Dixit, J.@mdashThis appeal arises out of a suit for redemption in respect of a house situated in Mal Ganj, Indore City. The appeal is by the Defendant-mortgagee and is directed against the decision of the Additional District Judge, Indore, whereby he substantially affirmed the judgment and decree of the Additional Munsiff City Indore allowing the Plaintiff Laxminarain''s claim for redemption of the house. The trial Court had allowed the Plaintiff to redeem the property on payment of Rs. 600/- with interest, but the lower appellate Court modified this direction by ordering an account to be taken of the amount due under the mortgage and further directing the Plaintiff to redeem the property on payment of the amount so found due.
2. The material facts of the suit out of which this appeal arises are that the Plaintiff Laxmi-this appeal arises and the Respondent Hiralal are real brothers. It was alleged by the Plaintiff that on 28-11-1928, he and Hiralal jointly purchased the house in suit from one Ganeshram by a registered sale deed Ex. P-l; that on 1-12-1928 they mortgaged the house for a sum of Rs. 600/- with the Appellant Ghasiram and jointly executed mortgage- deed Ex. P-2 and gave possession of the house to the Appellant; that subsequently on 3-12-1928 the Plaintiff and his brother Hiralal took the house on rent from the mortgagee Ghasiram and executed jointly a Kirayanama Ex. P-3. It was further stated by the Plaintiff that some years after Hiralal sold the house to Ghasiram without the consent and knowledge of the Plaintiff and that Ghasiram also executed an agreement of resale of the house in favour of Hiralal but that Ghasiram did not resell the house to Hiralal, and instead started proceedings for ejectment against Hiralal alleging himself to be the owner of the house.
The Plaintiff went on to allege that he had tendered the amount due under the mortgage to Ghasiram for redeeming the property, but Ghasiram refused to accept the amount saying that he was the-absolute owner of the property. It was stated by the Plaintiff that as he had a half share in the house, the sale effected by Hiralal was not binding on him and that he was entitled to redeem the entire property on payment of Rs. 600/-
In his written statement Ghasiram admitted that the Plaintiff and his brother Hiralal purchased the house from Ganeshram but he said that the Plaintiff did not contribute any amount for the purchase of the house. Ghasiram resisted the suit on the ground that Hiralal and Laxminarain were living jointly; that Hiralal was the manager of the joint family; that as manager of the family Hiralal borrowed from the Appellant a further sum of Rs. 300/- and later on with the sansent and knowledge of the Plaintiff sold the house to him for Rs. 1,000/- and executed 23-12-1933 a sale-deed Ex. D-l; that after the Hiralal also executed a rent note Ex. D-2 in f(sic) of the Appellant Ghasiram; and that circumstances the mortgage executed by and Laxminarain was no longer subsisting the Plaintiff had no cause of action.
The Defendant Hiralal admitted the Plaintiff claim and added that the sale deed Ex. D-1 executed by him alone without the consent knowledge of the Plaintiff and not as manage the joint family; and that as on the day of execution of sale deed in favour of Ghasiram agreement for the resale of the house to him also executed by Ghasiram, he was entitle enforce the agreement of resale of the ho him. Hiralal sought to enforce in the suit agreement for resale.
The trial Court found that the Plaintiff narain and his brother Hiralal formed a Hindu family until at least the sale transact that Hiralal who is the elder brother never; as a ''Karta''; that the sale by Hiralal in of Ghasiram was not effected by him as a that the sale transaction was without the Court and knowledge of the Plaintiff; and that agreement to resale was not established. The learned trial Judge, therefore, came to the Court (sic) sion that as under the Benares School of Law by which the parties were governed, (Sic) parcener could alienate his individual interest the property even for a valuable consider without the consent of the other coparcener sale of the house by Hiralal alone in favour Ghasiram was not binding on the Plaintiff to the extent of Hiralal''s share in the house learned Additional District Judge agreed with findings of the trial Court.
3. It was argued before me by Mr. Nevada the learned Counsel appearing on behalf o Appellant that the findings of the Courts that the Plaintiff was unaware of the transaction of sale made by Hiralal in favour of the i(sic) lant Ghasiram and that it was made by clandestinely are erroneous, and that it is dence that the Plaintiff used to reside in a just opposite the house in suit and that he present when the sale deed by Hiralal favour of Ghasiram was executed. It was contends if the Plaintiff Laxminarayan and his Hiralal constituted a joint family, then, it be held that Hiralal who is admittedly the brother was the manager of the family time of the sale and that the sale deed excuted by him in his capacity as the Karta family.
