JUDGMENT Bennet, J.
1. These are two connected First Appeals No. 312 of 1928, by the minor defendants Gobindji and Rawanji and No. 476 of 1928, by the plaintiffs the firm of Lallamul Hardeo Das against a decree of the learned Subordinate Judge of Muttra in which the suit of the plaintiff has been decreed in full but certain of the mortgaged properties have been partly exempted. There were originally three minor defendants-appellants, but the minor Chirota died after the filing of the appeal, and his name has been expunged as his father Mohan is a party to the appeal.
2. The plaintiff firm sued on a simple mortgage deed of 6th December 1921. Execution of this mortgage deed was denied, but it has been proved that it was executed by defendant 1 Jamna Prasad on his own behalf and as guardian of his minor son defendant 4 Sohan, and also executed by defendant 2 Kunj Behari Lal on his own behalf and as the guardian of his minor sons Gobindji and Rawanji the present defendants-appellants, and by Mohan, defendant 3. These defendants are related as follows:
Dibbaji | Jamna Prasad ___________________|____________ | | | Kunj Behari Lal Mohan Sohan | | __|__________ Chirota | | Gobindji Rawanji
3. The amount of the mortgage money was Rs. 24,000 and the rate of interest was 10 annas per cent per mensem compoundable half-yearly. There were four properties mortgaged, No. 1 being a haveli called 'Bara' or 'Nohra' and bearing the number 1543; No. 2, a dwelling house; No. 3, an enclosure containing kachcha and pucca houses; and No. 4, the mortgagee rights in three pucca shops. The written statement of the present appellants denied the execution of the mortgage or that it was for consideration and alleged that in any case:
There was no pressing legal necessity... nor was any benefit or gain of the family considered, nor was it obtained.
4. It is also alleged:
Jamna Prasad is not the karta of the family and Kunj Behari is bent on wasting the entire property.
5. The learned Subordinate Judge came to the conclusion that the mortgage was not for legal necessity and accordingly he held that although the total amount of the mortgage money could be recovered by the sale of properties Nos. 1 and 4, which were not ancestral, properties 2 and 3 were ancestral, and he held that the decree could only be executed against properties 2 and 3 so far as the half-share in these properties belonging to the adult executants of the mortgage deed was concerned.
6. In the appeal of the minor defendants the point is taken that on the finding that the mortgage was not for valid family necessity nor for the benefit of the estate the entire ancestral property should have been exempted. That argument is undoubtedly correct, but we have first of all to consider whether the finding of the learned Subordinate Judge that this mortgage deed was not for valid family necessity, nor for the benefit of the estate, is a correct finding on the facts which were pleaded and proved in this case. With the plaint a copy of the mortgage deed in question was filed, and para. 6 of the written statement of the present defendants-appellants printed on p. 11 states that copy of the mortgage deed was perused by the person who drafted the written statement for these defendants. That mortgage deed sets forth in its recitals:
For the benefit of the members of our family, we, the executants, intend to purchase a haveli known as Nohra together with the shops, situate in Muttra, Holi Darwaza. We have continually been in possession of the said property for about 40 years, have been deriving benefit therefrom in every respect and have been giving convenience and comfort to the pilgrims from the outstations by letting them stay therein. At present the Hon'ble Raja Brijnjath Singh, the Ruler of the Mahiyar Estate, who is now the owner of the said property, wants to sell it. We are getting the said property at favourable price. We and also the minors and the other members of our family have hope to be benefited in every way by purchasing the property.
7. Now it is true that the plaint does not repeat the recitals in this mortgage deed, but nevertheless the written statement in para. 7, additional pleas sets up the following allegation:
The transfer alleged by the plaintiff is a transfer of an ancestral property which is legally invalid.
8. Further in the second ground of appeal to this Court the defendants-appellants alleged:
Because the Court below has erred in holding that properties Nos. 1 and 4 were not ancestral.
