JUDGMENT
1. First Appeals No.136 and 137 of 1921 are connoted appeals by certain defendants arising out of two suits for sale on the basis of two, mortgage-deeds of the same date namely the 2nd of June 1914.
2. The first of the two mortgage deeds was executed by Bhawani Prasad, and others in favour of Hardeo Sahai, and the second by the same mortgagors in favour of Hukam Chand and Gauri Shankar. Under these two deeds amounts due under to prior mortgage-deeds dated 16th of June 1894 and the first of March 1897 were paid off and only a sum or Rs. 500 was paid in cash which was said to have been required for the purchase of corn for daily consumption and for the completion of the mortgage-deeds in question
3. In the one case the only contesting defendant was a subsequent transferee Inayat Ilahi and in the other Maharaj Singh one of the members of the mortgagor's family also contested the suit. The other defendants did not put in any appearance. On behalf of the contesting defendants the execution of the documents as well as the passing of consideration were denied. It was further pleaded that there had been no legal necessity for the transfers and that the mortgage-deeds were, therefore not binding on the family.
4. The learned Subordinate Judge was of opinion that it was not open to Inayat Ilahi, he being a transferee only, to raise such a plea and he further held that the ether contesting defendant, Maharaj Singh, not having been born at the time when the two prior mortgage deeds were executed was not competent to challenge the transactions He accordingly decreed both the suits in full. Inayat Ilahi and some of the defendants other than Maharaj Singh have preferred two appeals and on there behalf although the findings as to the execution and the passing of consideration are not challenged it has been strongly contended that there was in fact no legal necessity for these transfers.
5. The first question which arises is as to whether it is open to the transferee, Inayat Ilahi, to raise the question of want of legal necessity. This question we would have thought depended on the further question whether a mortgage of joint property by a Hindu father without any legal necessity and not in lieu of any antecedent debt and without the consent express or implied, of the other members of the family, was void or only void able If such a transfer were void there can be no doubt what so ever that any subsequent transferee who comes into possession of the property would be entitled to raise the point that the transaction was not binding on the property.
6. On the other hand if the mortgage transaction were merely void able at the option of the non-consenting members of the family, then it is difficult to see how a subsequent transferee of the property itself could be allowed to question it. A transaction which is void able remains good so long as it is not challenged by the members who have the option to have it set a side It is for them to exercise or not to exercise the option. If without exercising that option and in fact admitting the validity of the mortgage they transfer the property, the transferee cannot be allowed to say that he has acquired that option by the transfer.
7. Undoubtedly it has been held in a number of cases that a transfer by a Hindu widow, who represents the whole estate for the time being and who certainly hrs power to transfer the property for her life-time is only void able at the option of the reversioners and not absolutely void. But as to a Hindu father the whole estate does not vest exclusively in him but in the family of which he is the head. He may also as the manager, be the aagninst of the family in relation to the outside world. The question whether a transfer by him with out legal necessity is void or void able is another matter. There are certainly observations in some old cases which go to show that such a transfer is not absolutely void but only void able In the case of Hanuman Kamat v. Hanuma Mandur 19 C. 123 : 18 I.A. 158 : 6 Sar. P.C.J. 91 : 9 Ind. Dec. (N.S.) 527 (P.C.) their Lordships of the Privy Council observed at page 126 that the sale by a Hindu father was not necessarily void but only void able if objection were taken to it by the other members of the joint family. And the same view was expressed by a single Judge of this Court in the case of Bishumbhar Dayal v. Pirsh adi 1il 16 IND.Cas.629 : 10 A.L.J.110 On the other hand, the learned Advocate for the appellants relies on the observations in the cases reported as Balgohind Das v. Narain Lal 15 A. 339 : 20 I.A. 116 : 6 Sar. P.C.J. 313 : 17 Ind. Jur. 425 : 7 Ind. Dec. (N.S.) 934 (P.C.) and Muhammad Muzamilullah Khan v. Mithiulal 11 Ind. Cas. 220 : 33 A.L.J. 190 (F.B.) where it was distinctly held that such a transfer without the consent of the other members, of the family was invalid.
8. Their lordships in the leading case of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39A.437 at P.442 : 21 C.W.N. 698 : 1 P.L.W.557 :15 A.L.J.437 : 19 Bom.I.R.498 : 26 C.L.J.1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 44 I.A. 126 (P.C) observed any deed of gift sale or mortgage granted by one coparcener on his own account of or over the joint family property is invalid the estate is wholly unaffected by it and its entirety stands free of it. It may be that the word invalid is not necessarily the same thing as void. We do not, however, think it necessary to go any further into this question as we feel ourselves bound by the ruling of the Full Benchin Muhammad Muzamilullah Khan v. Mithulal 11 Ind. Cas. 220 : 33 A. 783 : 8 A.L.J. 190 (F.B.) which laid down that it is open to a subsequent transferee to take the plea that the prior mortgage was without legal necessity.
