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PATNA HIGH COURT
Raj Kishore Prasad, J.
Firm Ramlochan Ram Lakshmi Prasad
Versus
Maikha Sethani
Appeal from Original Decree No. 36 of 1956 ;
Decided On : SEPTEMBER 17, 1959
Suit for recovery of money based on a hathchitha (Ext. 2) executed by one Motilal Munib, on behalf and as Mukhtarkhas of defendant 2, appointed by her under Ext. 1. Defendant 1, the firm of the defendants, did not appear and contest the suit. Defendants 2 to 4, however, appeared and filed a joint written statement on 24-4-1955 and contested their liability to the plaintiff. They denied to have carried on arhatdari business in the name and style of defendant 1 or to have borrowed any money from the plaintiffs husband. They denied the genuineness of Exts. 1 and 2. They further alleged that the ancestral business of the defendants never existed after 1947, and, therefore, the money even if borrowed from the plaintiff was never utilised for the benefit of the defendants, and, as such, they were not bound by the same. In short, the defendants denied the entire transaction and seriously challenged the genuineness of Ext. 1. The learned Additional Subordinate Judge, after a consideration of the evidence, oral and documentary, of both sides, came to the conclusion that Exts. J and 2 were genuine and Motilal had the power of authority to borrow money on behalf of defendant 2, and, that he actually took the loan; and the defendants had been benefited by the said loan, and, therefore, they were liable for the claim of the plaintiff. He, accordingly, decreed the plaintiffs suit.
Fact of the Case:
Suit for recovery of money based on a hathchitha (Ext. 2) executed by one Motilal Munib, on behalf and as Mukhtarkhas of defendant 2, appointed by her under Ext. 1.
Finding of the Court:
The learned Additional Subordinate Judge, after a consideration of the evidence, oral and documentary, of both sides, came to the conclusion that Exts. J and 2 were genuine and Motilal had the power of authority to borrow money on behalf of defendant 2, and, that he actually took the loan; and the defendants had been benefited by the said loan, and, therefore, they were liable for the claim of the plaintiff. He, accordingly, decreed the plaintiffs suit.
Issues: 1. That there was no necessity, no negotiation and no advance, and, therefore, Ext. 2, the hathchitha as well as Ext. 1, the special power of attorney, are both forged and the present suit has been falsely instituted at the instance of P.W. 7; 2. That the loan, even if advanced on the basis of Ext. 1 under Ext. 2 was illegal and, not binding on the defendants, because (a) It was borrowed on behalf of defendant 2, the certificated guardian of her then minor sons, defendants 3 and 4, without the sanction of the Court, which appointed her; (b) Ext. 2 was executed not by defendant 2 herself, but on her behalf and as her Mokhtarkhas, by Motilal, but defendant 2 could not legally delegate her power of borrow, as a certificated guardian, even to any Mokhtarkhas; (c) There was no enquiry, nor any legal necessity for the loans borrowed under Ext. 2 so as to bind defendants 3 to 5, the sons of defendant 2; 3. No decree, even if any, can be passed against defendants 3 to 5 so as to make them personally liable, and, as such, it should be confined only to the assets, if any of defendant 1 in the hands of defendants 3 to 5.
Ratio Decidendi: The court held that the loans in question having been borrowed by defendant 2, the mother and natural guardian of defendants 3 to 5 will be deemed to have been borrowed by her as the karta of the joint family consisting of herself and her sons, defendants 3 to 5, and, these loans being for legal necessity and for their benefit was perfectly legal, and, binding on defendants 3 to 5.
Final Decision: The appeal fails and is dismissed, but in the circumstances of the present case, I would direct that each party should bear its own costs of this Court.
Raj Kishore Prasad, J.
1. This appeal, by the defendants, is from the judgment of the learned Additional Subordinate Judge, then stationed at Daltonganj, decreeing the plaintiffs suit for recovery of money based or, a hathchitha (Ext. 2) executed by one Motilal, on behalf and as Mukhtarkhas of defendant 2, appointed by her under Ext. 1.
2. Mr. Kailasb Roy, who appeared for the appellants, has attacked the findings of the trial Judge on several grounds, The points, which emerge from his argument, may be summarised as below :
1. That there was no necessity, no negotiation and no advance, and, therefore, Ext. 2, the hathchitha as well as Ext. 1, the special power of attorney, are both forged and the present suit has been falsely instituted at the instance of P.W. 7;
2. That the loan, even if advanced on the basis of Ext. 1 under Ext. 2 was illegal and, not binding on the defendants, because (a) It was borrowed on behalf of defendant 2, the certificated guardian of her then minor sons, defendants 3 and 4, without the sanction of the Court, which appointed her;
(b) Ext. 2 was executed not by defendant 2 herself, but on her behalf and as her Mokhtarkhas, by Motilal, but defendant 2 could not legally delegate her power of borrow, as a certificated guardian, even to any Mokhtarkhas;
(c) There was no enquiry, nor any legal necessity for the loans borrowed under Ext. 2 so as to bind defendants 3 to 5, the sons of defendant 2;
3. No decree, even if any, can be passed against defendants 3 to 5 so as to make them personally liable, and, as such, it should be confined only to the assets, if any of defendant 1 in the hands of defendants 3 to 5.
3. Two other arguments, which arise out of the reply of Mr. Ramanugrah Prasad, who appeared for the plaintiff-respondent, are :
4. That the appointment of defendant 2 as a certificated guardian of defendants 3 and 4 was illegal, and,
5. That the appointment of defendant 2 as a certificated guardian of defendants 3 and 4 was illegal; and,
6. That, even if the answer to the above question be in the affirmative, defendants 3 to 5, the sons of defendant 2, were liable under the Hindu law for the loans under Ext. 2.
4. In order, however, to see how this suit has arisen, it is necessary to go back a little into the family history of the defendants and their connection with the plaintiff. The plaintiff is the widow of Mangilal Sarangi who carried on money lending business as a registered money lender at Daltonganj. According to the plaintiff, the defendants carried on arhatdari and other business in the name of their firm--Firm Ramlochan Ram Lakshmi Prasad -- defendant I, which was an ancertral joint family business of the defendants, and borrowed money from the plaintiffs husband, Mangilal, from time to time for necessities connected with the said ancestral business of the defendants. Lakshmi Prasad, husband of defendant 2, died on 25-3-1945 (Ext. A) leaving behind his widow, defendant 2, and his minor sons defendants 3 and 4. Defendant 5 is a posthumous son of Lakshmi Prasad. On 10-4-1945, defendant 2 made an application (Ext. 9) under the Guardians and Wards Act, 1890, for her appointment as the guardian of the person and property of her then minor sons, defendants 3 and 4. On 1-6-1946, defendant 2 was granted the certificate (Ext. O) by the Judicial Commissioners, Ranchi, appointing her the guardian of the persons and properties of her then minor sons, defendants 3 and 4.
5. Admittedly, one Motilal was the Munib of the defendants firm. Defendant 2, on 6-5-1948, executed a registered power of attorney, the original of which is Ext. A, and its copy in the register of power of attorney is Ext. 5, in favour of Motilal. This general power of attorney was revoked on 21-9-1951 by defendant No. 2 by her petition (Ext. C) filed on that day before the District Sub-Registrar, Palamau, at Daltonganj, and this fact is noted in the register of power of attorney (Ext. 5) as well as in Ext, A.
6. The plaintiffs
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