Authored By : Syed Nasim Ali, Pal

Syed Nasim Ali, J.

1. The facts which are not in dispute in this appeal arethese : One Sitaram Chowkhani was the karta of a Mitakshara undivided jointHindu family consisting of himself and his two sons. This family carried on abusiness under the name and style of "Sitaram Budhkaran" and acquiredvarious properties including a tea estate known as Gograjan Tea Estate inDibrugarh within the Province of Assam. Sitaram as karta of this joint familywas in charge of the management of the joint family business "SitaramBudhkaran" and other properties belonging to the joint family. On 28thSeptember 1926, he borrowed Rs. 25,000 with interest at 10 per cent per annumfrom the plaintiffs on the mortgage of the Gograjan Tea Estate. In the mortgagebond (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 19thMarch 1928, the mortgagor paid Rs. 2794-12-0 towards interest due on themortgage debt. On 6th March 1934 the firm "Sitaram Budhkaran" wroteto the mortgagee a letter (Ex. 2) stating that they had not been able to makeany arrangement for the payment of the mortgage money. Rs. 2000 was paid asinterest for the loan on 5th June 1934. The mortgagor died on 15th February1936. On 30th March 1936, his eldest son, defendant 1 on behalf of the firm"Sitaram Budhkaran" signed a memorandum of accounts (Exs. 6, 6 (1)and 6-B) acknowledging the liability under the said mortgage bond for a sum ofRs. 53,181 upto 30th March 1936 including interest at the stipulated rate afterdeduction of all payments made up to that date. On 1st June 1936, a letter (Ex.3) was written by the firm "Sitaram Budhkaran" to the mortgageeinforming them that they were trying to procure money for paying off the mortgagedebt and that if they would succeed they would pay off the amount. On 4thDecember 1936, the firm "Sitaram Budhkaran" supplied to the mortgageetimber worth Rs. 103-3-3 and this amount was credited towards the interest onthe mortgage debt. On 23rd December 1936, the mortgagees raised the presentsuit against the two sons of Sitaram Chowkhani (defendants 1 and 2) and the twosons of defendant 1 (defendants 3 and 4) for recovery of Rs. 25,000 asprincipal and Rupees 25,000 as interest on the basis of the mortgage bondexecuted in their favour by Sitaram Chowkhani on 28th September 1926.

2. The case of the plaintiff mortgagees is that SitaramChowkhani as karta of the joint family borrowed Rs. 25,000 from them on thebond in suit in the interest and for the benefit of the joint family. Defendant2 did not appear. The suit was contested by defendant 1 on his own behalf andon behalf of his minor sons defendants 3 and 4. Their defence is that SitaramChowkhani did not borrow the money on the bond in suit in the interest or forthe benefit of the joint family as alleged by the plaintiffs. Their casefurther is that he borrowed the said money not as karta of the joint family butin his personal capacity for the purchase of a tea estate called Molan TeaEstate in partnership with two other persons who were strangers to the family.The trial Judge has found that Sitaram Chowkhani borrowed Rs. 25,000 on thebond in suit as karta of the joint family and that the loan was taken in theinterest and for the benefit of the joint family, that the mortgage wasratified by defendants 1 and 2 and that the plaintiffs were entitled to getRupees 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 withproportionate costs. Hence this appeal by the defendants. The power of themanager of a joint family governed by the Mitakshara law to alienate immovableproperty belonging to the family is defined in the following verses of Chap. I,section 1 of the Mitakshara:

27. Therefore it is a settled point, that property in thepaternal or ancestral estate is by birth, (although) the father haveindependent power in the disposal of effects other than immovables, forindispensable acts of duty and for purposes prescribed by texts of law, asgifts through affection, support of the family, relief from distress, and soforth; but he is subject to the control of his sons and the rest, in regard tothe immovable estate whether acquired by himself or inherited from his fatheror other predecessor; since it is ordained, "Though immovables or bipedshave been acquired by a man himself, a gift or sale of them should not be madewithout convening all the sons. They, who are born, and they who are yet to bebegotten, and they who are still in the womb, require the means of support, nogift or sale should, therefore, be made."

An exception to it follows :

28. Even a single individual may conclude a donation,mortgage or sale, of immovable property, during a season of distress, for thesake of the family, and especially for pious purposes.

29. The meaning of that text is this : while the sons andgrandsons are minors, and incapable of giving their consent to a gift and thelike : or while brothers are so and continue unseparated; even one person, whois capable, may conclude a gift, hypothecation, or sale, of immovable property,if a calamity affecting the whole family require it, or the support of thefamily render it necessary, or indispensable duties, such as the obsequies ofthe father or the like, make it unavoidable.

3. The judgment of the Judicial Committee in (1854) 6 M.I.A.393 : 18 W.R. 81 : 2 Suther 29 : 1 Sar 552 (P.C.), Hunooman Persaud Pandey v.Mt. Babooee Munraj Koonweree was apparently founded on these verses ((32) 19: A.I.R. 1932 P.C. 182 : 137 I.C. 781 : 54 All. 564 : 59 I.A.300 (P.C.), Benares Bank Ltd. v. Hari Narain at pp. 305, 308). The expression"in case of need" in this judgment may be traced to the words "duringa season of distress" in verse 28 and the expression "for the benefitof the estate" to the words "for the sake of the family" in thesaid verse (Mullas Hindu Law, Edn. 9, p. 275). In (17) 4 A.I.R. 1917 P.C. 33: 39 I.C. 722 : 40 Mad. 709 : 44 I.A. 147 (P.C.), Palaniappa Chetty v.Devasikamony Pandara Lord Atkinson said:

No indication was to be found in any one of them ( (1854) 6M.I.A. 393 : 18 W.R. 81 : 2 Suther 29 : 1 Sar 552 (P.C.), Hunooman PersaudPandey v. Mt. Babooee Munraj Koonweree at p. 423, (74) 2 I.A. 145 : 23 W.R.253 : 14 Beng. L.R. 450 : 3 Sar. 449 : 3 Suther. 102 (P.C.), Prasanna KumariDebya v. Golab Chand Baboo, (76-77) 2 Cal. 341 [LQ/CalHC/1973/70] : 4 I.A. 52 : 3 Sar. 681 : 3Suther. 375 (P.C.), Konwar Doorga Nath v. Ram Chunder Sen) as to what is, inthis connexion, the precise nature of the things to be included under thedescription benefit to the estate. It is impossible, their Lordships think,to give a precise definition of it applicable to all cases, and they do notattempt to do so. The preservation, however, of the estate from extinction, thedefence against hostile litigation affecting it, the protection of it orportions from injury or deterioration by inundation, these and such like thingswould obviously he benefits, The difficulty is to draw the line as to what are,in this connexion, to be taken as benefits and what not.

In (17) 4 A.I.R. 1917 P.C. 61 : 39 I.C. 280 : 39 All. 437 :44 I.A. 126 (P.C.), Sahu Ram Chandra. v. Bhup Singh Lord Shaw said:

Under the law of the Mitakshara, the joint family propertyowned, as stated by all the members of the family as coparceners, cannot be thesubject of a gift, sale or mortgage by one coparcener except with the consentexpress or implied, of all the other coparceners. Any deed of gift, sale ormortgage granted by one coparcener of his own account of or over the jointfamily property is invalid; the estate is wholly unaffected by it, and itsentirety stands free of it. The rule of the Mitakshara is clear (C. 1. s. 1. v.27); even the father is subject to the control of his sons and the rent inregard to the immovable estate, whether acquired by himself or inherited fromhis father or other predecessor; since it is ordained though immovables orbipeds have been acquired by a man himself a gift or sale of them should not bemade without convening all the sons.

The law of the Mitakshara has, however, given to the fatherin his capacity of manager and head of the family certain powers with referenceto the joint family property. The general principle in regard to that matter isthat he is at liberty to affect or to dispose of the joint property in respectof purposes denominated necessary purposes, The principle in regard to this isanalogous to that of the power vested in the head of a religious endowment ormath, or in the guardian of an infant family. In all of the cases where it canbe established that the estate itself that is under administration demanded, orthe family interests justified, the expenditure, then those entitled to theestate are bound by the transaction. It is not accurate to describe this aseither inconsistent with or in exception to the fundamental rule of theMitakshara. For where estate or family necessity exists, that necessity restsupon the coparceners as a whole, and it is proper to imply a consent of all ofthem to that act of the one which such necessity has demanded.

4. The answer to the question as to whether the alienationby the karta of the joint family was "for the sake of the family" or"for the benefit of "the estate" or "for familyinterests" would depend on the facts of each particular case. Exhibits 2,6, 6 (1), 6 (b) and 3 show that the mortgagor and after his death defendant 1treated the debt as the debt of their joint family business"Sitaram-Bodhkaran." This joint family business however was not anancestral business of Sitaram. It was started by him while his eldest son(defendant 1) was a mere boy. At the time of the mortgage, defendant 1 was 24years old and defendant 2 was 16 years old. A new business is not within thepurview of verses 27 to 29 of Chap. 1 of the Mitakshara ((32) 19: A.I.R. 1932 P.C. 182 : 137 I.C. 781 : 54 All. 564 : 59 I.A.300 (P.C.), Benares Bank Ltd. v. Hari Narain at p. 308).

5. In their plaint the mortgagees simply stated that theloan was taken in the interest and for the benefit of the joint family. How theloan benefited the joint family was not stated in the plaint. The defendants intheir written statement denied the allegation of the plaintiffs that the loanwas taken in the interest and for the benefit of the joint family. The issuesin the suit were settled on 18th March 1937. On 9th November 1937, theplaintiffs summoned the defendants to produce in Court all the account hooks ofthe firm "Sitaram Bodhkaran" from 1923 to 1937 and the cash book ofthe mortgaged tea estate. On 19th November 1937, defendant 1 filed anapplication before the trial Judge stating that some of the account books wereonce removed from their shop by his father to his country home in Rajputana inconnexion with a claim against one Dedraj Ramballav. On 20th November 1937, theplaintiffs filed an application before the trial Judge stating inter alia thatthe account books of the joint family concern "Sitaram Bodhkaran"would show that the amount of the mortgage bond was taken for the purposes andbenefit of the joint family, that the defendants were in possession of theseaccount books and that they were withholding them on flimsy excuses. On 22ndJanuary 1938, the plaintiffs again applied to the trial Judge for an order uponthe defendants to produce the account books before the hearing of this suit fortheir inspection. On 24th January 1938, the trial Judge ordered the defendantsto produce the documents in Court for inspection of the plaintiffs. Thedefendants however did not produce these documents. The hearing of the suitcommenced on 4th February 1938. On that date plaintiff 1 Thakur Prasad Shahgave his evidence. In his examination in chief he said: "The loan wastaken to spend in the garden and on timber business and on their shopbusiness," In cross-examination he stated:

I did not ask for account from them to show how the moneywas spent by them nor did I look into their account. Sitaram and Bodhkaran(defendant 1) both said that they were spending the money in the garden.