9. The question still remains how far the present transferee, Inayat Ilahi, is bound by his undertaking to pay off the prior debts In the sale-deed which was executed on the 6th January 1919 in his favour it was admitted by the vendors in the clearest terms that the prior Celts contracted by their ancestors were binding on them. They purported to transfer only the equity of redemption (i.e., property subject to those mortgages) and actually left in deposit with the vendee the whole sum due in order that the same may be paid to the representatives of the prior mortgagees. Having undertaken to pay off these debts the vendee now turns round and says that he is not bound to pay them, though his sale-deed contains a very clear admission on behalf of all the members of the family who were parties to it that the prior mortgage-debts had been incurred for legal necessity and were binding on the family.
10. It is to be noted that 12 years have not yet expired since the execution of the sale deed. The vendee's title as against the whole family, therefore, rests on this document alone, that is to say, he must admit that it is under this document that he has acquired the 'property' from the whole family. This in our opinion a means that the persons who executed the document in his favour were acting on behalf of the whole family It follows therefore that the admission contained in this document must so far as the vendee is concerned, be taken to be an admission made on behalf of the whole family and that admission is that the prior mortgage-deeds were binding 6n the family.
11. And therefore even though it is true that such an admission cannot operate as an estoppel against the defendant inasmuch as there was no privity of contract between the mortgagees and him, and 'further because the plaintiffs' position has in no way been compromised there can bib no doubt that this admission is a very strong piece of evidence in favour of the view that the transactions must have been for valid necessity otherwise they would not have been accepted as such by all the members.
12. Coming to the facts we find that the dealings really go back to a very early period. The earliest document that was executed was dated the 22nd January 1873 by Har Deo the grandfather of the present mortgagors, in favour of one Ajit Singh, for a sum of Rs. 98 the whole of which had been paid in cash. It is true that this amount being secured on the family property cannot be treated as an antecedent debt in the strict sense of the term. But it having been borrowed as early as 1873 and evidence as to the actual necessity having disappeared, subsequent admission of its validity would be a very strong piece of evidence to be considered. This deed was followed a mortgage-deed of the 19th May 1873 by the same mortgagor, in favour of the same person for a further sum
13. The 5th document was dated the 5th January 1875 for a sum of Rs. 400 under which the earlier document of the 26th January 1874 was paid off and a further sum of Rs. 118 was advanced. Then we have the document of the 5th August 1875 under which the 4th and 5th mortgage needs were paid off and the balance was received in cash. All these transactions are transactions entered into by Hardeo the grandfather of the mortgagors, as early as the seventies.
14. On the Just January 1887 a mortgage by conditional sale for a sum of Rs. 3,100 was executed, in favour of the same mortgagee, Ajit Singh under which he was put in possession of the mortgaged properties and the amounts due on the earlier document of the 5th August 1875 was paid off. There is a further recital in this document that Rs. 505-7-3 were due-on account of a Munsif's Court decree and Rs. 64-8-9 were due on account of prior debts. Rupees 150 were paid in cash. There can be no doubt that this mortgage by conditional sale was fully acted upon and the mortgagee entered into possession soon after. He and his representative have been in possess on of the property since there which means that during the whole of a period of over thirty years the mortgagors' fain by has allowed this property to remain out of its possession.
15. On the 16th, June 1894 another mortgage-deed, was executed by Durga Prasad, Muhna Lal and Bhawani Prasad, the sons of hardeo, in favour of one Musammat Lachmi Bai, for a sum of Rs. 6,400. Under this document Rs. 6,100 were left with the mortgagee, to pay off the mortgage by conditional sale he validity of which was of course accepted as Rs. 300 were acknowledged to have been received in cash.
16. There can be no doubt that subsequently Musammat Lachmi Bai, the mortgagee paid off the prior mortgage and entered in to possess on of the property in place of the previous mortgagee. On the 1st of March 1897 another mortgage-deed by the same three persons was executed for a sum of Rs. 900 and the recital is to the effect that the money was required to pay off a decree for arrears of rent held by Choudhuri Sunder Singh and another and to meet certain personal expenses. The property hypothecated under this bond was the same as covered, by the mortgage by conditional sale.