It was said that the ordinary presumption Hindu Law is that the eldest member of family is the manager of the family and anybody wants to displace the presumption the eldest member acted as a manager, it (sic)cumbent on that person to prove the (sic) butting this presumption; that in this Plaintiff has not shown- that in selling the; to Ghasiram, Hiralal did not act-as manage that he never acted as the manager of the fine Learned Counsel for the Appellant argued the sale of the house by Hiralal to Ghasira therefore, binding on the Plaintiff.
It was further contended in the alternate as the Plaintiff''s suit was on the allegation he had a half share in the house and not, allegation that he and his brother constion joint family and the house in question joint Hindu family property, the Plaintiff redeem his brother''s interest which had all passed to the Appellant under a valid sale.
The contention of the learned Counsel for the padent is that the mortgage-deed is still with Appellant; that it bears no endorsement, as be right of redemption of the Respondents being been extinguished and that the right of option has not been extinguished by any sale deed to which both the Respondents parties. It was further stated on behalf of ft Respondents that Hiralal was not the manager the joint family and that the sale by Hiralal is not in any way extinguish the right of re-aption of the Respondents and that the mort- subsisted.
4. It is common ground that the house in suit purchased jointly by Laxminarain and Hiralal from one Ganeshram; that they executed the mortgage-deed Ex. P-2 in favour of Ganeshram and the subsequent rent note Ex. P-3 in favour. Both (he Courts below have found, the finding is not now disputed, that Lax-Boarain and Hiralal were members of joint family. It is also net in dispute that the sale Ex. D-l was executed by Hiralal alone in Court of the Appellant Ghasiram. As redemption is not required by law of he proved by a registered deed to that effect and as it is not necessary that redemption should be in a particular the question for determination is whether sale of 23-12-1933 by Hiralal of the mortgage entry to Ghasiram has the effect of extending the mortgage and the Plaintiff''s right to tile property. The answer to the question tends, in my opinion, solely on the fact where Hiralal was the manager and also on the which has not at all been appreciated by Courts below, whether the house in suit was family property. There can be no doubt if the sale effected by Hiralal is binding on maintain then the entire mortgage-debt must held to be extinguished and the Plaintiff''s suit redemption must be dismissed.
5. Both the Courts were agreed that the two hers Hiralal and Laxminarain formed a joint family until at least; the sale transaction, they were of the view that it was not shown has a fact Hiralal was acting as manager and the fact that he was the elder brother did necessarily raise the presumption that he was ''Karta'' of the family. The Courts below after (sic)t, into consideration the circumstances that property was purchased by Hiralal and Lax-(sic) from Ganeshram, that the mortgage and the rent note were executed by both these and that even in the sale-deed Ex. D-l l did not describe himself as Karta, have that Hiralal was not a ''Karta'' and never to act as manager of the family. To seems, the inference is not legitimate.
Under the Hindu Law the presumption is that set member of the joint family is the of the family. The manager is pre-manage the joint family property and With it. It is not necessary to show that (sic) case he has acted as the manager. Such presumption under the Hindu Law, the lies on the person desiring to displace the presumption to prove the facts rebutting option. In my opinion the fact that din and Hiralal jointly purchased the party from Ganeshram or the fact that they purchased a mortgage-deed and a rent note of Ghasiram is not inconsistent with B status as the manager of the family. Nor (sic) Failure of Hiralal to describe himself as Karta in the sale-deed Ex. D-l sufficient to show that he ceased to act as manager at the time of the sale.
These circumstances are, however, in my view, material in showing that the property in suit was not treated by the brothers of joint family property. For the mere existence of a joint family does not mean that the family owns property or that all property owned by the members constituting the family is joint family property. There is no evidence in the present case to show whether there was any nucleus of joint family- property. As is clear from the mortgage-deed and the deposition of Ghasiram, the money for purchasing the house from Ganeshram was obtained by Laxminarain and Hiralal from the Appellant'' on the mortgage security of the house.
6. It is observed in Mayne''s Hindu Law (11th Edition, p. 346) that:
It is now settled that when the members of a joint family by their joint labour or in their joint business, acquire property, that property in the absence "of a clear indication of a contrary intention, would be owned by them as joint family property.
