SirBarnes Peacock Kt., C.J.@mdashThis appeal arises out of one of many cases joined in one suit in which the plaintiff, Lachman Prasad, on behalf of himself and Radha Mohan, his minor brother, as sons and heirs of Jitan Lal, deceased, sued in forma pauperis to recover possession of certain lands, by reversal of certain deeds of absolute and conditional sale, executed by his father Jitan Lal, and which the plaintiff alleges were executed without any necessity. The deeds were all executed by Jitan Lal and Udit Sing, the brother of Jitan Lal, jointly, but the plaintiff''s claim is confined to the one-half share alleged to have belonged to Jitan Lal, his father, Jitan Lal and Udit Sing were the sons of Baiju Lal. It was admitted, in the course of the argument, that Lachman Prasad was born in the year 1837, and Radhamohan, about the end of 1856, or the beginning of 1857, and that Jitan Lal, the father, died on the 8th of August 1857. The property in this and the other cases is situate in Zilla Sarun, and is subject to the Mitakshara law. It was ancestral property inherited by Jitan Lal and Udit Sing before the birth of either of the plaintiffs. The Court has already, in a Full Bench decision of Rajaram Tewari v. Lachman Prasad Case No. 228 of 1865; June 7th, 1867 (B.L.R. Sup. 602), pointed out the great inconvenience arising from the joinder in one suit of many defendants having separate interests in distinct portions of the subject-matter of the suit, and each claiming under different circumstances. The inconvenience is still more apparent when we consider the issues of fact which were raised in this case and bear in mind the dates of the several deeds which were sought to be set aside.
2. The issues of fact were:
First.--Did plaintiff''s father, Lala Jitan Lal, sell his ancestral estates in suit conditionally and absolutely for small sums of money, when there was no such necessity for their sale as has received the sanction of Hindu law, and spend the consideration-money of the same extravagantly; or were the said alienations effected by plaintiff''s father at proper valuations, to pay off his ancestral debts, to contribute to the expenses of the education of his sons, and the marriage of his daughters, to meet the demand of Government revenue, and to defray expenses which were considered necessary and sanctioned by Hindu law?
Second.--Are the deeds of absolute and conditional sale, whereof the reversal is sought, reversible or not? If so, which of the documents is reversible, and on what grounds?
Third.--Are the liabilities under loans contracted and bonds executed by plaintiff''s father, on the strength of which decrees have been passed by the Civil Court, valid or not? Is the claim for possession of properties, which were publicly sold in satisfaction of those debts, joint or not?
Fourth.--Even if it be proved that plaintiff''s father was an extravagant person, and that alienations of his ancestral estate were effected, when there was no such occasion for the same as has received the sanction of Hindu law, can the plaintiff be held entitled to possession of the properties in suit with mesne profits, or not? If so, then, from what time and at what amount is the claim for mesne profits to be reckoned, and which of the defendants are to be held liable, and which not, for the payment of the same?
Fifth.--Is the plaintiffs'' claim to the property, for the alienation of which their father had executed certain documents before their birth, just and valid, or not?
3. Each of these issues applied not to any one particular deed, but to each of the several deeds under which the defendants respectively claimed.
4. In determining the issues of fact, the Principal Sudder Ameen who tried the case, and who appears to have given it considerable attention, observed:--(Reads p. 120 ante).
5. The Principal Sudder Ameen then very properly proceeded to consider separately the merits of each particular case. With reference to that part of the judgment in which the Principal Sudder Ameen says, the burden of proof on the point that the plaintiff''s father having sold his ancestral properties to meet such necessities as are sanctioned by Hindu law, spent the consideration-money in meeting the necessities, rests with the vendees, and it was very necessary for the latter to prove the point, in order to show that those alienations were effected in good faith and were valid," he is not quite accurate. The principle laid down by the Lords of the Judicial Committee in Hunooman Pershad Panday v. Mussamut Munraj Koonwaree 6 M.I.A. 393 (399) was as follows:--"Their Lordships think that the lender is bound to inquire into the necessities for the loan and to satisfy himself, as well as he can, with reference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate. But they think that if he does so inquire, and acts honestly, the real existence of an alleged sufficient and reasonably accredited necessity is not a condition precedent to the validity of his charge, and they do not think, that, under such circumstances, he is bound to see to the application of the money."--Mussamut Norruttum Kooer v. Baboo Gouree Dutt Singh 6 W.R. 193. The same principle had been applied in the case of sales of ancestral property governed by the Mitakshara law.