9. Naturally in view of this case set up by the defendants-appellants the plaintiffs would be led to consider that there was no denial of the allegations in the mortgage deed to the effect that the family of the defendants had been in continuous possession of the haveli known as Nohra for about 40 years and had been using it for their business of conducting pilgrims. There is no clear allegation in the written statement that this was not the joint business of the family of defendants. On behalf of the plaintiff there was evidence given as follows: Lallamul on p. 13 stated that he had negotiated the loan of Rs. 24,000 on this mortgage from the plaintiff firm which is a firm of cotton spinners in Hathras; and Lallamul states that the profession of the defendants is jajmani, and that he has seen them in occupation of the Nohra so far back as he could remember, and his age is 46.
10. It is true, as pointed out by the learned counsel for the appellants-defendants, that this witness adds that Kunj Behari Lal and Jamna Prasad represented to him that other persons wished to purchase the Nohra, and if the mill advanced the money the defendants would have a permanent means of livelihood for their children as the house was of particular value for their profession. But we do not consider that this sentence should be taken to indicate that the witness considered that this profession was only to be begun in the future in that house. On the other hand the meaning apparently is that up to the time of the purchase of this house, which was on the same date as the sale deed, the defendants were not secure in their occupation of the house, because being purohits of the Raja who was the owner of the house the defendants merely kept it during his pleasure. When the Raja of Maihar determined to sell this house, the adult defendants naturally consider it a prudent move to purchase this house in which they had been so many years living and carrying on their business and accordingly as they were unable to raise the purchase price of Rs. 26,000 they borrowed Rs. 24,000 from the plaintiff firm and put up Rs. 2,000 of their own money, and on 6th December 1921 they bought the house by the sale deed printed at p. 52 of the paper book. On the same date they pledged the house by the mortgage in suit for the security of Rs. 24,000 to the plaintiff firm. The question therefore, before us is whether the defendant mortgagors were acting with prudence and discretion in their management of the family affairs in purchasing this house and thereby enabling the family of the defendants to continue their business of jajmani in that house. Further evidence is given for the plaintiff by Banwari Lal on p. 15, who states that he has seen Jamna Prasad and Kunj Behari, Lal in the bara or haveli for many years, and that it was in their management on behalf of the Raja of Maihar and that the house was decidedly a help to them in their profession of jajmani. This witness also states that the house was called Dibbaji ka bara after the grandfather of the defendant Kunj Behari, that is the father of Jamna Prasad. The same statement is made by the plaintiff's witness Sohan Lal, who states that he had seen the Nohra in the possession of Dibbaji for a long time and that other people were prepared to pay Rs. 33,000 or Rs. 34,000 for the property, but Jamna Prasad and the other defendants were given the property because they were the purohits of the Raja of Maihar. This witness also states that he had seen Jamna Prasad and Kunj Behari scores of time at the railway station with pilgrims, and that he had seen them guiding the pilgrims to the temples.
11. On behalf of the defendants evidence was given by Siji at p. 20, who is a Chaube, and he states that he never saw the defendants exercising the profession of jajmani. He also alleges that there is no room in the bara to put up pilgrims. From the recitals in the sale deed and the mortgage deed of the extent of the bara we see that this statement must be absolutely untrue. Not a single defendant comes forward to give evidence in denial of the recitals in their mortgage deed. This witness Siji alleges that Kunj Behari defendant keeps ekkas and tongas for hire for about 20 years, and that he lives at the bara. In this connexion we may point out that the sale deed shows that in this bara there are two sections called stables. It is apparently in these stables that Kunj Behari keeps his ekkas and tongas, and these ekkas and tongas are also apparently used in the business of conveying pilgrims from the station of Muttra to the temples which are at a considerable distance from the station. The evidence of the defence witness Shamji is similar to that of Siji. Further evidence is given for the defence by one Pearey Lal at p. 23, who says that he is a munib of a firm which rented a portion of this bara for Rs. 90 between dates 23rd June 1924 and 28th February 1926. There were also two shops in the bara at the entrance which were not included in the lease and which the witness thinks could be let at Rs. 15 per mensem. This evidence is intended to show that the purchase of the bara was a purchase which was not for the benefit of the family because the interest at 10 annas per cent per mensem on Rs. 24,000 would be Rs. 150 per mensem. But in the first place the evidence omits to notice that besides the income of Rs. 90 and possibly Rs. 15 for the two shops there was also a use of the bara at the time by the defendants for their business of jajmani and also a use for providing stables for the numerous ekkas and tongas belonging to Kunj Behari.
