Mitter, J.

1. The learned Counsel for the appellant in arguing thisappeal before us has urged various objections against this decision, and all ofthem may be classified under the three following heads:

(1) That the decision as to the claim regarding the personalliability of the defendants being barred by limitation is erroneous.

(2) That the executants of the bond had full power to createa valid charge upon the family property, and that the appellant is entitled toenforce it against the properties mortgaged, whether the surviving executantsof the bond have any right in them or not.

(3) That the, construction put upon the two wills of GopalLall Moulick is erroneous. That under the terms of the aforesaid wills, thesurviving executants of the bond have a subsisting saleable interest in thefirst two mortgaged properties.

2. We are of opinion that the decision of the lower Courtupon the question of limitation is correct. The contention of the learnedCounsel for the appellant that Article 132 of Schedule II of the Limitation Actof 1877 refers to a claim to recover money charged upon Immovable propertyquite irrespective of the remedy asked for, has been set at rest by thedecision of the Judicial Committee of the Privy Council in the case of Ramdinv. Kalka Pershad L.R. 12 I.A. 12 : I.L.R. 7 All. 502. That decision was passedwith reference to the corresponding article of the Limitation Act of 1871. Thatarticle provides a period of twelve years for suits for money charged uponImmovable property. The Legislature in the present Limitation Act has used adifferent phraseology, viz., "to enforce payment of money charged uponImmovable property." The language of the present Act, viz., "toenforce, etc.," is more in favour of the contention that the article inquestion refers only to suits "to enforce payment of money charged uponImmovable property" by the sale of the said property. This constructionwas put by the Judicial Committee of the Privy Council upon Article 132 of theLimitation Act of 1871, the language of which did not suggest it so clearly asthat of the present Limitation Act. The claim to make the defendants personallyliable has therefore been rightly held to be barred by limitation, the presentsuit having been commenced more than six years after the accrual of the causeof action.

3. But the learned Counsel further contended that, upon atrue construction of the terms of the bond, the cause of action, viz., to makethe defendants personally liable, has not yet accrued. We do not think thatthis contention is sound. The bond stipulates that "if the executantsthereof fail to pay the money, according to the terms thereof, the creditorshall immediately institute a suit and realize the debt by the sale of themortgaged property, and that if the proceeds of the sale fall short, from theperson and other properties of the mortgagors." This stipulation, in ouropinion, contemplates only one suit, and not two successive suits as contendedby the learned counsel. It provides for two remedies by one suit, but theremedies are not to be simultaneously available. The remedy against thepersons, and other properties of the mortgagors, is to be available only in theevent of the first remedy against the mortgaged properties being foundinsufficient. We are, therefore, of opinion that the cause of action in respectof this part of the claim accrued to the appellant before this suit wasbrought, but that it is barred by limitation.

4. With reference to the second head of the objections urgedagainst the judgment of the lower Court, it would be convenient to refer firstto some of the cases in which the law relating to the power of a manager of ajoint Hindu family to alienate in any way or to charge an ancestral propertyhas been discussed.

5. In Prannath Das v. Calishunkur Ghosal 1 Sel. Rep. 60 itwas held that a sale by the manager of a joint Hindu family, without anyexpress authority from his adult coparceners of a joint taluk, was valid andbinding upon the coparceners, the conveyance having been executed while themanager was put under confinement by the servants of the superior zamindar fora balance of revenue, there being no other available means for discharging it.

6. In a note by Mr. Colebrook appended to the answer of thePundit reported at p. 343, Stranges Hindu Law, Vol. II, he says: "I takethe law to be that the consent of the sharers, express or implied, isindispensable to a valid alienation of the joint property beyond the share ofthe actual alienor; and that an unauthorized alienation by one of the sharersis invalid beyond the alienors share as against the alienee. But consent isimplied, and may be presumed in many cases, and under a variety ofcircumstances, especially where the management of the joint property, entrustedto the part owner who disposes of it, implies a power of disposal; or where hewas the only ostensible or avowed owner; and, generally, when the acts, or eventhe silence of the other sharers, have given him a credit and the alienee hadnot notice.

I rather consider it to be a point of evidence, what shallsuffice to raise the presumption of consent, or acquiescence, than a matter onwhich the Hindu law has pronounced specifically.

7. In Ashutosh Day v. Moheshchunder Dutt 1 Fulton 389 it wasdecided that a manager of a Hindu family has power to bind the rest by amortgage when the money is raised for family purposes and bond fide so applied.

8. In White v. Bishto Chunder Bose 2 Hay 567 it was ruledthat an alienation made by the managing member of a joint Hindu family cannotbe questioned by another member, if be stands by and sees to the application ofthe purchase-money for the benefit of the whole family without refusing toparticipate in it.

