16. It can be reasonably inferred from Exhibits 2, 6 and 3 that the sum of Rs. 25,000 which was borrowed by Sitaram was entered in the account books of the firm Sitaram Bodhkaran. Defendant No. 1 in his evidence stated that money required for running the mortgaged tea garden in the year 1926 was obtained from his cousins. This evidence shows that in 1926 they had not sufficient money for running the tea garden. The several applications filed by the Plaintiff before the hearing of the suit clearly show that the Defendants had sufficient notice of the Plaintiff's case that the loan was spent for running the mortgaged tea garden. Apparently the Plaintiffs called for the cash book of the mortgaged tea garden and the account books of the firm Sitaram Bodhkaran to show the amount of money which was spent after the mortgage for running the tea garden and also to show the source from which that money came. The Defendants in their written statement said that the money raised on the mortgage was spent for purchasing another tea garden, namely, Mullen Tea Estate. The Defendant No. 1 in his evidence, however, simply stated that his father purchased the Mullen Tea Estate jointly with Surajmal and Hunuman Bux. He, however, did not say that the mortgage money was spent by his father for purchasing the Mullen Tea Estate. In his evidence Defendant No. 1 said that in 1926 the expenses for running the mortgaged tea estate were met by loan from his cousins and that the money raised on the mortgage bond in suit was not spent for the mortgaged garden. The best evidence to substantiate these statements of the Defendant No. 1 are the account books called for by the Plaintiffs from the Defendants. Sitaram is dead. It has been already stated that Bodhkaran did not deny the statement of Plaintiff No. 1 that he told him that the money was spent for the garden. In order to show that the admission by Sitaram and Bodhkaran to Plaintiff No. 1 that the money was being spent for running the garden was true, Plaintiffs called for the account books from the Defendants. The Defendants, however, refused to produce the account books on flimsy grounds. The onus is no doubt on the Plaintiffs to show that the money raised on the mortgage was spent for running the garden. In Murugesam Pillai v. Manikavasaka Pandara(7), Lord Shaw said:
“A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough—they have no responsibility for the conduct of the suit: but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. The present is a good instance of this bad practice. It is proved in the ease by the first witness that ‘the math has regular fair day-books; they are not now before the Court; ledgers are also maintained in the math.’ These ledgers and day-books were in the possession of the Defendants or those of them who were heads of the institution and they are not put in evidence. The proposition that these Defendants challenged was that the expenses incurred had been incurred for the math and were necessary for its purposes. The best assistance to a Court of justice would have been a scrutiny of these documents, and their Lordships feel free to conclude that if they had been by their entries confirmatory of the Defendants view the Defendants' would have brought them into Court.”
17. The observations of Lord Shaw, apply to the facts in the present case.
18. Plaintiff No. 1 in his evidence said that both Sitaram and Defendant No. 1 told him that the mortgage money was being spent by them for the tea garden. It was open to the Defendants to show that this statement of Plaintiff No. 1 was false by the production of the account books called for by the Plaintiffs. They, however, did not do so. We have, therefore no hesitation in believing the statement of the Plaintiff No. 1 that Sitaram and Defendant No. 1 admitted that the money borrowed was being spent for the garden. From the withholding of the account books called for by the Plaintiffs it would not be unreasonable to presume that if the account books had been produced, that would have shown that the entire amount raised by the mortgage was spent for running the tea garden. In view of the facts and circumstances of this case we are of opinion that the money raised with the mortgage in suit was spent for running the mortgaged tea garden.
19. This tea garden is admittedly a joint family property. The evidence of Defendant No. 1 is that at the time of the mortgage tea was being grown over 60 to 70 acres of land in this garden and that 500 to 550 maunds of tea were used to be manufactured in the garden factory. To maintain the garden and factory evidently money was necessary. Money being not available for maintaining the garden which was a source of income to the joint family, Sitaram had to borrow money from the Plaintiffs. We therefore hold that interests of the joint family justified the expenditure of the money raised by loan on the mortgage bond in suit and that all the members of the joint family are bound by this transaction. The trial Judge was therefore right in decreeing the suit.