12. Moreover the criterion which we are to apply to a transaction such as the mortgage deed in question is not whether it ultimately turned out to be for the benefit of the family, but whether it was a transaction which at the time it was entered into was such that a prudent man would have entered into it in the expectation that it would be for the benefit of the joint Hindu family Further in the present circumstances the prospect before the adult members of the defendant's family was this. If they had failed to purchase this house which was offered to them by the owner at a concession, then the business of the family in jajmani could not have been any longer conducted in this building. There would, therefore have been a loss to the defendants unless they had been able to establish their business of jajmani elsewhere.
13. We may observe that the method adopted by persons plying this trade in Muttra and elsewhere is to meet pilgrims at the railway station and to take them round the temples in the city and to put them up at suitable lodging houses under the control of the persons conducting the business. Without lodging accommodation it is not, we consider possible to conduct this business on any large scale. Now in the present case the plaint sets out that the defendants were able to pay only instalments amounting in all to Rs. 3,000 of the interests, and eventually the defendants had been sued for Rs. 32,318. But the question arises as to whether the present situation of the family was due to any inherent imprudence in the execution of the mortgage deed in question or whether it was due to bad management on the part of the adult members of the family subsequent to that transaction. Up to the date of the sale the family of the defendants had been in possession, that is to say they held this large property without paying rent whatsoever to the Raja. When the sale took place and they became liable for interest on the mortgage deed of Rs. 150 a month it became of course necessary for the defendants to meet this charge either by enlarging their business or by improving their income in other directions. There was no doubt that there was between 1924 and 1926 a certain amount of income from letting a portion of the haveli, but like many other people the defendants did not appear to have been sufficiently capable to conduct their business or to economies sufficiently so as to meet the interest charges on this mortgage; but is want of capacity in their subsequent management, a matter which we should take into account in considering whether the transaction entered into in 1921 was or was not for the benefit of the family? We may refer for the law on the subject to Hanoomanpersaud Pandey v. Mt. Babooee Munraj Koonweree [1854] 6 M.I.A. 693, (at p. 423) which states as follows:
The power of the manager for an infant heir to charge an estate not his own, is, under the Hindu law, a limited and qualified power. It can only be exercised rightly in a case of need, or for the benefit of the estate. But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, the bona fide lander is not affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be regarded.
14. Now in the present case the danger to be averted was the loss of the possession of this house which had been in the possession of this family for 40 years and which had been of material assistance to the family in conducting its business of jajmani. We consider, therefore, that in the present case, following the principle laid down by their Lordships of the Privy Council, the adult defendants were justified in executing the mortgage in question and that the transaction was a transaction for the benefit of the family. In the later ruling of Brij Narain v. Mangla Prasad A.I.R. 1924 P.C. 50 (at p. 104 of 46 All.) their Lordships of the Privy Council laid down five propositions the first of which is that the managing coparcener of a joint undivided estate cannot alienate or burden the estate qua manager except for charges of necessity. We consider that the present case falls within this proposition and that the transaction was for legal necessity.
15. Accordingly the transaction was for legal necessity and the four properties in the mortgage deed are equally bound. We therefore allow the appeal of the plaintiff and decree the suit of the plaintiff in full with costs in both Courts and the decree will be amended so that the decree will be against all the four properties in the plaint. A fresh decree will accordingly be prepared. Six months from the date of this order will be allowed for payment of the amount decreed by the defendants. We dismiss the appeal of the defendants with costs and decree the appeal of the plaintiff with costs. The order of the lower Court for proportionate costs will be set aside and the plaintiff will receive his costs in both Courts in full.