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1927 Supreme(SC) 93
Privy Council
Sir Lancelot Sanderson, Sir John Wallis, Sinha, Justice Viscount Sumner, JJ.
Bhagwan Singh and others -Appellant
Versus
Ujagar Singh -Resopndent
Privy Council Appeal No. 111 of 1925
Decided On : 02-12-1927
Ford and Chester, Rankin, Hy S.L. Polak, E.B. Raikes, B. Dube, L. DeGruyther
Under Mitakshara law, a son born after a mortgage transaction cannot challenge its validity if the managing member of the joint family consented to the alienation for legal necessity, as the son held no interest in the property at the time of execution.
Headnote:(A) Hindu Law - Alienation of property by a widow - Mortgage executed for valid necessity - Where the income of a widow is found to be hardly sufficient to meet the ordinary expenses of the family, borrowing money to meet extraordinary expenses, such as the marriages of daughters, constitutes valid necessity, rendering the mortgage binding.
(B) Estoppel - Attestation and acquiescence by managing member of joint family - While the mere attestation of a deed does not necessarily imply consent to the transaction, evidence showing that the managing member of a joint family took an active part in consultations and subsequently entered into agreements related to the mortgage establishes consent and acquiescence, thereby creating an estoppel.
(C) Mitakshara Law - Rights of a son born after a transaction - A son born after the execution of a mortgage cannot contest the validity of the transaction if the managing member of the joint family acquiesced in the execution, as the son had no interest in the family property at the time the mortgage was created.
Facts of the case:
A suit was brought for the recovery of possession of land alleged to be ancestral property. The defendant claimed possession based on a mortgage executed by a widow of the grandfather of the plaintiff. The plaintiff contended that the widow had no power of alienation and that a prior partition agreement had limited her interest to a life estate without the power to alienate. The defendant argued that the mortgage was executed for valid necessity and that the plaintiff's father, acting as the managing member of the joint family, had consented to and witnessed the mortgage.
Findings of Court:
The court found that the widow's income was insufficient to meet the family's ordinary expenses, making the borrowing for her daughters' marriages a valid necessity. It further determined that the plaintiff's father had not only attested the mortgage deed but had actively consented to the transaction and later sought an option to have the mortgage transferred to him, confirming his acquiescence.
Issues: Whether the mortgage was executed for valid necessity; whether the managing member's conduct and attestation estopped the family from challenging the mortgage; and whether a son born after the execution of the mortgage could contest its validity under Mitakshara law.
Ratio Decidendi: The court held that the trial court's finding of legal necessity was correct. It ruled that the managing member's active participation and subsequent conduct established consent to the mortgage. Furthermore, since the plaintiff was not born at the time of the mortgage's execution, he acquired no interest in the property that would allow him to challenge a transaction acquiesced to by the managing member of the joint family.
Result: Appeal allowed.
Legal Category Hierarchy
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family law
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hindu law
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joint family property
- alienation and mortgage
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joint family property
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hindu law
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property law
- mortgage
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practice and procedure
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evidence
- estoppel
- attestation
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evidence
Sir Lancelot Sanderson. -
This is an appeal by the legal representatives of Bishen Singh, who was the defendant 1 in the suit, against the judgment and decree of the High Court of Judicature at Lahore, dated the 22nd July 1923. The High Court's judgment reversed the judgment and decree of the learned Subordinate Judge, who tried the suit. The suit was brought in July 1917, by the plaintiff Ujagar Singh, against Bishen Singh and two other defendants, viz., Abdul Rahman Khan, sometimes called Balwant Singh, and Jaswant Singh, sons of Gurbaksh Singh, to recover possession of the land mentioned in the plaint, situate in the Gujaranwala district, which was alleged by the plaintiff to have been part of the ancestral property of Hira Singh, the grandfather of the plaintiff. The plaintiff alleged that the defendants 2 and 3 had a half-share in the said property, but that, by reason of a private partition, they had taken other lands in exchange for their share in the suit land, that consequently they had no further interest therein, and that they have recognized the claim of the plaintiff to the lands in suit, which had been held by Mt. Malan.
The defendant, Bishen Singh, was in actual possession of the lands in suit, and relied upon a mortgage executed on 6th May 1896, by Mt. Malan, who was one of the widows of Hira Singh. A pedigree of the family is included in the respondents' case in this appeal, and is as follows :
The plaintiff alleged that Mt. Malan had no power of alienation of the land in dispute and that he was in no way bound by the mortgage. The defendant, Bishen Singh, then put in a further pleading, alleging that Mt. Malan mortgaged the land for valid necessity, for payment of debts, and for expenses incurred in connexion with the marriages of her daughters. The defendant further stated that if the mortgage money interest and costs were paid he had no objection to release the land. The learned Subordinate Judge held that Mt. Malan had limited powers of alienation but that the mortgage was executed for valid necessity, and that it was binding on the plaintiff. He held further that the suit was barred by the Indian Limitation Act. In the ordinary course the plaintiff's suit would have been dismissed, but the learned Judge said that
Having regard to the fact that the case has been dragged on for pretty long time, and defendant 1 is not disinclined to redeem the lands provided he is paid his charges and the costs of improvements, I think the plaintiff may be allowed to redeem the lands in this case.
He accordingly made a decree in the plaintiff's favour for possession of the land in dispute, provided the plaintiff paid Rs. 8,734-4-0 in addition to the costs of buildings to be determined thereafter which had been built by the defendant, Bishen Singh ; and he directed that the parties should bear their own costs. Both the plaintiff and the defendant, Bishen Singh, appealed to the High Court ; the two appeals were heard together, and disposed of by one judgment on 22nd July 1923. The learned Judges of the High Court were of opinion that no necessity whatever had been proved for the mortgage, they therefore allowed the plaintiff's appeal, and gave the plaintiff a decree for possession of the land in suit without any payment.
The defendant's cross-appeal was dismissed, and it was directed that his representative should pay the plaintiff's costs in both appeals and in the trial Court. The High Court did not deal with the question of limitation ; but this, is now of no importance in view of the fact that the learned counsel who argued this appeal on behalf of the appellants stated that he did not rely on that point.
In the first place the question of necessity may be dealt with. The learned Judges of the High Court came to the conclusion that Mt. Malan had ample funds to meet the expenses of the marriages of her daughters, and that defendant 1 had failed to establish any necessity whatever for borrowing money. This opinion was largely bas