20. In the decree passed by the trial Judge there is a direction that if the money realised by the sale of the mortgaged property be not sufficient for payment of the decretal amount, Plaintiff shall be at liberty to apply for a personal decree against the Defendants for the balance. The learned Advocate appearing for the Plaintiff Respondents conceded that the Defendants were not personally liable for the mortgage money and that the trial Judge was wrong in passing a personal decree against the Defendants for the balance. The personal decree against the Defendants is therefore set aside. Subject to this modification the decree of the trial Judge is affirmed and the appeal is dismissed with costs to the Plaintiff Respondents. Hearing-fee is assessed at 5 gold mohurs.
Pal, J.:— I agree that this appeal should be dismissed and I respectfully concur in the views of the law and of the fact taken by my learned brother. I would only add a few words.
22. Property is not an institution having a fixed form constantly remaining the same. In reality it has assumed the most diverse forms and is still susceptible of great and unforeseen modifications.
23. What is the best form of property at any given moment we can only learn from the study of man's nature, of his wants and sentiments and the ordinary consequences of his acts.
24. In the Sanskrit language, in which etymologies often disclose a complete philosophy, the words for “property” and “ownership” are and and these involve a certain relation between persons and things.
25. It will serve no useful purpose to examine how far the Smriti texts relied on by Vijnaneshwara support the propositions laid down by him. As was pointed out by the Judicial Committee in Collector of Madura v. Moottoo Ramlinga(8), the duty of a Judge while administering Hindu law
“is not so much to inquire whether a disputed doctrine is fairly deducible from the earliest authorities ((Smritis) as to ascertain whether it has been received by the particular school which governs the district with which he has to deal, and has there been sanctioned by usage. For, under the Hindu system of law, clear proof of usage will outweigh the written text of the law.”
26. The commentators, while professing to interpret the law laid down in the Smritis, really expounded the customs and usages which they found prevailing in the locality. This is why their interpretations have been accepted as authoritative and it is no longer permissible to go beyond such interpretations to the original Smriti texts.
27. The Smriti texts seem to refer to an age when property was still primarily and essentially a group affair,— In its origin, its force, its continuance as property, it was still chiefly an exercise of group energy.
28. The operation of a group function securing the attachment of the members is perhaps the most primary aspect of property which we can distinguish. It is an attribute of self-conscious persons to desire objective possessions in exclusion of all others possessing. Guarantee of this desire to a decree, and in certain forms, in enforcing as property certain claims to possession, is a part of the price which the group pays for its continuance as a group.
29. When the family becomes certain and establishes itself, its members take to the cultivation of land and later makes the beginning of ownership, which appears as a collection of means suitable to the preservation and development of that collective body. Ownership in a family undergoes modification according to the nature and purpose of the family itself, which is an inter-penetration of persons, a communion of sentiments, affections, ideas and wills. A sort of co-ownership is bound to arise in these circumstances. The sons, participators in the community, did not acquire upon the death of the father a new right but merely obtained greater freedom in the administration of the goods.
30. In the family there are superiors and inferiors. The inequality does not render co-ownership impossible, but only makes the different members enjoy an unequal property right.
31. To the father, that is to the head, belongs the decision of what are necessary or useful expenses of the family according to the norm of a wise control.
32. Vijnaneshwara bases “property” on popular recognition and advocates what is known as as distinguished from . According to him every one ought to have property as it is necessary for his support.
33. For every man property is a condition of his existence and development. It is based on the actual nature of man, and should therefore be regarded as an original, absolute right which is not the result of any outward act, such as occupation, labour or contract. The right springing directly from human nature, the title of being a man, is sufficient to confer a right of property. Vijnaneshwara only limits his theory to a son and a grandson and confines it within the compass of a family.
34. The right of property includes the conditions and means for the acquisition, retention and employment of property and comprises at the same time the juridical actions given to the proper person for the exercise of ownership.
35. After explaining how “property” is based on popular recognition Vijnaneshwara proceeds to examine whether property arises from birth or from the death of the prior owner. His conclusion is that property in the paternal and grand-paternal estates is by birth:
36. Even then “the father has independent power in the disposal of effects other than immovables for, indispensable acts of duty and for purposes prescribed by texts of law, as gifts through affection, support of family, relief from distress and so forth:
37. After propounding the proposition that property arises from birth in the paternal as well as in the grand-paternal estates, Vijnaneshwara proceeds to explain to what extent, in spite of such co-ownership in sons and grandsons, the property may be disposed of by the father,—father, not as guardian of his sons, but as a co-owner.
38. The co-owner has the duty and therefore, the power to employ his wealth to satisfy individual needs and especially his own needs, and to employ his wealth for the development of his physical, intellectual and moral forces.