In Sarkar''s Hindu Law at p. 341 '' (7th Edition) this principle has been stated thus:
When two or more undivided brothers or other collateral sapindas who had not inherited any ancestral property or had taken no aid from such nucleus, if any, acquire & amass wealth solely by their joint personal exertion & skill in carrying on a trade, or otherwise, then it depends entirely on their intention whether they should hold- the property as tenants-in-common like strangers entering into a partnership, or as members of a joint family, clothing the same with the legal qualities and incidents of joint family property, chief among which is survivorship.
7. In the present case, the family is not shown to ''have had any ancestral property. The house was acquired by Laxminarain and Hiralal jointly from Ganeshram and for the purpose of purchasing the house they borrowed Rs. 600/- from Ghasiram and executed a joint mortgage and rent note in favour of Ghasiram, These circumstances show that Hiralal and Laxminarain acquired and held the property as tenants-in-common and that they never treated it as a joint family property. It is worthy of note that the'' Plaintiff himself has nowhere stated in the plaint that he and Hiralal formed a joint Hindu family and the house in suit was a part of the joint family property. On the other hand, his suit was on basis that he and Hiralal held the property as tenants- in-common and that he had a half share in the property.
The Plaintiff cannot now be allowed to set up a new case outside the pleadings and say that the property was the joint family property and that therefore the sale of it by one coparcener is invalid in to. It was, no doubt, pleaded by the Appellant that the property was joint family property, but no attempt was made by the Appellant to establish that Hiralal and Laxminarain in spite of their joint purchase and mortgage of the house treated it as a joint family property. Laxminarain and Hiralal being thus the tenants- in-common of the property in suit, the sale of the house by Hiralal to Ghasiram is valid to the extent of Hiralal''s share.
The effect of the sale was to bring about a sale of the share in the equity of redemption only of one of the mortgagors, namely, Hiralal who was a party to it and to that extent the mortgagee became a full owner of the property. As the sale i valid to the extent of the Plaintiff�s share b�se the Plaintiff was not a party to the sale, the mortgage-debt is not extinguished to the ex tent of the Plaintiff�s share and his equity of redemption subsists. The contention, therefore, of the Appellant that the sale is valid in toto and the entire mortgage has been extinguished must fail.
8. The next point is whether the Plaintiff is entitled to redeem the whole mortgage. The Appellant-mortgagee objects to such redemption. I think that when there has been a severance of the security and the integrity of the mortgage has been broken, the Plaintiff cannot insist on redeeming the share purchased by the mortgagee- Appellant against his will. For, the effect of the acquisition by the Appellant of Hiralal''s share in the mortgaged property is to extinguish the mortgage pro tanto in respect of that part. After the acquisition of a share of the property by the mortgagee, the normal right of a sharer in the residue is to redeem the whole residue. The part acquired by the mortgagee cannot of course be redeemed for the simple reason that the mortgage as to that part has been extinguished.
On behalf of the Respondent Laxminarain no authority has been cited in support of the proposition that in circumstances such as those existing in the present case, a mortgagor is entitled to, redeem even the other co-mortgagor''s share purchased by the mortgagee. I am aware that in the decisions of the Privy Council in
But the Privy Council made the observations with reference to the question of the right of a share in the mortgaged property to redeem the share of other co-mortgagors in residue left, after the mortgagee''s purchase. These decisions do not lay down that a co-mortgagor is entitled to redeem even the share purchased by the mortgagee in spite of the opposition of the mortgagee. In my opinion, the Plaintiff Respondent''s right is limited to the redemption of that part of the mortgaged property which has not been purchased by the Appellant. In the present case, this part happens to be the Plaintiff''s own half share in the mortgaged property and he is entitled to redeem it on payment of the proportionate part of the mortgage-debt.
9. On behalf of the Respondent Hiralal, cross- objections with regard to his claim for the resale of the house to him were filed in this appeal. Learned Counsel for the Respondent Hiralal did not, however, press the cross-objections.
10. The result is that the appeal is partly allowed, the Respondent Hiralal''s cross-objections are dismissed and the decree of the lower appellate Court is amended by the direction that the Plaintiff Laxminarain is entitled to redeem one- half share in the house on proportionate payment of amount that may be found due on the mortgage. There will be no order as to costs incurred in this Court.