6. If the plaintiffs'' case were sustainable in other respects, it would be necessary to direct issues in this and in the other cases as to whether the persons who advanced the money to Jitan and Udit, upon the security of the lands or for the purchase of them, did, after due inquiry into the necessities of the father and uncle of the plaintiffs, act honestly in the belief, that a sufficient necessity for taking up the money for the benefit of the family existed.
7. In the case out of which appeal No. 228 arises, the Principal Sudder Ameen says: "As the plaintiff''s father saved his estate which had been advertised for sale in execution of a decree obtained by Permeswar Pandey, by paying, out of the consideration-money covered by this deed, rupees 1,246, or a moiety of the decretal money due from him to the said decree-holder, the sale of 4 pie, 10 kets and 7 mussats, out of anna 1-7 the property in suit, or that of the share of plaintiff''s father Jitan Lal, reckoned in proportion to the said decretal money (rupees 1,246), ought to be considered good. The defendant has failed to prove that '' the remainder of the consideration-money was spent in meeting any other similar legal necessity. Consequently the sale of anna 1-4-13 is invalid, and ought to be cancelled. Moreover, the defendant''s statement regarding the payment of zuripeshgi is not sufficient to validate the sale, for it was unnecessary to have recourse to sale for the purpose of paying the zuripeshgi."
8. The Principal Sudder Ameen has treated the conditional sale as valid, in respect of a portion of the lands in proportion to that portion of the consideration-money borrowed for and spent in a matter of legal necessity, and has found that it was void as to the residue of the lands conveyed; and he decrees that the plaintiff should recover a certain portion only of Mauza Pakhera. I think it very doubtful whether the principle of upholding the deed as to that portion of the land which bears the same proportion to the whole quantity conveyed as the money borrowed for and applied in discharging a legal necessity bore to the whole amount of the consideration-money is a correct one. If a larger sum of money was borrowed or raised by sale than was required for a legal necessity, and a larger portion of the estate than was necessary for the purpose of raising the sum legally required was mortgaged, or sold, the vendees or mortgagees, as the case may be, would be entitled to a charge upon the lands mortgaged or sold to the extent of the money required and taken up for purposes for which, according to the Hindu law, the plaintiff''s father and uncle were entitled to alienate the estate during the minority of the plaintiffs. This was the principle upon which the Lords of the Judicial Committee of the Privy Council acted in regard to an estate sold by a Hindu widow, and the same principle appears to be applicable in a case like the present: see the case of The Collector of Masulipatam v. Cavaly Vencata Narainapah 8 M.I.A. 500 (504 and 505). The same principle seems to have been acted upon in the case of Modun Gopal Thakoor v. Ram Buksh Pandy 6 W.R. 71. It is unnecessary, however, to decide whether if an ancestor borrows rupees 20,000 when he is not justified in borrowing for the necessities of the family more than rupees 10,000, and mortgages an 8-anna share of the ancestral estate as a security for the rupees 20,000, when he could borrow the rupees 10,000, upon the mortgage of a 4-anna share of the estate, the heir may treat the mortgage as void as to a 4-anna share and good as to the other 4-anna share. It is certainly more convenient than compelling the heir to repay the rupees 10,000 lawfully borrowed before be can set aside the mortgage as to any part of the estate, for the heir may be unable to pay the rupees 10,000 or even to borrow it upon the security of the estate upon the chance of his succeeding. It may well be assumed in such a case that the share mortgaged was a sufficient security for the whole loan, and consequently that one-half would be a sufficient security for half the loan. In Rajaram Tewari v. Lachman Prasad Case No. 228 of 1865; June 7th, 1867 (B.L.R. Sup. 602), it was held that if any portion of the money borrowed by the ancestor was for purposes recognized by the Mitakshara as necessary, the plaintiff is not entitled to recover under a plaint which seeks to set aside the deed in toto, and to recover possession upon the ground that the whole of the money was used by the father for the purposes of his own extravagance. See also the case of Modun Gopal Thakoor v. Ram Buksh Pandy 6 W.R. 71 after remand. I am not, however, prepared to admit the correctness of that ruling as regards the form of the pleadings. The plaintiff to whom, in all probability, the circumstances, under