17. Up to the year 1914 no attempt was made by any member of the mortgagor's family to challenge any of these mortgage-deeds or to recover the property from the possession of the mortgagees. The family seems to have acquiesced in these transfers A third party would, therefore, "be quite, justified in presuming that the debts must have been incurred for family necessity On the second June 1914 six members of the I am by namely, Bhawani Prasad, acting in his own right and as guardian of his sons Bansi Dhar and Raghubar Singh 16 Ind. Cas. 629 : 10 A.L.J. 113 Gaya Prasad, 15 A. 339 : 20 I.A. 116 : 6. Sar. P.C.J. 313 : 17 Ind. Jur. 425 : 7 Ind. Dec. (N.S.) 934 (P.C.) Kalka Prasad for self and as guardian of his minor son Sarup Singh 11 Ind. Cas. 220 : A. 783 : A.L.J. 190 (F.B.) Murlidhar, 39 Ind. Cas.280 : 39A.437 at P. 442 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. I.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 44 I.A. 126 (P.C.). Sheo Narain for self and as guardian of his minor sons Sughar Singh, Babu Ram and Chute Tua and (6) Sanet Singh in his own right and as guardian of Maharaj Singh executed the documents in suit under which the amounts due under the previous mortgage-deeds of 1894 and 1897 mentioned above were left with the mortgagees to be paid of and the balance of Rs. 500 was said to have been required for purchasing com for daily consumption and meeting the expenses of the execution and the registration of the deeds.
18. It was some years after these mortgage deeds that Inayat sahi obtained a sale-deed on the 6th January 1919 in which there was a fresh admission on behalf of the mortgagors that the two mortgage-debts in question bad been val. diy incurred and were binding on the family.
19. It is true that in a case where a mortgagee whishes to enforce a charge against the family property the burden lies on him to satisfy the Court that the mortgage transaction has been entered into for family necessty or in lieu of antecedent debt or with the consent express or implied of all the members of the family In the present case we are of opinion that this burden has been sufficiently discharged In the first place the transactions extend back to the year 1873 and for all this long period there never has been any protest made by any member of the family. Furthermore there is nothing to show that in the years 1894 and 1897 there were any major members of the family alive who were not parties to the transactions and whose consent ought to have been obtained and was not obtained In fact the ages of the various defendants as given in the plaint would rather go to show that all of them or at least most of them were not even born in those years. A long series of renewals of mortgage transactions extending for over a generation without any protest by any member of the family would show its acquiescence and raise a fair presumption that if there had not been a valid necessity for them some objection would have 1 been raised The present mortgagees were not the mortgagees in the years 1894 and 1897 and so it is not a matter whit in their sepecialmeans of knowledge as to whether the amounts borrowed on these dates had been incurred for legal necessity. In view of the long continued acquiescence of all the members of the family at any rate by all the adult members of the family and the express admission contained in the sale-deed of 6th January 1919 we are of opinion that it must be held that in this case the burden of proof of legal necessity has been completely discharged. It is not now possible after the lapse of so many years to produce evidence to show for what purpose the money was borrowed or how it was actually spent by the mortgagors. All that the mortgagees are required to show is that like ordinary men they were reasonably satisfied that legal necessity must have existed. In view of the conduct of all the members of the family in allowing the property to remain out of their possession for such a long time we think that this must be taken to have been so. Even though all these sums were borrowed on the security of the family property and although there is no direct evidence to show the actual necessity to meet which all the sums were borrowed we are of opinion that the burden of proving the existence ct legal necessity must be held to have been discharged It was to pay off these debts and in that way to recover the property from the mortgagees that the mortgage-deeds in suit were executed. The family cannot now be allowed to retain the benefit and repudiate the liability.
20. We think it right to note that in the Court below with the exception of the transferee only one defendant Maharaj Singh contested one of the suits All the other defendants did not put in any appearance nor file any written statement The question of want of legal necessity was a mixed question of law and fact and none of these defendants ever attempted to raise it None of them went into the witness box to explain away their own admissions. The plaintiffs produced son e oral evidence al so which under the circumstances we do not propose to discuss. After the decrees in the two suits were passed Maharaj Singh the only defendant who was a member of the family submitted to the decrees and has not appealed. The persons who now appeal are the transferee Sheikh Tnayt Ilahi and certain other defendants who did not put in an appearance in the Court below and who did not raise the question at all. Their reluctance to submit themselves to the cross-examination suggests to some extent that they did not feel confident that they would be able to explain their previous admission The evidence of Jhau Lal in Hardeo Sahai is to the effect that Rs. 500 were taken to meet private expenses and the expenses of registration. The recital in the deed is to the same effect. The defendants have given no oral evidence to rebut it. Their own evidence would at least have shown for what purpose Rs. 500 were required. Neither the transferee nor these other defendants, who never contested the claim, can, therefore, succeed. The result is that both these appeals fail and are hereby dismissed with costs.