Judgement

Appeal from a judgment and decree of the High Court (December 11. 1912) affirming the decree of the Subordinate Judge of Bareilly.

On September 21, 1885, three Hindu brothers, Sarnam Singh, Ratan Singh, and Kallu Singh, who were governed by the Mitakshara but were separate in estate, borrowed Rs.1200 from Lachhman Prasad, now represented by the appellants, and by an ordinary deed of hypothecation charged their respective zamindari rights in certain villages in respect of the debt and interest.

On May 21, 1910, Lachhman Prasad instituted the present suit against Sarnam Singh, the sole surviving mortgagor, his son and grandson, three sons and a grandson of Ratan Singh, the only con of Kallu Singh, a brother of the mortgagors (who was joint with Kallu Singh) and his sons. The plaint claimed to enforce the mortgage against the hypothecated property. Sarnam Singh pleaded that the debt had been discharged ; other defendants pleaded that there was no legal necessity and that the debt was not binding upon their joint family property.

The Subordinate Judge dismissed the suit, holding upon the authority of

Law. Rep. 44 Ind. App. 163 ( 1916- 1917)

Narain Prasad V. Sarnam Singh 43

Chandradeo Singh v. Mata Prasad (( 1909) I. L. R. 31 Allah. 176.) that, in the absence of proof of an antecedent debt or of necessity, the mortgage was not binding upon the joint family property. The decision was affirmed by the High Court, it being further held that the mortgage was not enforceable against the share of Sarnam Singh since he could not mortgage his share in the ancestral property without the consent of his coparceners.

1917. April 26. Parikh and J K. Roy, for the appellants. It is conceded that upon the decision of the Board in Sahu Ram Chandra v. Bhup Singh (Ante, p. 126.) the mortgage is not enforceable against the respondents other than Sarnam Singh. The deed however, implied a representation by Sarnam Singh that he had authority to mortgage his joint family property, and an undertaking to make good that representation Mahabeer Persad v. Ramyad Singh. (3) In accordance with that decision there should be a partition of his share and a decree against his partitioned share.

The respondents did not appear.

The judgment of their Lordships was delivered by

VISCOUNT HALDANE. In this case no difficult question of law arises, and their Lordships are prepared to intimate at once the advice which they will tender to His Majesty upon the appeal.

It is a suit with regard to a mortgage made on September 21, 1885, by three Hindus subject to the Mitakshara law, who joined in borrowing Rs.1200 on the security of the properties of the joint families of which they were the respective heads. There is nothing special in the terms of the mortgage, which do not go beyond what is stated. It is contended that, although according to the decisions of this Board that mortgage is prima facie invalid as being neither for an antecedent debt nor for any proven necessity of the joint family, it still may be held to be valid on the doctrine laid down by the High Court of Calcutta in the case of Mahabeer Persad v. Ramyad Singh. (12 Beng. L. R. 90.) There the head of a joint family and his son, who was of age, united in attempting to raise money. There was a younger son, also a member of the joint family, who was not of age and who did not, and could not, concur. The mortgage was declared bad, but the learned judges who decided the case thought themselves at liberty to put a condition into the decree which in effect determined that an implied representation or undertaking given by the mortgagors that they had power to charge the joint family property and would make good the representation by partition or otherwise should receive effect, and accordingly they, in substance, ordered by their decree a partition of the property, so that the separate shares to be obtained under the partition of the father and the son should be made payable to the mortgagees. Whether that parti