which the transaction with his father took place, are not so well known as they are to the defendants, seeks to recover possession of the land alienated by his father by reversal of the deed of conditional sale. It was for the defendants to prove that a legal necessity for taking up the money upon loan existed, or that after due and honest enquiry they had reason to believe that such a necessity did exist. I see no reason why in such a case, upon the defendant''s establishing a necessity for part of the loan, the Court might not decree that the deed should be set aside, and the plaintiff recover possession upon his paying the amount which was legally taken up for necessary purposes recognized by Jaw, or that the deed should be set aside in proportion. In the case above referred to, The Collector of Masulipatam v. Cavaly Vencata Narainapah 8 M.I.A. 500, the suit was to set aside an alienation in toto and to recover possession of a zemindary, upon the ground that the vendor was a widow who had no power to alienate, and there was no offer to pay what, if anything, might appear to be due for advances made to her for purposes for which, according to Hindu law, she was entitled to alienate the estate, yet the Lords of the Privy Council directed an enquiry as to whether any, and what, advances had been made to the widow for which, according to the Hindu law, she would have been entitled to alienate the estate. It does not follow that they would not have set aside the deed as to a certain proportional share of the estate, if there had been a finding that there was a legal necessity for raising one-half of the purchase money, but no legal necessity as to the other half. There are many other cases in the Courts of Equity in England in which the relief prayed for has been granted upon equitable conditions annexed by the Court, though the relief was prayed for absolutely. Thus, in Head v. Egerton 3 P.W. 279 a suit to compel the defendant to deliver up certain title deeds to the plaintiff which he claimed as owner, the Court refused to order the deeds to be delivered up, unless the plaintiff would pay the defendant certain money which was equitably due to him. In Towers v. Davys 1 Vernon 479 the plaintiff filed a bill to compel the defendant to give up certain deeds which concerned his estate. Defendant refused to deliver up the deeds until her jointure was confirmed, the plaintiff insisting that the jointure was after marriage and was purely voluntary. But the Court refused to order the delivery of the deeds to She plaintiff except upon the terms of his confirming the jointure. If, therefore, this question depended merely upon the form of the pleadings, I should refer the case to a Full Bench.
9. These cases stood over until after the decision of the Full Bench in the case of
10. In the appeal, No. 228 of 1865, the deed sought to be set aside was a deed of conditional sale dated the 11th of June 1847. It recited that Jitan Lal and Udit Narayan, the father and uncle of the plaintiffs, on the 16th of May 1824, had borrowed 5,500 sicca rupees from the father of Permeswar Dutt, and had given him a zuripeshgi lease of that date to secure the amount; that the holder of the zuripeshgi had sold it to Bandi Ali, and had executed a deed of assignment to him, and that Bandi Ali was then in possession; that afterwards, in order to pay off a decree for 2,493 rupees recovered against them by Permeswar Dutt, and other monies, Jitan Lal and Udit Narayan had taken up 3,440 rupees upon a deed of conditional sale dated the 12th of February 1845; that in consequence of the debt due under the deed of 1845 not having been paid, Permeswar Dutt had applied for foreclosure, and had served notice on the 26th of June 1846; that, in order to protect the estate and to pay off Permeswar Dutt, Jitan and Udit had borrowed the money secured by the conditional sale of the 11th of June 1847. The deed of the 11th of June 1847 contained a proviso that if the mortgagors should fail to pay off the mortgage debt on the day stipulated, the mortgagee should be at liberty to take possession of the mortgaged property by paying off the debt due on the mortgage of the 16th of May 1824. The defendants alleged that they foreclosed the mortgage of 1847, paid off the debt due to one Bechi Pandey under the mortgage of the 16th of May 1824, and obtained a decree for possession id 1852. The rent reserved by the zuripeshgi of 1824 was 710 rupees, of which rupees 50 were to be paid to the mortgagors and 660 rupees were to go in discharge of the interest on the debt. The Principal Sudder Ameen found that there was legal necessity for the plaintiff''s father raising 1,246 rupees, and that therefore the mortgage of the share of the plaintiff''s father was good for a portion of the property in. proportion