9. In Peddamuthulaty v. N. Timma Reddy 2 Mad. H.C. 270 Frereand Holloway, JJ. were of opinion "that in a case of an alienation by amanager of a joint Hindu family, mere laches or indirect acquiescence, short ofthe period prescribed by the statute of limitations on the part of the othermembers of the family is no bar to the enforcement of their right to questionthe alienation."

10. In Shama Churn Chatterjee v. Tarucknath Mookerjee 5 W.R.105 Bayley and Pundit, JJ. held that a nephew who was living with and hadalways acted as agent of his uncle, the manager of a joint family could notrepudiate a mortgage executed by the uncle, without proof that the money soreceived by the uncle had not been applied by him towards the expenses of thejoint family.

11. Following the case of Ramlal Thakursidas v. LakhimchandMuniram 1 BHC 51 Mr. Justice Pontifex held in Johurra Bibee v. Sreegopal MisserI. L.R Cal. 470 "that a manager of a Hindu family, carrying on a familybusiness, in the profits of which all the members of the family wouldparticipate, must have authority to pledge the joint family property and creditfor the ordinary purposes of the business."

12. It was held in Ram Kishore Narain Singh v. Anund Misser21 W.R. 12 that a member of a joint Hindu family who, being aware of analienation by the manager, allows some twelve or thirteen years to go bywithout making the slightest objection, must be presumed to have been aconsenting party to it.

13. In Gopalnarain Mozoomdar v. Muddomutty Guptee 14 B.L.R.21 Couch, C.J. held that the debts of a father are by the Hindu law a chargeupon his estate in the hands of his sons, and if the family be in such a statethat there must be a manager for the joint family, the manager, under the Hindulaw, has power to sell or mortgage the ancestral property for the payment ofthe ancestors debts.

14. In Juggeewun-das Keeka Shah v. Ramdas Brijbookun-das 2 MooresI.A. 487 the Judicial Committee of the Privy Council held that a mortgage whichwas not executed by a member of a Hindu family of a village which was ancestralproperty, the mortgage being executed by the other members, under circumstancesof necessity to carry oh a joint family firm, is binding upon all the membersof the family including the person who has not joined in the execution of it,if it is proved that he was cognizant of it afterwards.

15. In Bemola Dossee v. Mohun Dossee I.L.R. 5 Cal. 793 cf.p. 802 Garth, C.J. and Pontifex, J. held that adult members of an undividedHindu family governed by the law of the Dayabhaga, who have an interest in afamily business carried on by the managing member of the family, and who aremaintained out of the profits of such business, must, in the absence ofevidence, be taken to possess the knowledge that the business might requirefinancing and to have consented to such financing. Where, therefore, a managingmember of such a family, in carrying on the family business, obtains an advancenecessary for the purposes of the business, by pledging the joint familyproperty, the mortgage is binding on all the members of the partnership.

16. The result of these cases, in our opinion, is, that analienation made by a managing member of a joint family cannot be binding uponhis adult co-sharers unless it is shown that it is made with their consent,either express or implied. In cases of implied consent it is not necessary toprove its existence with reference to a particular instance of alienation. Ageneral consent of this nature may be deducible in cases of urgent necessity,from the very fact of the manager being entrusted with the management of thefamily estate by the other members of the family. The latter, in entrusting themanagement of the family affairs in the hands of the manager, must be presumedto have delegated to the said manager the power of pledging the family creditor estate, where it is impossible or extremely inconvenient for the purpose ofan efficient management of the estate to consult them, and obtain their consentbefore pledging such credit or estate Prannath Das v. Calishunkur Ghosal 1 SR60; Ramlal Thakursidas v. Lakhmichand Muniram 1 BHC 51. Johurra Bibee v.Sreegopal Misser I.L.R. Cal. 470; Gopal Narain Mozoomdar v. Muddomutty Guptee14 B.L.R. 21; Joggeewun-das Keeka Shah v. Ramdas Brijbookun Das 2 Moores I.A.487 are instances of the application of the principle enunciated above. Whitev. Bishto Chunder Bose 2 Hay 567 and Ram Kishore Narain Singh v. Anund Misser21 W.R. 12 are cases in which the consent of the subordinate members to aparticular alienation was presumed from their acquiescence and othersurrounding circumstances.

17. In the case before us, we are of opinion, upon the evidenceadduced, that the charge upon a portion of the family property cheated by thebond of the 28th Magh 1281 is binding upon all the members of Gopal LallMoulicks family who take under his wills.