6. Bothram gave his evidence on 8th February. In hisevidence he did not deny the statement of plaintiff 1 that he told him that themoney raised was being spent for the garden. He, however, in his evidencestated that the money raised by the mortgage was not spent on the tea garden.In his cross-exanimation defendant 1 admitted that the expenses incurred on thetea garden were entered in the hooks of their joint family business"Sitaram Bodhkaran" and that that business was still a runningbusiness. P. W. 4 who was admittedly the manager of the Gogarjan Tea Estatefrom 1925 to 1929 in his evidence said that all money for the garden (GogarjanTea Estate) was taken from Sitaram Bodhkaran firm. There cannot be any doubttherefore that the money spent for running the mortgaged tea garden wassupplied from the joint family firm Sitaram Bodhkaran and was entered in theaccount books of this firm.

7. It can be reasonably inferred from Exs. 2, 6 and 3 thatthe sum of Rs. 25,000 which was borrowed by Sitaram was entered in the accountbooks of the firm Sitaram Bodhkaran. Defendant 1 in his evidence stated thatmoney required for running the mortgaged tea garden in the year 1926 wasobtained from his cousins. This evidence shows that in 1926 they had notsufficient money for running the tea garden. The several applications filed bythe plaintiff before the hearing of the suit clearly show that the defendantshad sufficient notice of the plaintiffs case that the loan was spent for runningthe mortgaged tea garden. Apparently, the plaintiffs called for the cash bookof the mortgaged tea garden and the account books of the firm Sitaram Bodhkaranto show the amount of money which was spent after the mortgage for running thetea garden and also to show the source from which that money came. Thedefendants in their written statement said that the money raised on themortgage was spent for purchasing another tea garden, namely, Mullen Tea EstateDefendant 1 in his evidence, however, simply stated that his father purchasedthe Mullen Tea Estate jointly with Surajmal and Hunuman Bux. He, however, didnot say that the mortgage money was spent by his father for purchasing theMullen Tea Estate. In his evidence defendant 1 said that in 1926 the expensesfor running the mortgaged tea estate were met by loan from his cousins and thatthe money raised on the mortgage bond in suit was not spent for the mortgagedgarden. The best evidence to substantiate these statements of defendant 1 arethe account books called for by the plaintiffs from the defendants. Sitaram isdead. It has been already stated that Bodhkaran did not deny the statement ofplaintiff 1 that he told him that the money was spent for the garden. In orderto show that the admission by Sitaram and Bodhkaran to plaintiff 1 that themoney was being spent for running the garden was true plaintiffs called for theaccount, books from the defendants. The defendants, how ever, refused toproduce the account books on flimsy grounds. The onus is no doubt on theplaintiffs to show that the money raised on the mortgage was spent for runningthe garden. In (17) 4 A.I.R. 1917 P.C. 6 : 39 I.C. 659 : 40 Mad. 402 : 44 I.A.98 (P.C.), Murugesam Pillai v. Gnanasambandha Pandara Sannadhi Lord Shaw said:

A practice has grown up in Indian procedure of those inpossession of important documents or information lying by, trusting to theabstract doctrine of the onus of proof, and failing, accordingly to furnish tothe 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 thesuit; but with regard to the parties to the suit it is, in their Lordshipsopinion, an inversion of sound practice for those desiring to rely upon a certainstate of facts to withhold from the Court the written evidence in theirpossession which would throw light upon the proposition. The present is a goodinstance of this bad practice. It is proved in the case by the first witnessthat 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 inthe possession of the defendants or those of them who were heads of theinstitution and they are not put in evidence. The proposition that thesedefendants challenged was that the expenses incurred had been incurred for the(sic)ath and were necessary for its purposes. The best assistance to a Court ofjustice would have been a scrutiny of these documents, and their Lordships feelfree to conclude that if they had been by their entries confirmatory of thedefendants view the defendants would have brought them into Court.

8. The observations of Lord Shaw apply to the facts in thepresent case. Plaintiff 1 in his evidence said that both Sitaram and defendant1 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 1 wasfalse 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 thestatement of plaintiff 1 that Sitaram and defendant 1 admitted that the moneyborrowed was being spent for the garden. From the withholding of the accountbooks called for by the plaintiffs it would not be unreasonable to presume thatif the account books had been produced that would have shown that the entireamount raised by the mortgage was spent for running the tea garden. In view ofthe facts and circumstances of this case, we are of opinion that the moneyraised with mortgage in suit was spent for running the mortgaged tea garden.This tea garden is admittedly a joint family property. The evidence ofdefendant 1 is that at the time of the mortgage, tea was being grown over 60 to70 acres of land in this garden and that 500 to 550 maunds of tea were used tobe manufactured in the garden factory. To maintain the garden and factoryevidently money was necessary. Money being not available for maintaining thegarden which was a source of income to the joint family Sitaram bad to borrowmoney from the plaintiffs. We therefore hold that interests of the joint familyjustified the expenditure of the money raised by loan on the mortgage bond insuit and that all the members of the joint family are bound by thistransaction. The trial Judge was therefore right in decreeing the suit.

9. In the decree passed by the trial Judge there is adirection that if the money realised by the sale of the mortgaged property benot sufficient for payment of the decrial amount plaintiff shall be at libertyto apply for a personal decree against the defendants for the balance. Thelearned advocate appearing for the plaintiff-respondents conceded that thedefendants were not personally liable for the mortgage money and that the trialJudge was wrong in passing a personal decree against the defendants for thebalance. The personal decree against the defendants is therefore set aside.Subject to this modification the decree of the trial Judge is affirmed and theappeal is dismissed with costs to the plaintiff-respondents. Hearing fee isassessed at 5 gold mohurs.

Pal, J.

