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Rajasthan High Court
Wanchoo C.J. & Dave, J.
Bithaldas - Appellant
Versus
Chandratan - Respondents
D.B. Civil R. First Appeal No. 21 of 1953
Decided On : October 08, 1954
To prove attestation the proper procedure to follow is that the witness should not only be asked whether he had attested a particular document but the document itself should be shown to him and he should be questioned whether it bears his signature. It should be further put to him whether the executant had also signed the document in his presence or that he had admitted his signature on the document in before him. If the witness says that the executant had signed the document in his presence he should also be asked to identify the signature thereon. But if the execution of the document is amply proved this technical provision of sec. 68 of the Evidence Act can not be invoked simply on the ground that the attesting witness was not properly examined, when there was no law in Bikaner acquiring attestation of the document at all. (Para 5)
It is settled law that where the sons (which expression includes grand sons and the great grand sons) are joint with their father and debts are contracted by the father in his capacity of manager and head of the family, for family purposes, the sons as members of the joint family, are bound to pay the debts to the extent of their interest in the coparcenary property. Similarly, if the debts are contracted by the father for his own personal benefit the sons are liable to pay the debts to the extent of their interest in the joint family property by reason of pious obligation, if such debts are not incurred for an illegal or immoral purpose. This liability to pay their fathers debt on the ground of mere pious obligation can be taken into consideration in a case of simple loan obtained by the father and the suit on the basis of personal obligation has been brought within time. This proposition however holds good if the suit is a simple money suit against the son and not when the question to be considered is whether the father was authorised to alienate or burden the estate in the joint family property. Ordinarily the manager of the joint family in his capacity as such, can alienate in burden the joint undivided estate only for purpose of necessity. It such managing co-parcener happens to be the father then he is given additional authority but that also is limited, that is, if he wants to burden the estate by mortgage then he can do so only to discharge an antecedent debt. In other words, even a father cannot burden the estate by mortgage if it is not executed for discharging an antecedent debt or for the necessity of the family. (Para 7)
A manager of the joint family other than the father can also alienate or burden the estate of the joint family so as to bind other members including minor members to the extent of their interest in that property for paying off the antecedent debts of their father. But such a manager cannot bind the estate merely for discharging the antecedent debts of the father. In other words, mere antecedency of the fathers debts does not authorise a manager other than the father to alienate or burden the estate. There should be further circumstances to show that there was necessity to pay up the fathers debt and that necessity was of a type which entailed either a certain degree of pressure on the estate, some danger to be averted or some benefit to be conferred or some other circumstance which would show that the alienation was eminently desirable or urgently called for, to case the situation existing on the date of transfer. (Para 13)
2. The case of the plaintiff-respondent in the trial court was that the property in dispute whose description is given in para one of the plaint,was first mortgaged by appellants Nos, 1 and 2 and their father Madan Gopal as manager of the joint family with one Chhagan Lal Chura for Rs. 3,000/- on 6 3-46 and the mortgage deed was registered on the next day i.e. 7.3.46. On the 3rd of March, 1948 Appellants Nos. 1 and 2 and Mst. Ram Pyari mother and guardian of appellants Nos 3 and 4 executed another mortgage deed for Rs. 600 /-in respect of the same property in favour of the plaintiff-respondents and it was registered on the next day i.e. 4th March, 1948. It was stated in this document that Rs 3,000/-for the principal and Rs. 150/- for interest, in all Rs. 3,150/-, were paid to the prior mortgagee, Chhaganlal Chura, to redeem that mortgage and Rs. 2,850/- were borrowed by the appellants for their joint family expenses Thus in all Rs. 6,000/- were borrowed by the appellants with interest at the rate of 9 per cent per annum. The plaintiff calculated Rs. 2,250/- for interest till the date of the suit. It was prayed by him that a decree for the sale of mortgaged property be passed against the appellants and that if the amount is not realised from the sale of the property,a personal decree be given against the appellants. He also prayed for the interest, pendente lite and future interest, at the rate of 9 per cent per annum. Appellants Nos. 1 and 2 did not present any written statement and therefore the suit proceeded against them ex-parte as mentioned above. As regards appellants Nos. 3 and 4, it was contended on their behalf that they had no knowledge of the transactions and they were not bound by them since neither Mst. Ram Pyari nor anybody else had any authority to alienate their right and interest in the property. The trial court therefore framed the following three issues :
(1) Whether defendants Nos. 1 and 2 and Mst. Ram Pyari were authorised to mortgage to house in dispute; whether they had executed the mortgage in the plaintiffs favour and whether it was with consideration?
(2) Whether the minor defendants are responsible and if so to what extent ?
(3) What relief the plaintiff is entitled to ?
3. After recording evidence of both parties the trial court came to the conclusion that the mortgage deed Ex. P. 1 was executed by appellants Nos. 1 and 2 and Mst. Ram Pyari and that the previous mortgage was also executed by appellants Nos. 1 and 2 and their father Madan Gopal. It was held that appellants Nos. 1 and 2 were liable to repay the entire debt. As regards appellants Nos. 3 and 4 it was held that they were liable to repay only the debt of 3,000/- which was incurred by their father together with interest amounting to 1,325/-, that is Rs. 4325/- in all. Their Share in the mortgage property was ordered to be sold only for this amount.
4. The appellants learned advocate has raised to arguments in this Court. His first argument which is on behalf of all the appellants, is that the mortgage deed Ex.P-1 should not have been used in evidence by the trial court, nor this Court should look into this document because its execution has not been proved by any attesting witness and therefore it is inadmissible under sec. 68 of the Indian Evidence Act His next contention, which
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