Stephen, J.@mdashThe Plaintiff in this case sues the Defendants for a sum of Rs. 9,970-9-0, being the principal and interest due on a hatchitta, dated the 14th April 1901 This represented the balance due on a hatchitta, dated the 14th April 1900, which was given in renewal of a former hatchitta dated the 16th September 1898. The Plaintiff is the guardian of the heir of one Inder Chand Dhoodhuria a person in whose favour the original hatchitta was drawn. The Defendants are the four sons of Saroda Prosad Chose, who was dead at the time of the making of these hatchittas. All the hatchittas were signed by the first two Defendants on their own behalf, and on behalf of the third and fourth Defendants as their certificated guardians, the third hatchitta being also signed by the first and the second Defendants as administrators of the estate of their father pending minority of the third and fourth.
2. The first two hatchittas were collateral security to an equitable mortgage by the deposit of title-deeds, and the third represents the balance due after the title-deeds had been redeemed.
3. The first and the second Defendants do not appear. The third and the fourth Defendants defend the suit on the ground that the hatchitta casts no personal obligation on them, and whether it does so or not is the point, which I have to decide.
4. In the plaint the Plaintiff seeks to make Atullya and Bhupendra, the third and the fourth Defendants, liable because Amullya and Debendra were the administrators of their father''s estate and guardians of their person and property, and also because Amullya was the kurta of the family consisting of the four brothers who formed a joint undivided Hindu family, the last point being made clearer in the argument than in the words of the pleadings.
5. The case on the guardianship has been dropped because the first and the second Defendants were not and never were appointed guardians of their younger brothers.
6. As to administratorship, Amullya and Debendra were made administrators of Saroda''s property in April 1898 pending minority of their younger brothers, which terminated as to Atullya a few days after, on the 10th April 1898, and as to Bhupendra on the 17th October 1901, after the signing of the last hatchitta.
7. No leave was obtained by the first two Defendants as administrators to make an equitable mortgage in respect of which the hatchittas in this case were executed : and it is undisputed, that such action of administrators creates a personal undertaking on their part which can only bind them personally, whatever rights it may give them against the beneficiaries; and even if it is possible to extend their personal liability to the beneficiaries by reason of the fact of its being ancillary to the mortgage.
8. Leave had not, as I have said, been obtained to make the equitable mortgage. It has been argued that absence of leave only makes the mortgage voidable, under provisions of the Indian Succession Act, but it seems to be plain on the facts of this case that nothing has been done by the third and the fourth Defendants to debar them from taking the point that the mortgage is void.
9. Amullya''s position as kurta of the family is in fact the ground on which it has been sought to base the liability of Atullya and Bhupendra.
10. On the pleadings and the evidence, I think it is plain that Amullya became the kurta of the family on his father''s death, but the question is what were his rights as such.
11. On this, two points arise for decision :-- (1) What is the position of a kurta when he is administrator ? and (2) can he east obligation of a personal bond on a co-parcener ?
12. On the first point there is no decisive authority. Looking at the general intention of the provisions of the law on the subject, I should suppose that an administrator cannot exercise the powers as kurta which he is directly prevented from exercising as administrator, where the reason for exercising the powers is the same in whichever capacity he exercised them, for example, where he desired to sell the assets of the family to pay the family debts. This view is supported by the case which was quoted to me, viz, Shurrut Chunder v. Raj Kishen Mukherjee 15 E.L.R. 350 (1875), where a certificated guardian was not allowed to exercise the powers of the natural guardian. This rule cannot however be laid down to preclude the case suggested by the Defendants'' Counsel, that is, of the widow and administratrix selling the family property in case of necessity. In the present case I am certainly inclined to the view that if Amullya''s acts cannot in fact be justified by his position as au administrator, his powers as a kurta cannot be prayed in aid. It is however unnecessary to decide the case on this point in the view I take of the answer to question No. 2 and the facts of the case.
13. As to the powers of a kurta to cast obligation of a personal bond on a coparcener, no cases have been laid before me to support the view that he can. I should not suppose it to be the case. In the case of Chalamaya v. (sic) ILR 22 Mad. 106(1898) and Krishna Ramya v. Vasudeb Venkatesh Put ILR 21 Bom. 808 at p. 816 (1896), a contrary view seems to have been taken which appears to me to be a sound one But these cases seem to me to limit the kurta''s power to deal with family assets, and to support the view that a kurta cannot cast personal obligation on his co-parceners apart from his dealings with the family assets, with the proviso that a family business is a family asset. A co-parcener might of course be bound on the ordinary principle of agency or of subsequent acquiescence; but I hold that there is no trace of either of these in the present case. This hostility between Amullya and the third and the fourth Defendants seems to me to put such a view of the case out of Court, and as this case is based solely on the personal obligation of the third and the fourth Defendants on the hatchittas it must be dismissed against them with costs.
14. I may add that, even assuming the case to be made against the third and the fourth Defendants on the supposition that their liability is founded on debts of the deceased by reason of their having his assets in their hands, it must fail on the facts.
15. There is no evidence that Saroda the deceased died indebted to anyone. It has been stated on behalf of the Plaintiff that subsequently to his death he was found liable to Messrs. Hoare Miller & Co., being their banian, for defalcations committed by one of his sons. This story is not in any way proved to my satisfaction. I can readily understand that Amullya, on whose word it chiefly depends, cannot be called by the Plaintiff'' or by the Defendants. But it is strange from the Plaintiff''s point of view that the evidence in support of this story is not forthcoming from Messrs. Hoare [Miller & Co. and an investigation of their books does not yield any substantial corroboration of it. I am inclined to think there is no trace of it in the books of Messrs. Hoare Miller & Co.; they rather shew that the debts for this hatchitta were contracted by Amullya after Saroda''s death on his own account personally.
16. Further, the question arises, did the Plaintiff cause any such enquiries to be made as would justify him in making Debendra and Amullya liable in their representative capacity and I hold he did not. The enquiries made by the witness Russick Lall Biswas were certainly of a most perfunctory kind and no proper enquiries seem to have been made from Messrs. Hoare Miller & Co, Enquiries are alleged to have been made by one C.S. Sen, who lists not been called, and it is alleged that information was derived from a broker Brojo Mohun Chowdry and from some acquaintance of the family, one Gnanendra Babu. They have not been called, and the absence of their evidence has not been satisfactorily accounted for.
17. Amullya at all events was in a position in which credit might have been given to him alone, and the description of his own representative capacity given on the hatchittas seems to challenge enquiry. Under these circumstances I find that the facts in the case do not support the Plaintiff''s case.
18. The first and the second Defendants do not appear. There must, therefore, be judgment against them with costs on scale No. 1, and there will be judgment in favour of the Defendants Nos. 3 and 4 with costs on scale No. 2.
Mr. Chaudhuri
I am entitled to my costs of the commission to examine Babu Pasupati Bose executed at Madhupore and also to the costs of the rule obtained herein.
Stephen, J.
Yes.