10. I agree that this appeal should be dismissed and Irespectfully concur in the views of the law and of the fact taken by my learnedbrother. I would only add a few words. Property is not an institution having afixed form constantly remaining the same. In reality it has assumed the mostdiverse forms and is still susceptible of great and unforeseen modifications.What is the best form of property at any given moment we can only learn fromthe study of mans nature, of his wants and sentiments and the ordinaryconsequences of his acts. In the Sanskrit language, in which etymologies oftendisclose a complete philosophy, the words for property and ownership are and and these involve a certain relation between persons and things. Itwill serve no useful purpose to examine how far the Smriti texts relied on byVijnaneshwara support the propositions laid down by him. As was pointed out bythe Judicial Committee in (67-69) 12 M.I.A. 397: 10 W.R. 17 : 1 Beng.L.R. 1 :2 Suther 135 : 2 Sar. 361 (P.C.), Collector of Madura v. Mootoo Ramalinga atpp. 435-436 the duty of a Judge while administering Hindu law "is not somuch to inquire whether a disputed doctrine is fairly deducible from theearliest authorities (Smritis), as to ascertain whether it has been received bythe particular school which governs the district with which he has to deal, andhas there been sanctioned by usage. For, under the Hindu system of law, clearproof of usage will outweigh the written text of the law."

11. The commentators, while professing to interpret the lawlaid down in the Smritis, really expounded the customs and usages which theyfound prevailing in the locality. This is why their interpretations have beenaccepted as authoritative and it is no longer permissible to go beyond suchinterpretations to the original Smriti texts, The Smriti texts seem to refer toan age when property was still primarily and essentially a group affair. In itsorigin, its force, its continuance as property, it was still chiefly anexercise of group energy. The operation of a group function securing theattachment of the members is perhaps the most primary aspect of property whichwe can distinguish. It is an attribute of self conscious persons to desireobjective possessions in exclusion of all other possessing. Guarantee of thisdesire to a degree, and in certain forms, in enforcing as property certainclaims to possession, is a part of the price which the group pays for itscontinuance as a group. When the family becomes certain and establishes itselfits members take to the cultivation of land and later make the beginning ofownership, which appears as a collection of means suitable to the preservationand development of that collective body. Ownership in a family undergoesmodification according to the nature and purpose of the family itself, which isan interpenetration of persons, a communion of sentiments, affections, ideasand wills. A sort of co-ownership is bound to arise in these circumstances. Thesons, participators in the community, did not acquire upon the death of thefather a new right but merely obtained greater freedom in the administration ofthe goods. In the family there are superiors and inferiors. The inequality doesnot render co-ownership impossible, but only makes the different members enjoyan unequal property right. To the father, that is to the head, belongs thedecision of what are necessary or useful expenses of the family according tothe norm of a wise control.

12. Vijnaneshwara bases property on popular recognitionand advocates what is known as as distinguished from . According to himeveryone ought to have property as it is necessary for his support. For everyman property is a condition of his existence and development. It is based onthe actual nature of man, and should therefore be regarded as an original,absolute right which is not the result of any outward norm, such as occupation,labour or contract. The right springing directly from human nature, the titleof being a man is sufficient to confer a right of property. Vijnaneshwara onlylimits his theory to a son and grandson and confines it within the compass of afamily. The right of property includes the conditions and means for theacquisition, retention and employment of property and comprises at the sametime the judicial actions given to the proper person for the exercise ofownership. After explaining how property is based on popular recognition ,Vijnaneshwara proceeds to examine whether property arises from birth or fromthe death of the prior owner. His conclusion is that property in the paternal and grandpaternal estate is by birth; .

13. Even then the father has independent power in thedisposal of effects other than immovable for indispensable acts of duty and forpurposes prescribed by tests of law, as gifts through affection, support offamily, relief from distress and so forth;



14. After propounding the proposition that property arisesfrom birth in the paternal as well as in the grand-paternal estate,Vijnaneshwara proceeds to explain to what extent, in spite of such co-ownershipin sons and grandsons, the property may be disposed of by the father, father,not as guardian of his sons, but as a co-owner. The co-owner has the duty and,therefore, the power to employ his wealth to satisfy individual needs andespecially his own needs, and to employ his wealth for the development of hisphysical, intellectual and moral forces. The co-owner has the duty andtherefore, the power to employ the property to the satisfaction of the needs ofthe family. But he is subject to the control of his sons and the rest in regardto immovable estate, whether acquired by himself or inherited from his fatheror other predecessor.



15. Since it is ordained "Though immovables or bipedshave been acquired by a man himself, a gift or sale of them should not be madewithout convening all the Sons. They who are born, and they who are yetunbegotten and they who are still in the womb require the means of support, nogift or sale should, therefore, be made.

An exception to it follows:



Even a single individual may conclude a donation mortgage orsale of immovable property during a season of distress for the sake of familyand especially for pious purposes.

The meaning of the text is this:



16. While the sons and grandsons are minors and incapable ofgiving their consent to a gift and the like, or while brothers are so andcontinue un-separated, even one person who is capable, may conclude a gift,hypothecation or sale of immovable property, if a calamity affecting the wholefamily require it, or the support of the family render it necessary, orindispensable duties such as the obsequies of the father or the like, make itunavoidable.



Separated kinsmen, as those who are unseparated, are equalin respect of immovables; for one has not power over the whole to make a gift,sale or mortgage.



This passage from Manu must be interpreted: "Amongunseparated kinsmen, the consent of all is indispensably requisite, because noone is fully empowered to make an alienation, since the estate is in common.



But among separated kindred, the consent of all tends to thefacility of the transaction by obviating any future doubt, whether they beseparate or united.

"It is not required, on account of any want ofsufficient power in a single owner".

and the transaction is consequently valid even without theconsent of separated kinsmen.

In the text which expresses "Land passes by sixformalities; by consent of townsmen, of kinsmen, of neighbours and of heirs andby gift of gold and of water".



Consent of townsmen is required for the publicity of the transactionsince 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 theboundary. The use of the consent of kinsmen and of heirs has been explained.