39. The co-owner has the duty, and therefore, the power to employ the property to the satisfaction of the needs of the family. But he is subject to the control of his sons and the rest in regard to immovable estate, whether acquired by himself or inherited from his father or other predecessor.
40. Since it is ordained
“Though immovables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They who are born, and they who are yet unbegotten and they who are still in the womb require the means of support, no gift or sale should therefore be made,”
41. An exception to it follows:—
“Even a single individual may conclude a donation, mortgage or sale of immovable property during a season of distress for the sake of family and especially for pious proposes”.
42. The meaning of the text is this:—
43. While the sons and grandsons are minors and incapable of giving their consent to a gift and the like, or while brothers are so and continue unseparated, even one person who is capable, may conclude a gift, hypothecation or sale of immovable property, if a calamity affecting the whole family requires it, or the support of the family render it necessary, or indispensable duties such as the obsequies of the father or the like, make it unavoidable.
“Separated kinsmen, as those who are unseparated, are equal in respect of immovables; for one has not power, over the whole, to make a gift, sale or mortgage.
44. This passage from Manu must be interpreted:
“Among unseparated kinsmen, the consent of all is indispensably requisite, because no one is fully empowered to make an alienation, since the estate is in common:”
“but among separated kindred, the consent of all tends to the facility of the transaction by obviating any future doubt, whether they be separate or united.”
“it is not required, on account of any want of sufficient power in a single owner”
and the transaction is consequently valid even without the consent of separated kinsmen.
45. In the text which expresses
“Land passes by six formalities by consent of townsmen, of kinsmen; or neighbours and of heirs, and by gift of gold and of water.”
46. Consent of townsmen is required for the publicity of the transaction since it is provided that “Acceptance of a gift, especially of land, should be public,” but the contract is not invalid without their consent. The approbation of neighbours serves to obviate any dispute concerning the boundary. The use of the consent of kinsmen and of heirs has been explained.
47. In respect of the right by birth, to the estate paternal or ancestral, we shall mention a distinction under a subsequent text (sec. 53).
48. Vijnaneshwara says that “although property arises by birth in paternal as well as in grand-paternal estate, there is a distinctive peculiarity in dealing with them. The peculiarity referred to is explained by him later on while commenting on the sloka—
“For the ownership of father and son is the same in land which was acquired by the grand-father, or in a corrody or in chattels” (which belonged to him).
49. He says:—
50. In such property, which was acquired by the paternal grand-father, through acceptance of gifts or by Consequent or other means (as commerce, agriculture or service) the ownership of father and son is notorious: and therefore partition does take place.
51. For, or because, the right is equal or alike, therefore partition is not restricted to be made by the father's choice; nor has he a double share.
52. So likewise the grandson has a right of prohibition if his unseparated father is making a donation, or a sale, of effects inherited from the grandfather:
but he has no right of interference, if the effects were acquired by the father. On the contrary, he must acquiesce, because he is dependent.
53. Consequently the difference is this: although he has a right by birth in his father's and his grand-father's property, still, since he is dependent on his father in regard to the paternal estate and since the father has a predominant interest as it was acquired by himself, the son must acquiesce in the father's disposal of his own acquired property.
but since both have indiscriminately a right in the grand-father's estate, the son has & power of interdiction (if the father be dissipating the property).
54. The propositions of law as propounded by Vijnaneshwara through the above texts seem to be the following:—
1. It is certain that property in the paternal as well as grand paternal estate arises by birth:
2. Although property arises by birth in paternal as well as in grand-paternal estate, there is the following distinctive peculiarity in them.
(a) In regard to property derived from the grandfather, the father's right of alienation is restrained by the co-equal co-ownership of the son.
(b) In regard to the properties acquired by the father himself the son has no right to object to the father's alienation but must acquiesce therein:
(i) although he has a right by birth in his father's as well in grandfather's property, still, since he is dependent on his father in regard to the paternal estate and since the father has a predominant interest as it was acquired by himself, the son must acquiesce in the father's disposal of his own acquired property;
(ii) but since both have indiscriminately a right in the grand-father's estate, the son has a power of interdiction if the father be dissipating the property.
55. From the above, two propositions of law seem to follow, viz., that the father's power of alienation without the concurrence of the son is absolutely unrestrained in respect of his-self-acquired property and is absolutely restrained in respect of the grand-paternal properties.