to that portion of the money raised. But Jitan alone did not borrow 1,246 rupees on his share of the estate, but Jitan and his brother Udit Narayan borrowed the whole sum necessary to pay off the decree, viz., 2,493 rupees, upon their joint interest in the estate. Jitan and Udit Narayan were members of the joint family, of which the plaintiffs, on their respective births, became members. So long as the family was joint, Jitan and Udit had no certain definite shares in the estate, although upon partition, if it had taken place at that time, Jitan and his sons might have been entitled to one-half, and Udit and his son, if be had one, to the other half. The money borrowed by Jitan and Udit, so far as it was for a legal necessity, was borrowed by them jointly, and was a charge upon the joint estate. The whole amount is a charge upon what is called the plaintiff''s share, as well as upon what is called. Udit''s share. Udit''s half of the money borrowed is not chargeable upon what is called his share only, and Jitan''s half upon what is called his share only; but the whole of the money borrowed by the two, so far as it was for a legal necessity, was a charge upon the whole of the joint estate in the property mortgaged. There is nothing to show that the joint family has been separated, or the joint property partitioned; and in the absence of such partition, the plaintiffs have no defined or certain share which they can call their own, or for which they can sue alone without making all the members of the joint family parties to the suit. It appears, from some of the statements, that Udit Narayan had a son, but there is no distinct evidence upon that subject, or to show that he is living. The plaintiffs are not entitled to sue alone, unless they can show that they were, at the time of the commencement of the suit, the sole surviving members of the joint family of which Udit Narayan was one, and entitled by descent or otherwise to the interest of Udit as well as of Jitan.
11. Further, it appears from the recitals in the deed of 1847, that Udit Narayan and Jitan borrowed money upon the security of the lands on the 16th of May 1824, which was before either of the plaintiffs was born. Jitan and Udit at that time had power to borrow money upon the security of the lands, for they appear to have been at that time the only members of the joint family. It is alleged that the defendants paid off that mortgage, but there is no distinct proof of that payment, or that the mortgage of 1824 was then outstanding; and no distinct issue appears to have been raised upon either of those points. The recitals in the deed of 1847, if true, showed a legal necessity for borrowing. An issue ought, therefore, to have been tried, not only as to whether legal necessity for borrowing existed, but also whether the lenders acted with due caution and made due enquiries as to whether such a legal necessity existed as justified the mortgage for the full amount for which it was given, or for any other, and what amount. It is unnecessary to send the case back for the trial of such an issue, as it is clear that the plaintiffs are not entitled to recover any portion of the estate until the charge created by Udit as well as that created by the plaintiff''s father has been set aside; and the charge created by Udit cannot be set aside in this suit. Further, the plaintiffs as two only of the members of a joint family which does not appear to have been separated, and as two only of the owners of joint property, which does not appear to have been partitioned, are not entitled to any certain definite share for which they can sue alone:
12. The right of action has been misconceived, and the proper persons have not been made parties. The suit should have been brought by all the joint owners to set aside the deed as to the charge created by Udit as well as to the charge created by Jitan; and the suit should have been brought by all the members of the joint family, and not by two of them alone who before partition have no definite share. If the deed were to be set aside, it would be impossible by the decree to define the share to which the plaintiffs are entitled to recover so long as the property is joint. If the other members of the joint family refused to join as plaintiffs, they might have been made defendants in the suit. A case like this in which the plaintiffs sue to set aside a deed executed by their own father and uncle upwards of twenty years ago, upon the ground that the conveyance was void under the Mitakshara law, is one, to say the least of it, strictissimi juris. It appears to me, for the reasons above stated, that the decision of the Principal Sudder Ameen ought to be reversed, and the plaintiff''s suit dismissed with costs in the lower Court, and the costs of this appeal.