In respect of the right by birth, to the estate paternal orancestral, we shall mention a distinction under a subsequent test. (Section53). Vijnaneshwara says that although property arises by birth in paternal aswell as in grand-paternal estate, there is a distinctive peculiarity in dealingwith them. The peculiarity referred to is explained by him later on whilecommenting on the sloka.



"For the ownership of father and son is the same inland which was acquired by the grandfather, or in a corrody or in chattels(which belonged to him)." He says :



In such property, which was acquired by the paternalgrandfather, through acceptance of gifts or by conquest or other means (ascommerce, agriculture or service) the ownership of father and son is notorious;and therefore partition does take, place.



For, or because, the right is equal or alike, thereforepartition is not restricted to be made by the fathers choice; nor has he adouble share.

So likewise the grandson has a right of prohibition if hisunseparated father is making a donation, or a sale, of effects inherited fromthe grandfather:



but he has no right of interference, if the effects wereacquired by the father. On the contrary, he must acquiesce, because he isdependant.



17. Consequently the difference is this: although he has aright by birth in his fathers and his grandfathers property, still since heis dependent on his father in regard to the paternal estate and since thefather has a predominant interest as it was acquired by himself, the son mustacquiesce in the fathers disposal of his own acquired property.

18. But since both have indiscriminately a right in thegrandfathers estate, the son has a power of interdiction (if the father bedissipating the property).

19. The propositions of law as propounded by Vijnaneshwarathrough the above texts seem to be the following: 1, It is certain thatproperty in the paternal as well as grand-paternal estate arises bybirth: 2. Although property arises by birth in paternal as well as ingrand-paternal estate, there is the following distinctive peculiarity inthem:-(a) In regard to property derived from the grandfather, the fathersright 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 rightto object to the fathers alienation but must acquiesce therein; (i) althoughhe has a right by birth in his fathers as well in grandfathers property,still, since he is dependent on his father in regard to the paternal estate andsince the father has a predominant interest as it was acquired by himself theson must acquiesce in the fathers disposal of his own acquired property; (ii)but since both have indiscriminately a right in the grandfathers estate, theson has a power of interdiction if the father be dissipating the property.

20. From the above, two propositions of law seem to follow,viz., that the fathers power of alienation without the concurrence of the sonis absolutely unrestrained in respect of his self-acquired property and isabsolutely restrained in respect of the grand-paternal properties. Both thepropositions, however, would require some qualification, first, with, regard toself-acquired immovables and, secondly, with regard to grand-paternalmoveables:

(a) As regards the self-acquired immovable there is someapparent conflict in the rules given in the Mitakshara: According to Chap. 1,S. V, 10, since the father has a predominant interest as it was acquired byhimself the son must acquiesce in the fathers disposal of his ownself-acquired property. This is quite general and does not make any distinctionas to immovables. According to Chap. 1, S. 1, 27, however, the father issubject to the control of his sons in regard to the immovable estate thoughacquired by himself. This conflict is reconciled by reading the general rule assubject to the special rule regarding immovables. Thus, fathers absolute powerof alienation in his self-acquisition is limited to properties other thanimmovables. As regards immovables his power is restricted.

21. This is what seems to have been the view ofVijnaneshwara. But the rule has been understood in a different way by ourCourts of law and it is now settled law that the father has unrestrained powerin respect of his self-acquisitions, both moveable and immovable: (98) 20 All.267 : 25 I.A. 54 : 7 Sar. 279 (P.C.), Balwant Singh v. Rani Kishori. Thepassage in the Mitakshara prohibiting the alienation of his self, acquiredimmovable property by the father without the assent of the sons has beenconstrued as laying down a rule founded merely on moral and religiousconsiderations, carrying with it no legal obligation. Again while making hisown deductions from the text:



22. Vijnaneshwara is not expounding the position of aguardian of an infant or of a mere manager. He is discussing the right ofdisposal 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 amanager or guardian of an infant. After propounding the proposition thatproperty arises from birth in the paternal as well as in the grand-paternalestates Vijnaneshwara proceeds to explain to what extent in spite of suchco-ownership in sons and grandsons, the property may be disposed of by thefather, father, not as guardian of his son, but as a co-owner. Our courts oflaw, however, have developed a different set of proposition. But even if such aproposition be not in strict accordance with the Mitakshara view, it must betaken to be the settled law: Communis error facit legem. While examining thedecided cases on the point three things must be kept distinct : 1. The power ofthe father (a) as mere manager or guardian (b) as co-owner of the jointproperty. 2. The power of the father (a) to make a binding loan (b) to disposeof the joint property for the loan. 3. The validating occasion (a) for loan (b)for disposal of the joint property.

23. As regards the power of the father as the manager of theinfants share or as his guardian neither the Smriti texts nor the commentarieswill be of much assistance. The Hindu Rishis made it a duty of the king to lookafter the infants properties and consequently the legal position in thisrespect must be determined with reference to the principles of justice equityand good conscience. As regards the guardianship of an infant, the Hindu lawvests it in the king as parens patriae.

According to Manu :



Manu VIII, 27

According to Gautama:



Gautam X, 48

Vasistha says:



The king might entrust others with the infants affairs.According to Narada, of the persons competent to be the guardian, father is thefittest:



24. The father has the first claim; after him comes themother, and then comes the elder brother. His power as such guardian will bedetermined by the king and will extend to whatever may be deemed justlyrequired for the benefit of the infant.