56. Both the propositions, however, would require some qualification, first, with regard to self-acquired immovable and secondly, with regard to grand-paternal movables.
(a) As regards the self-acquired immovables, there is some apparent conflict in the rules given in the Mitakshara: According to Chapter I, sec. V, 10, since the father has a predominant interest as it was acquired by himself, the son must acquiesce in the father's disposal of his own self-acquired property. This is quite general and does not make any distinction as to immovables. According to Chapter I, sec. I, 27, however, the father is subject to the control of his sons in regard to the immovable estate, though acquired by himself: This conflict is reconciled by reading the general rule as subject to the special rule regarding immovables. Thus father's absolute power of alienation in his self-acquisition is limited to properties other than immovables.
As regards immovables his power is restricted.
57. This is what seems to have been the view of Vijnaneshwara. But the rule has been understood in a different way by our Courts of law and it is now settled law that the father has unrestrained power in respect of him self-acquisitions, both movable and immovable: Rao Valwant Singh v. Rani Kishori(9). The passage in the Mitakshara prohibiting the alienation of his self-acquired immovable property by the father without the assent of the sons has been construed as laying down a rule founded merely on moral and religious considerations, carrying with it no legal obligation.
58. Again, while making his own deduction from the text:
59. Vijnaneshwara is not expounding the position of a guardian of an infant owner or of a mere manager. He is discussing the right of disposal of a co-owner as such. Whatever be the practical value of the distinction, he was thinking here of the power of disposal of a co-owner and not of a manager or guardian of an infant.
60. After propounding the proposition that property arises from birth in the paternal as well as in the grand-paternal estates, Vijnaneshwara proceeds to explain to what extent in spite of such co-ownership in sons and grandsons, the property may be disposed of by the father,—father, not as guardian of his son, but as a co-owner.
61. Our Courts of law, however, have developed a different set of propositions. But even if such a proposition be not in strict accordance with the Mitakshara view, it must be taken to be the settled law: Communis error facit legem.
62. While examining the decided cases on the point three things must be kept distinct:—
1. The power of the father
(a) as mere manager or guardian;
(b) as co-owner of the joint property.
2. The power of the father
(a) to make a binding loan;
(b) to dispose of the joint property for the loan.
3. The validating occasion
(a) for loan;
(b) for disposal of the joint property.,
63. As regards the power of the father as the manager of the infant's share or as his guardian, neither the Smriti texts nor the commentaries will be of much assistance. The Hindu Rishis made it a duty of the king to look after the infants' properties and consequently the legal position in this respect must be determined with reference to the principles of justice, equity and good conscience.
64. As regards the guardianship of an infant, the Hindu law vests it in the king as parens patrise.
65. According to Manu
Manu VIII, 27.
66. According to Gautama
Gaitam X, 48.
67. Vasistha says:
68. The King might entrust others with the infants' affairs.
69. According to Narada, of the persons competent to be the guardian, father is the fittest:
70. The father has the first claim; after him comes the mother, and then comes the elder brother. His power as such guardian will be determined by the King and will extend to whatever may be deemed justly required for the benefit of the infant.
71. The power of the father as co-owner and as the managing co-owner is determined by the commentaries. The Mitakshara in Chapter I, paragraphs 27 to 29, makes provisions in this respect. An examination of the decided cases will however disclose that these verses have been taken to contain the rules regarding the power of the father as manager of the estate or as guardian of the infant.
72. The power of the father or grandfather to make a binding loan is now settled by the decision of the Judicial Committee in Brij Narain v. Magla Prosad(10). His power of disposal of the property in satisfaction of or for the purpose of securing the loan taken by him is, however, not co-extensive with the power of making a binding loan. The power of disposal of the family property is limited to certain specified occasions, specified in Mitakshara, Chapter I, Section I, verses 28 and 29.
73. From the above it is clear that the validating occasion for a loan made by the father is much wider than that for creating a right in rem in respect of the joint family property.
