Ramkisan Bholaram Shop, Akola v. Shioram Kisanrao And Others

1. Yeshwant Rao, who is the natural brother of the defendant Kisanrao, was given in adoption to one Uttamrao and inherited Uttamrao's estate. For a time Yeshwant Rao managed both his own estate and that of his natural brother Kisanrao, while Kisanrao was a minor. On 16th April 1910 Yeshwantrao mortgaged his own fields as security for a loan of Rs. 3,000 taken from Ganu Purnaji, and it is alleged that this money was borrowed “for the management of the estate of himself and of Kisanrao who was a minor then.” Ganu Purnaji brought a suit on his mortgage against Yeshwant Rao alone and obtained a decree on 22nd April 1924. On 15th February 1926, Yeshwant Rao and Kisanrao borrowed Rs. 4,000 from the defendant Ramkisan on the security of two fields belonging to Yeshwant Rao and four fields belonging to Kisanrao. It is alleged that out of this sum Rs. 1,000 was advanced to Kisanrao for cultivation expenses, and Rs. 3,000 was utilized in part payment of Ganu Purnaji's mortgage decree on which about Rs. 7,000, was then due. Ramkisan sued on his mortgage and obtained a decree for foreclosure against Yeshwant Rao and Kisanrao. The plaintiffs, who are the two sons of Kisanrao, then sued for a declaration that their two-third shares in the four fields mortgaged by Kisanrao were not bound by this decree.

2. There is no evidence to show that there was any need in 1910 for Yeshwant Rao to borrow money for the management of Kisanrao's estate, and the mortgagee of 1910 sued Yeshwant Rao alone. Kisanrao therefore was not liable on that decree, and therefore there was no debt outstanding against Kisanrao in 1926 when he and Yeshwant Rao borrowed Rs. 4,000, of which Rs. 3,000 is said to have gone in part payment of the earlier mortgage.

3. There is also a finding that there is no evidence to show that Kisanrao required to borrow Rupees 1,000, for cultivation expenses. On these findings it follows that Kisanrao executed mortgage in 1926 neither for legal necessity nor for payment of an antecedent debt.

4. Of the four fields mortgaged by Kisanrao two were admittedly joint family property. The lower appellate Court's finding that the other two were acquired out of the savings from the income of the ancestral fields, and were the joint family property of Kisanrao and his sons, has not been challenged in this Court. It must therefore be taken that all the fields mortgaged by Kisanrao were joint family property. It has however been argued that Kisanrao's sons cannot challenge the mortgage decree against Kisanrao unless they can show that the money was borrowed for immoral purposes. For this proposition the appellant Ramkisan relies on the decision in 47 All 122(1). In 46 All 95(2), the Privy Council laid down the following propositions:

(1) The managing member of a joint undivided estate cannot alienate or burden the estate qua manager except for purposes of necessity: (2) if he is the father and the other members are the sons he may, by incurring debt, so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceeding upon a decree for payment of that debt; (3) if he purports to burden the estate by mortgage, then unless that mortgage is to discharge an antecedent debt, it would not bind the estate.

5. The other two propositions are not relevant to this case. In 47 All 122, a Bench of two Judges held that the word “debt” in the second proposition includes a “mortgage debt” and that, where the father of a joint Hindu family has executed a mortgage of joint ancestral property, the sons could not challenge that decree without showing that the debt of the father was tainted with immorality. That decision was considered in 51 All 136(3) by a Bench of three Judges, two of whom had decided the previous case. A majority of the Judges held that the word “debt,” in the second proposition did not include a “mortgage-debt,” and all three held that the second proposition did not apply when no auction-sale had taken place and no property had passed out of the family. I respectfully agree with the view taken by Mukerji, J., who had previculy taken the opposite view, and Boys, J., that the word “debt” in the second proposition does not include a “mortgage-debt” and that the effect of the first and third propositions is that the estate cannot be bound by a mortgage executed by the father unless the mortgage was executed for purposes of necessity or to discharge an antecedent debt, as the mortgage in the present suit was not executed for either purpose, it must be held that it is not binding on the shares of the sons of Kisanrao. The appeal therefore fails and is dismissed.

V.B/R.K

6. Appeal dismissed.