18. The answers to the interrogatories administered to thedefendants in the lower Court having not been put in as evidence, by mereoversight, and we being of opinion that in the interests of justice theappellant should be allowed to rectify this error, without putting therespondents to the inconvenience of an adjournment, allowed the answers of oneof the defendants, Runga Nath Moulick, who was present in Court, to be put in,and further allowed the counsel on both sides to examine viva voce the saidRunga Nath Moulick, such examination being limited to the matters covered bythe interrogatories administered to him in the lower Court. In order to clearup a material point in the case with reference to which we were convinced thatRunga Nath Moulick, while under examination, was dishonestly attempting to suppresscertain facts, we also allowed the decree in which Indramani Chowdhrain wasplaintiff and Haran Krishna Moulick was defendant, to be put in evidence.

19. From this additional evidence, coupled with that whichwas taken in the lower Court, it is clear to us that nearly the whole of themoney, borrowed under the bond of the 28th Magh 1281, was spent to defray theexpenses of a suit which was brought by Indramani to recover the property ofGokul Chunder left by his widow Brojo Sundary. It appears that on the death ofBrojo Sundary, the estate of Gokul was taken possession of by Anunda MohunMoulick, the third son of Gopal Lall, on behalf of the minor Haran Krishna, whowas set up as the adopted son of Gokul and Brojo Sundary. In the second para,of Gopal Lalls second will, dated 15th Assar 1275, the testator declared thatthe whole of the estate of Gokul had devolved upon him as heir-at-law of Gokul.By that will he disposed of that property in a certain way, the details ofwhich it is unnecessary to state here. It seems to us that it was undoubtedlythe duty of the managers of Gopal Lalls estate appointed under his wills torecover Gokuls estate, which Gopal Lall declared in his second will to be his.The suit which was brought by Indramani, with the active co-operation andadvice of her grandsons for the recovery of Gokuls estate, was, in ouropinion, a necessary suit, for a due administration of the testators estate.It is proved beyond doubt that the money covered by the bond, upon which the[401] present suit has been bought, was required for defraying the expenses ofthat suit. Indramani was successful in the first Court, but failed in thisCourt on the appeal preferred, on behalf of Haran Krishna Moulick. There weretwo hearings of this appeal in this Court, and ultimately there was an appealby Indramani to the Judicial Committee of the Privy Council, which affirmed thedecision of the High Court. The success of the suit depended upon a verydifficult question of the Hindu law relating to adoption, and it does notappear to us that Indramani and her grandsons, in taking up this case to thehighest tribunal, acted in a way in which a prudent manager would not haveacted for the due preservation of the testators estate. We are further ofopinion that in conducting this litigation, and in raising money by mortgaginga portion of the family property for defraying the expenses of this litigation,they acted with the implied consent of all the members of the family, includingAnangamanjari. We are, therefore, of opinion that the mortgage created by thebond of the 28th Magh 1281 is binding upon all the defendants in this case,although Anangamanjari and Doydra Nath were not parties to it.

20. In this view of the case, it is unnecessary to expressany opinion upon the remaining question in the appeal, viz., as to theconstruction to be put upon the two wills of Gopai Lall Moulick. But as thiscase is appealable to a higher tribunal, we think it proper to record ourdecision upon that point also.

21. His Lordship then proceeded to deal with the thirdquestion raised in the appeal, referred to above, and to construe the two willsof Gopal Lall; and determine the interest of Anangamanjari in the two portionsof the mortgaged property found by the lower Court to have been bequeathedabsolutely to her, and then concluded as follows:

The result is that, in our opinion, the defendants who werethe executants of the bond have a certain amount of saleable interest in theproperties mortgaged in the bond of the 28th Magh 1281, and which interest atleast is liable for the money due under it. But we have already decided, withreference to the second ground of appeal, that the whole of the mortgagedproperty is liable. The appellant is also we think entitled to recover thecosts of this suit in both Courts.

22. The decree of the lower Court will be reversed, and inlieu thereof we direct that an account be taken of what is now due to theplaintiff, for principal and interest on the mortgage bond dated the 28th Magh 1281,and for his costs of both Courts, and that the defendants be directed to pay tothe plaintiff, or into Court, the amount that may be found due on the taking ofthe said account, together with interest thereon, at the rate of 6 per cent,per annum from the date of the decree to the date of payment, within six monthsfrom the date of the decree. And we further direct that if defendants makedefault in paying the amount due within the time mentioned above, the mortgagedproperty be sold, and that the proceeds of the safe (after defraying there outthe expenses of the sale), be paid into Court and applied in payment of what isfound due to the plaintiff, and that the balance, if any, be paid to thedefendants, or other persons entitled to receive the same.

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Miller vs. Runga NathMoulick and Ors. (01.07.1885 - CALHC)