74. In Hunooman Persaud Pandey v. Mussumat Babooee Munraj Koonwarev, the Rt. Hon'ble Knight Bruce, L.J, observed:—
“The power of the Manager for an infant heir to charge an estate not his own, is, under the Hindu Law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make in order to benefit the estate, the bona fide lender is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to he averted, or the benefit to he conferred, upon it, in the particular instance, is the thing to be regarded. But, of course, if the danger arises or has arisen from any misconduct to which the lender is or has been a party, he cannot take advantage of his own wrong, to support a charge in his own favour against the heir, grounded on a necessity which his wrong has helped to cause. Therefore, the lender in this case, unless he is shown to have acted mala fide, will not be affected, though it be shown that, with better management, the estate might have been kept free from debt. Their Lordships think that the lender is bound to inquire into the necessities for the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing, that the Manager is acting in the particular instance for the benefit of the estate. But they think that if he does so inquire, and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge, and they do not think that, under such circumstances, he is bound to see to the application of the money. It is obvious that money to be secured on any estate is likely to bo obtained on easier terms than a loan which rests on mere personal security, and that, therefore, the mere creation of a charge securing a proper debt cannot be viewed as improvident management; the purposes for which a loan is wanted are often future, as respects the actual application, and a lender can rarely have, unless he enters on the management, the means of controlling and rightly directing the actual application. Their Lordships do not think that a bona fide creditor should suffer when he has acted honestly and with due caution, but is himself deceived.”
75. It should be remembered that in this case their Lordships were considering— (1) the binding effect of a mortgage bond executed by the Ranee in the character of guardian of the infant, (2) the binding nature of certain debts, antecedent to the bond.
76. As regards the binding character of a debt as such, the text in the Mitakshara has no direct bearing.
77. As regards the bond the Ranee was not a co-owner or co-parcener with the infant; consequently, strictly speaking, the texts of the Mitakshara in Chapter I, Section 1 did not apply to this case and their Lordships did not refer to these texts. It has, however, been observed by the Judicial Committee in the Benares Bank v. Hart Narain that the judgment in Hunooman Persaud's case was founded apparently on these verses.
78. In The Benares Bank, Ltd. v. Hari Narain, the Rt. Hon'ble Sir Dinshah Mulla in delivering the judgment of the Judicial Committee observed:
“Next it was argued that a business started by the father as manager, even if new, must be regarded as ancestral. Their Lordships do not agree. It is in direct opposition to the ruling of the Board in Sanyasi Charan Mandal v. Krishnadhan Banerji(11). The judgment in that case proceeded on the broad ground that the manager of a joint family has no power to impose upon a minor member of the family the risk and liability of a new business started by him. That, no doubt, was a Dayabhaga case, but there is no distinction in principle on this subject between a case under the Dayabhaga and one under the Mitakshara. The power of the manager of a joint family governed by the Mitakshara law to alienate immovable property belonging to the family is defined in verses 27 to 29, Chap. 1 of the Mitakshara. The judgment of the Board in Hunooman Persuad Panday v. Mt. Babooee Munraj Koonwaree relied on by the bank, was founded apparently on those verses. A new business, their Lordships think, is not within the purview of those verses. It does not make any difference that the manager starting the new business is the father. Their Lordships find that the balance of authority in India is in accordance with this view.”
79. It may be pointed out that these observations were made while considering the validity or otherwise of a mortgage, a part of the consideration for this being an item of loan for a new business (theka business) started by the father. The minor members who were minors also at the date of the mortgage, contested the claim. The necessity created by the new business was considered as not a necessity contemplated by the verses. The question whether a father can start a fresh business or not, of course, is not covered by any text. In Sannyasi Charan's case, their Lordships of the Judicial Committee had before them the question how far a co-parcener can bind an infant by starting a new business. But in neither case it has been decided what will be the position if the business be adopted (as in the present) as a family business and the minors even after attaining majority continue to enjoy the benefit of the same and claim it as their joint business. In my judgment in such a case its requirements will be requirements of the family and will be covered by the verses.
80. In Niamat Rai v. Dindayal(12), Sir John Wallis observed:—
“Where there is a joint family business the manager, as already pointed out, has authority to raise money not only for the payment of debt, tout also for the purpose of carrying on the business. The, learned Judges of the High Court were of opinion that, as in this case the business had recently resulted in loss, the managing member was not justified in putting more money into it, and that in any case he should have raised money by mortgage instead of toy sale. As regards the latter question, it is not clear that borrowing, probably at a high rate of interest, would have been more beneficial than sale. In any ease this was a question for the manager to decide. It was equally a question for the manager whether it would be better to raise more money or to close down the business and it would, in their Lordships' opinion, be unreasonable to require a lender or purchaser to go into questions of this kind, as to which he would rarely foe in a position to form a sound opinion”.