25. The power of the father as co-owner and as the managingco-owner is determined by the commentaries. The Mitakshara in Ch. 1 paras. 27to 29 makes provisions in this respect. An examination of the decided caseswill however disclose that these verses have been taken to contain the rulesregarding the power of the father as manager of the estate or as guardian ofthe infant. The power of the father or grandfather to make a binding loan isnow settled by the decision of the Judicial Committee in (24) 11 A.I.R. 1924 P.C.50 : 77 I.C. 689 : 46 All. 95 : 51 I.A. 129 (P.C.), Brij Narain v. ManglaProsad. His power of disposal of the property in satisfaction of or for thepurpose of securing the loan taken by him is, however, not co-extensive withthe power of making a binding loan. The power of disposal of the familyproperty is limited to certain specified occasions, specified in Mitakshara,Chap. 1, S. 1, verses 28 and 29. From the above it is clear that the validatingoccasion for a loan made by the father is much wider than that for creating aright in rem in respect of the joint family property. In (1854) 6 M.I.A. 393 :18 W.R. 81 : 2 Suther 29 : 1 Sar 552 (P.C.), Hunooman Persaud Pandey v. Mt.Babooee Munraj Koonweree at p. 423, the Rt. Honble Knight Bruce L.J. observed:

The power of the manager for an infant heir to charge anestate not his own, is under the Hindu law, a limited and qualified power. Itcan only be exercised rightly in a case of need, or for the benefit of theestate. But where, in the particular instance, the charge is one that a prudentowner would make, in order to benefit the estate, the bona fide lender is notaffected by the precedent mismanagement of the estate. The actual pressure onthe estate, the danger to be averted, or the benefit to be conferred upon it,in the particular instance, is the thing to be regarded. But, of course, ifthat danger arises or has arisen from any misconduct to which the lender is orhas been a party, he cannot take advantage of his own wrong, to support acharge in his own favour against the heir, grounded on a necessity which hiswrong has helped to cause. Therefore the lender in this case, unless he isshown 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. TheirLordships think that the lender is bound to inquire into the necessities forthe loan, and to satisfy himself as well as he can, with reference to theparties with whom he is dealing that the manager is acting in the particularinstance for the benefit of the estate. But they think that if he does soinquire, and acts honestly, the real existence of an alleged sufficient andreasonably credited necessity is not a condition precedent to the validity ofhis charge, and they do not think that, under such circumstances, he is boundto see to the application of the money. It is obvious that money to be securedon any estate is likely to be obtained on easier terms than a loan which restson mere personal security, and that therefore the mere creation of a chargesecuring a proper debt cannot be viewed as improvident management; the purposesfor which a loan is wanted are often future, as respects the actualapplication, and a lender can rarely have, unless he enters on the management,the means of controlling and rightly directing the actual application. TheirLordships do not think that a bona fide creditor should suffer when he hasacted honestly and with due caution, but is himself deceived.

26. It should be remembered that in this case theirLordships were considering-(1) the binding effect of a mortgage bond executedby the Ranee in the character of guardian of the infant, (2) the binding natureof certain debts, antecedent to the bond. As regards the binding character of adebt as such, the text in the Mitakshara has no direct bearing. As regards thebond, the Ranee was not a co-owner or coparcener with the infant; consequently,strictly speaking, the texts of the Mitakshara in Chap. 1, S. 1 did not applyto this case and their Lordships did not refer to these texts. It has howeverbeen observed by the Judicial Committee in (32) 19 : A.I.R.1932 P.C. 182 : 137 I.C. 781 : 54 All. 564 : 59 I.A. 300 (P.C.), Benares BankLtd. v. Hari Narain at p. 308 that the judgment in (1854) 6 M.I.A. 393 : 18W.R. 81 : 2 Suther 29 : 1 Sar 552 (P.C.), Hunooman Persaud Pandey v. Mt.Babooee Munraj Koonweree was founded apparently on these verses. In (32) 19: A.I.R. 1932 P.C. 182 : 137 I.C. 781: 54 All. 564 : 59 I.A.300 (P.C.), Benares Bank Ltd. v. Hari Narain the Rt. Honble Sir Dinshah Mullain delivering the judgment of the Judicial Committee observed:

Next it was argued that a business started by the father asmanager, even if new, must be regarded as ancestral. Their Lordships do notagree. It is in direct opposition to the ruling of the Board in Sanyasi CharanMandal v. Krishnadhan Banerji (22) 9 : A.I.R. 1922 P.C. 237: 67 I.C. 124 : 49 I.A. 108 : 49 Cal. 560 (P.C.) The judgment in that caseproceeded on the broad ground that the manager of a joint family has no powerto impose upon a minor member of the family the risk and liability of a newbusiness started by him. That, no doubt, was a Dayabhaga case, but there is nodistinction in principle on this subject between a case under the Dayabhaga andone under the Mitakshara. The power of the manager of a joint family governedby the Mitakshara law to alienate immovable property belonging to the family isdefined in verses 27 to 29, Chap. 1 of the Mitakshara. The judgment of theBoard in (1854-57) 6 M.I.A. 393 : 18 W.R. 81 : 2 Suther 29 : 1 Sar 552 (P.C.),Hunooman Persaud Pandey v. Mt. Babooee Munraj Koonweree, 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 thatthe manager starting the new business is the father. Their Lordships find thatthe balance of authority in India is in accordance with this view.