81. Vijnaneshwara explains the words:
and thus
82. The expression explained by Vijnaneshwara as i.e, as required for maintaining, the family, has somewhat been extended by judicial interpretation so as to include the cases of “benefit of the estate” or “benefit of the family.” The expression, literally construed, would bear this meaning. Literally, it may mean “for the sake of the family” and might have been used to limit the power to the cases of family requirements as distinguished from the individual requirements of the head. The expression would embrace not only the case of immediate necessity but also of benefit. The present benefit is indeed a provision for future need. The Smriti text itself seems to be the product of an age when the problem had already arisen of combining the free use of power and individual initiative with their control in the interests of the family—of giving scope and yet preventing the evil arising from any possible irresponsibility. If the power of disposal is withdrawn from the cases of self-requirement of the co-owner but is extended to the cases of family requirements, the chance of its irresponsible exercise is eliminated to a great extent. The entire verse has now been taken to cover also the case of an expenditure for the family benefit.
83. Thus in Sahu Ram Chandra v. Bhup Singh, Lord Shaw in delivering the judgment of the Judicial Committee observed:
“The mortgager was the Defendant Bhup Singh. His sons and grandsons were also Defendants. Under the Mitakshara law they are, as members of a joint family, coparceners in the ownership of the property over which the mortgage was granted. It is well to keep the general principle applicable to such a situation in mind. There have been so many decisions by Courts of law on the exception to the principle that the principle itself has been apt to be forgotten,
“Under the law of the Mitakshara the joint family property owned, as stated by all the members of the family as coparceners, cannot be the subject of a gift, sale or mortgage by the coparcener except with the consent, express or implied, of all the other coparceners. Any deed of gift, sale, or mortgage granted by one coparcener on his own account of or over the joint family property is invalid; the estate is wholly unaffected by it, and its entirety stands free of it. The rule of the Mitakshara is clear (cl. 1, sec. 1, V. 27) even the father “is subject to the control of his sons and the rest in regard to the immovable estate, whether acquired by himself or inherited from his father or other predecessor; since it is ordained ‘though immovables or bipeds have been acquired by a man himself a gift or sale of them should not made without convening all the sons’”.
“The law of the Mitakshara has, however, given to the father in his capacity of manager and head of the family certain powers with reference to the joint family property, the general principle in regard to that matter is that he is at liberty to affect or to dispose of the joint property in respect of purposes denominated necessary purposes. The principle in regard to this is analogous to that of the power vested in the head of a religious endowment or math, or in the guardian of an infant family. In all the cases where it can be established that the estate itself that is under administration demanded, or the family interests justified, the expenditure, then those entitled to the estate are bound toy the transaction. It is not accurate to describe this as either inconsistent with or an exception to the fundamental rule of the Mitakshara. For where estate or family necessity exists, that necessity rests upon the coparceners as a whole, and it is proper to imply a consent of all of them to that act of the one which such necessity has demanded.
“This view is in no way novel. In Suraj Bunsi Koer v. Sheo Proshad Singh(13), Sir James Colvile said: ‘All are agreed that the alienation of any portion of the joint estate, without such express or implied authority, may be impeached by the coparceners, and that such an authority mill be implied, at least in the casts of minors, if it can be shown that the alienation was made by the managing member of the family for legitimate family purposes. It is not so clearly settled whether, in order to bind adult coparceners, their express consent is not required. But for the exception immediately to be noted, these two principles would cover the ground, and it would be clear that if the father of a family purported or presumed to mortgage or sell the joint family estate the mortgage or sale would be entirely ineffectual.”