27. It may be pointed out that these observations were madewhile considering the validity or otherwise of a mortgage, a part of theconsideration for this being an item of loan for a new business (thekabusiness) started by the father. The minor members who were minors also at thedate of the mortgage contested the claim. The necessity created by the newbusiness was considered as not a necessity contemplated by the verses. Thequestion whether a father can start a fresh business or not, of course, is notcovered by any text. In Sanyasi Charans case (22) 9 :A.I.R. 1922 P.C. 237 : 67 I.C. 124 : 49 I.A. 108 : 49 Cal. 560 (P.C.) theirLordships of the Judicial Committee had before them the question how far acoparcener can bind an infant by starting a new business. But in neither caseit has been decided what will be the position if the business be adopted (as inthe present) as a family business and the minors even after attaining majoritycontinue 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 the requirements of thefamily and will be covered by the verses. In (27) 14 :A.I.R. 1927 P.C. 121 : 101 I.C. 373 : 8 Lah. 597 [LQ/PC/1927/37] : 54 I.A. 211 (P.C.), NiamatRai v. Dindayal

Where there is a joint family business, the manager, asalready pointed out, has authority to raise money not only for the payment ofdebt, but also for the purpose of carrying on the business. The learned Judgesof the High Court were of opinion that, as in this case the business hadrecently resulted in loss, the managing member was not justified in puttingmore money into it, and that in any case he should have raised money bymortgage instead of by sale. As regards the latter question, it is not clearthat borrowing, probably at a high rate of interest, would have been morebeneficial than sale. In any case this was a question for the manager todecide. It was equally a question for the manager whether it would be better toraise more money or to close down the business and it would, in theirLordships opinion, be unreasonable to require a lender or purchaser to go intoquestions of this kind, as to which he would rarely be in a position to form asound opinion.

28. Vijnaneshwara explains the words " and "thus:



29. The expression explained by Vijnaneshwara as i.e., as required for maintaining the family, has somewhat been extended byjudicial interpretation so as to include the cases of "benefit of theestate" or "benefit of the family." The expression literallyconstrued would bear this meaning. Literally, it may mean "for the sake ofthe family" and might have been used to limit the power to the cases offamily requirements as distinguished from the individual requirement of thehead. The expression would embrace not only the case of immediate necessity butalso of benefit. The present benefit is indeed a provision for future need. TheSmriti text itself seems to be the product of an age when the problem bad alreadyarisen of combining the free use of power and individual initiative with theircontrol in the interests of the family-of giving scope and yet preventing theevil arising from any possible irresponsibility. If the power of disposal iswithdrawn from the cases of self-requirement of the co-owner but is extended tothe cases of family requirements, the chance of its irresponsible exercise iseliminated to a great extent. The entire verse has now been taken to cover alsothe case of an expenditure for the family benefit. Thus, in (17) 4 A.I.R. 1917P.C. 61 : 39 I.C. 280 : 39 All. 437 : 44 I.A. 126 (P.C.), Sahu Ram Chandra v.Bhup Singh at page 128, Lord Shaw in delivering the judgment of the JudicialCommittee, observed:

The mortgagor was the defendant Bhup Singh. His sons andgrandsons were also defendants. Under the Mitakshara law they are, as membersof a joint family, coparceners in the ownership of the property over which themortgage was granted. It is well to keep the general principle applicable to sucha situation in mind. There have been so many decisions by Courts of law on theexception to the principle that the principle itself has been apt to beforgotten.

Under the law of Mitakshara the joint family property owned,as stated by all the members of the family as coparceners, cannot be thesubject of a gift, sale, or mortgage by one coparcener except with the consent,express or implied, of all the other coparceners. Any deed of gift, sale, ormortgage granted by one coparcener on his own account of or over the jointfamily property is invalid; the estate is wholly unaffected by it, and itsentirety stands free of it. The rule of the Mitakshara is clear (C. 1, S. 1, V.27); even the father is subject to the control of his sons and the rest in regardto the immovable estate, whether acquired by himself or inherited from hisfather or other predecessor, since it is ordained; though immovables orbipeds have been acquired by a man himself a gift or sale of them should not bemade without convening all the sons.

30. The law of the Mitakshara has, however, given to thefather in his capacity of manager and head of the family certain powers withreference to the joint family property. The general principle in regard to thatmatter is that he is at liberty to affect or to dispose of the joint propertyin respect of purposes denominated necessary purposes. The principle in regardto this is analogous to that of the power vested in the head of a religiousendowment or math, or in the guardian of an infant family. In all of the caseswhere it can be established that the estate itself that is under administrationdemanded, or the family interests justified, the expenditure, then thoseentitled to the estate are bound by the transaction. It is not accurate to describethis as either inconsistent with or an exception to the fundamental rule of theMitakshara. For where estate or family necessity exists, that necessity restsupon the coparceners as a whole, and it is proper to imply a consent of all ofthem to that act of the one which such necessity has demanded.

This view is in no way novel. In Suraj Bunsi Koer v. SheoProshad Singh (80) 5 Cal. 148 [LQ/PC/1879/2] : 6 I.A. 88 : 4 C.L.R. 226 : 3 Suther 589 : 4Sar. 1 (P.C.) Sir James Colvile said: "All are agreed that the alienationof any portion of the joint estate, without such express or implied authority,may be impeached by the coparceners, and that such an authority will beimplied, at least in the case of minors, if it can be shown that the alienationwas 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, theirexpress 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 thefather of a family purported or presumed to mortgage or sell the joint familyestate the mortgage or sale would be entirely ineffectual.

31. It may only be noticed here that the limited power ofdisposal given to father is looked upon by Vijnaneshwara himself as anexception to the fundamental principles. In (17) 4 A.I.R. 1917 P.C. 33 : 39I.C. 722 : 40 Mad. 709 : 44 I.A. 147 (P.C.), Palaniappa Chetty v. DevasikamonyPandara, Lord Atkinson observed:

It is necessary in order to ascertain the sense in whichsuch general and elastic terms as necessity and benefit of the estate wereused in these authorities to examine the facts in reference to which the termswere used. In the first case a certain mortgage executed by a Ranee in hercharacter, as was found, of the guardian of her infant son and manager of hisestates was impeached. By it those estates were charged with the payment of adebt due by the deceased father of the infant to the mortgagee and already securedupon the property, and also charged with the payment of a sum advanced by themortgagee to be applied in payment of the arrears of revenue due to theGovernment in respect of these estates, and thus save them from sequestration.There was no suggestion that the debt of the infants father was contracted forillegal or immoral purposes. It was not disputed that according to Hindu law ason is bound to pay his fathers debts if not of that character and that theancestral property descending to the son may be charged by him with payment ofthem. It is clear that no greater benefit could well be conferred upon anestate than to save it from extinction by sequestration; the payment of thearrears of revenue by the mortgagee was therefore in the nature of salvageexpenditure. The case was not finally decided by the Board. It was sent back tothe Court below for further inquiry on some of the many points raised; but toprevent a further miscarriage Knight Bruce L.J. thought it right to state thegeneral principles to be applied to its final decision. His words so muchrelied upon run as follows; The power of the manager for an infant heir tocharge an estate not his own is under the Hindu law a limited and qualifiedpower. It can only be exercised rightly in a, case of need or for the benefitof the estate. But where, in the particular instance, the charge is one that aprudent owner would make in order to benefit the estate, the bona fide lenderis not affected by the precedent mismanagement of the estate. The actualpressure on the estate, the danger to be averted, or the benefit to beconferred upon it in the particular instance is the thing to be regarded. Hecontinues: Their Lordships think that the lender is bound to inquire into thenecessities for the loan, and to satisfy himself, as well as he can, withreference to the parties with whom he is dealing, that the manager is acting inthe particular instance for the benefit of the estate. But they think that, ifhe does so inquire and acts honestly, the real existence of an allegedsufficient and reasonably credited necessity is not a condition precedent tothe validity of his charge and they do not think that under such circumstanceshe is bound to see to the application of the money.

32. This was the case of sale of an idols property by itsshebait and certainly the Mitakshara verses had no direct application.Referring to (74) 2 I.A. 145 : 23 W.R. 253 : 14 Beng. L.R. 450 : 3 Sar. 449 :3 Suther. 102 (P.C.), Prasanna Kumari Debya v. Golab Chand Baboo at p. 151,(76-77) 2 Cal. 341 [LQ/CalHC/1973/70] : 4 I.A. 52 : 3 Sar. 681 : 3 Suther. 375 (P.C.), KonwarDoorga Nath v. Ram Chunder Sen and (1854) 6 M.I.A. 393 : 18 W.R. 81 : 2 Suther29 : 1 Sar 552 (P.C.), Hunooman Persaud Pandey v. Mt. Babooee Munraj Koonwereeat p. 423 Lord Atkinson observed :

So that the only specific point touching the present caseactually decided in these three authorities was this, that a debuttar estatemay be mortgaged to secure the repayment of money borrowed and applied toprevent its own extinction by sequestration. No indication is to be found inany of them as to what is, in this connexion, the precise nature of the thingsto be included under the description benefit to the estate. It is impossible,their Lordships think, to give a precise definition of it applicable to allcases, and they do not attempt to do so. The preservation however of the estatefrom extinction, the defence against hostile litigation affecting it, theprotection of it or portions from injury or deterioration by inundation, theseand such like things would obviously be benefits. The difficulty is to draw theline as to what are, in this connexion, to be taken as benefits and what not.

33. The three illustrations of benefit will be covered bythe expression . In order to come within the other expression it mayrightly be contended that the occasion need not be similar to any of thoseenumerated by the Judicial Committee in this case. It has been pointed outabove that the expression can convey the meaning of for the sake ofkutumba. Vijnaneshwara himself however took it to mean required formaintaining the kutumba or members of the family. All the three expressions, and according to Vijnaneshwara, convey the sense of necessity.Fathers power of disposal for the benefit of the estate" or the"benefit of the family" is an extension beyond what is conferred onhim by the verse (Mitakshara, Chap. I, S. 1 paras. 27 to 29). A new content hasthus been poured into the old norm expressed by the verse and, with duedeference, I would say, very justly. The conditions of modern life are not thesame as in the days of Vrihaspati or Vijnaneshwara and with all these changesit is difficult to turn a deaf ear to voices unless they come from the tomb,The relevant propositions that may be said to have been now established by thejudicial decisions may thus be summarised : (1) The power defined in Chap. I S.1, paras. 27, 28 and 29 of the Mitakshara is now taken to be the power of themanager of a joint family governed by the Mitakshara law to alienate immovableproperty belonging to the family. (2) The decision of the Judicial Committee in(1854) 6 M.I.A. 393 : 18 W.R. 81 : 2 Suther 29 : 1 Sar 552 (P.C.), HunoomanPersaud Pandey v. Mt. Babooee Munraj Koonweree, is founded on these verses:(32) 19 : A.I.R. 1932 P.C. 182 : 137 I.C. 781 : 54 All. 564: 59 I.A. 300 (P.C.), Benares Bank Ltd. v. Hari Narain at p. 305. (3). Thepower conferred by the verses is wide enough to include the case of expendituremade in the interest and for the benefit of the joint family. The expression which means for the sake off the family, is wide enough to cover suchcases of benefit.

34. In the case before us the plaintiff mortgagee assertsthat Sitaram Chowkhani as karta of the joint family borrowed Rs. 25,000 fromthem on the bond in suit in the interest and for the benefit of the jointfamily. The money borrowed was spent for the requirements of the mortgaged teagarden admittedly belonging to the joint family, and the interests of thefamily justified the expenditure. It has been established in this case that thefamily was in need of money for the purpose of the tea garden and it is alsothe case of the defendant that money had to be borrowed for this purpose. Buthis 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 samedifficulty.

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Budhkaran Chaukhani and Ors. vs. Thakur Prosad Shah and Ors.(26.06.1941 - CALHC)