84. It may only be noticed here that the limited power of disposal given to the father is looked upon by Vinaneshwara himself as an exception to the fundamental principle. In Palaniappa Chetty v. Deivasikamony Pandara, Lord Atkinson observed:—
“It is necessary in order to ascertain the sense in which such general and elastic terms as ‘necessity’ and “benefit of the estate” were used in these authorities to examine the facts in reference to which the terms were used. In the first ease a certain mortgage executed by a Ranee in her character, as was found, of the guardian of her infant son and manager of his estates was impeached. By it those estates were charged with the payment of a debt due by the deceased father of the infant to the mortgagee and already secured upon the property, and also charged with the payment of a sum advanced by the mortgagee to be applied in payment of the arrears of revenue due to the Government in respect of these estates, and thus save them from sequestration. There was no suggestion that the debt of the infant's father was contracted for illegal or immoral purposes. It was not disputed that according to Hindu law a son is bound to pay his father's debts if not of that character, and that the ancestral property descending to the son may be charged by him with payment of them. It is clear that no greater benefit could well be conferred upon an estate than to save it from extinction by sequestration; the payment of the are years of revenue by the mortgagee was therefore in the nature of salvage expenditure. The case was not finally decided by the Board. It was sent back to the Court below for further inquiry on some of the many points raised; but to prevent a further miscarriage Knight Bruce, L.J, thought it right to state the general principles to be applied to its final decision. His words so much relied upon run as follows: ‘The power of the manager for an infant heir to charge an estate not his own is under the Hindu law a limited and qualified power. It can only be exercised rightly in a ease of need or for the benefit of the estate. But where, in the particular instance the charge is one that a prudent owner would make in order to benefit the estate the bona fide lender is not affected by procedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it in the particular instance, is the thing to be regarded’. He continues: ‘Their Lordships think that the lender is bound to inquire into the necessities for the loan, and to satisfy himself, as well as he can, with reference to the parties with whom ho is dealing, that the manager is acting in the particular instance for the benefit of the estate. But they think that, if he does so inquire and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his change and they do not think that under such circumstances he is bound to see to the application of the money.”
85. This was the case of sale of an idol's property by its shebait and certainly the Mitakshara verses had no direct application.
86. Referring to Prosunno Kumari Debya v. Golab Chand Baboo, Konwar Doorga Nath Roy v. Ram Chunder Sen and Hunooman Prosad Panday v. Munraj Konwaree, Lord Atkinson observed:—
“So that the only specific point touching the present case actually derided in these three authorities was this, that a debottar estate may be mortgaged to secure the repayment of money borrowed and applied to prevent its own extinction by sequestration. No indication is to be found in any of them as to what is, in this connection, the precise nature of the things to be included under the description ‘benefit to the estate’. It is impossible, their Lordships think, to give a precise definition of it applicable to all cases, and they do not attempt to do so. The preservation, however, of the estate from extinction, the defence against hostile litigation affecting it, the protection of it or portions from injury or deterioration by inundation, these and such like things would obviously be benefits, The difficulty is to draw the line as to what are, in this connection, to be taken as benefits and what not”.
87. The three illustrations of benefit will be covered by the expression . In order to come within the other expression it may rightly be contended that the occasion need not be similar to any of those enumerated by the Judicial Committee in this case.
88. It has been pointed out above that the expression can convey the meaning of “For the sake of Kutumba.” Vijnaneshwara himself however took it to mean required for maintaining the Kutumbas or members of the family. All the three expressions and according to Vijnaneshwara, convey the sense of “necessity.” Father's power of disposal for the “benefit of the estate” or the “benefit of the family” is an extension beyond what is conferred on him by the verse (Mitakshara, Chapter I, Section I, paragraphs 27 to 29). A new content has thus been poured into the old norm expressed by the verse and with due deference, I would say, very justly: The conditions of modern life are not the same as in the days of Vrihaspati or Vijnaneshwara and with all these changes it is difficult to turn a deaf ear to voices unless they come from the tomb.
89. The relevant propositions that may be said to have been now established by the judicial decisions may thus be summarised:—
1. The power defined in Chapter I, Section 1, paras. 27, 28 and 29, of the Mitakshara is now taken to be the power of the manager of a joint family governed by the Mitakshara law to slienate immovable property belonging to the family.
2. The decision of the Judicial Committee in Hunooman Persaud Pandey's case is founded on these verses [Benares Bank v. Hari Narayan].
3. The power conferred by the verses is wide enough to include the case of expenditure made “in the interest and for the benefit” of the joint family. The expression which means “for the sake of the family,” is wide enough to cover such cases of benefit.
90. In the case before us the Plaintiff mortgagee asserts that Sitaram Chow-khani as karta of the joint family borrowed Rs. 25,000 from them on the bond in suit in the interest and for the benefit of the joint family.
91. The money borrowed was spent for the requirements of the mortgaged tea garden admittedly belonging to the joint family, and the interests of the family justified the expenditure. It has been established in this case that the family was in need of money for the purpose of the tea garden and it is also the case of the Defendant that money had to be borrowed for this purpose. But his case is that it was borrowed from another source (viz., from his cousins). The Court below could not accept this defence story and we too have felt the same difficulty.
P.C