JUDGMENT V.K. Mehrotra, J.
1. This is a defendant's second appeal.
2. Plaintiff-respondent Babu Ram brought a suit against the present appellant Onkau and his deceased father Faqir Chand at also Ram Saran, the younger brother of Faqir Chand, for recovery of a sum of Rs. 4,480/- with interest pendente lite and future. The case of the plaintiff was that Faqir Chand was the Karta of the joint Hindu family constituted by him and the other two defendants and had taken a loan of Rs. 2,000/- in the year 1952 for needs of the family including maintenance of his minor brother, and son had mortgaged the house belonging to the family as security for the loan. The plaintiff claimed that in case the amount was not paid by the defendants, the same may be permitted to be recovered by the sale of the mortgaged property.
3. The defendants, and, particularly the present appellant, contested the claim, inter alia, on the ground that the loan which hat been taken by Faqir Chand was not for legal necessity nor was it for the benefit of the estate and as such the mortgaged property, which was the property of the joint Hindu family, was not liable to be sold nor could any amount be recovered from the appellant and his uncle Ram Saran.
4. Various issues were framed by the trial court. The conclusion to which the trial court arrived was that the plaintiff, upon whom lay the burden, had failed to establish that Faqir Chand had taken the loan for any legal necessity for the benefit of the estate. As such, the claim of the plaintiff for recovery of the amount from the defendants or by sale of the mortgaged property was dismissed.
5. The case of the plaintiff during trial was that .Faqir Chand had to borrow the amount from him because he needed it for the purpose of the family business; that the amount was needed for the repair of the ancestral house and that it was also needed for the maintenance of the appellant as also his uncle Ram Sanin who were minors. The trial court, on appreciation of the evidence on record, concluded that Faqir Chand was not the Karta of any joint Hindu family consisting of his brother Ram Saran who had separated prior to the year 1952. As such, according to the trial court, the share of Ram Saran in the property in suit could not be held liable for repayment of any loan which might have been taken by Faqir Chand. The finding also was that the plaintiff had failed to establish that there was any necessity for Faqir Chand to borrow any amount for the purpose of any family business or for effecting repairs to the house or even for maintenance of any minors in the family. The suit was, consequently, dismissed by it.
6. In an appeal filed by the plaintiff-respondent, the lower appellate court affirmed the finding recorded by the trial court to the effect that there was no joint Hindu family which included Ram Saran and of which Faqir Chand was the Karta in the year 1952, It, therefore, also affirmed the conclusion of the trial court that the share of Ram Saran could not be made liable for any loan which might have been taken by Faqir Chand. The conclusion of the lower appellate Court was that Faqir Chand and his son Onkar, the present appellant, had 1/3rd share in the property. This share, according to the lower appellate Court, could be held liable for the repayment of the loan taken by Faqir Chand if the amount had been taken for legal necessity of the family or for the benefit of the estate. The lower appellate Court reversed the finding of the trial court in this respect. It held that the plaintiff had succeeded in establishing the necessity for the loan arising, at least, on account of the need for the maintenance of the present appellant who was a minor. The appellate Court proceeded to hold that the plaintiff had failed to establish that the debt had been contracted by Faqir Chand for any immoral purpose. No clear finding was, however, recorded by the trial court about the fact as to whether Faqir Chand needed the money for effecting repair to the house and also whether the loan had been taken by him for the purpose of family business. The lower appellate Court eventually took the view that the present appellant was liable for repayment of the amount of loan taken by his father Faqir Chand on the principle of pious obligation, after recording a finding that the loan was not shown to be 'avyavharik'. It, therefore, decreed the plaintiff's claim for recovery of the amount of Rs. 4,480/- against the appellant with pendente lite and future interest failing which the plaintiff was held entitled to recover the same by sale of 1/3rd share of Faqir Chand in the mortgaged property. Aggrieved, the present appellant has approached this Court in this second appeal.
7. The submission of Sri G. P. Bhargava, appearing for the appellant, is that the trial court had recorded a categorical and clear finding in the case on the question as to whether the loan had been taken by Faqir Chand for any legal necessity or not. The lower appellate Court, proceeds the submission, failed to address itself to that question in accordance with law or to record a finding in respect thereof on settled legal principles. The argument also is that a perusal of the judgment of the lower appellate Court makes it clear that it has not taken into consideration a relevant circumstance, namely, whether the income which admittedly was being received by the family of which Faqir Chand was the Karta from the rental of the house was enough for the purpose of maintaining the present appellant whose maintenance was put forward as a ground for taking the loan by Faqir Chand. The precise submission is that before a finding can be reached that a debt had been contracted for legal necessity or for benefit of the estate, the court must address itself to the question as to whether the amount taken as loan was necessary for being so taken having regard to the income which the family otherwise enjoyed. In this connection, my attention has been drawn to the finding recorded by the trial court that in the year 1952, namely, at the time when Faqir Chand took the loan, there was rental income of Rs. 300/- per month from the house. It is argued that the trial court had taken into consideration this aspect of the matter and had found that it was not necessary in that situation to have borrowed a sum of Rs. 2,000/- for the maintenance of the minors. The lower appellate Court, proceeds the submission, has totally overlooked this aspect of the matter in arriving at a finding that the plaintiff had succeeded in establishing the legal necessity for the loan taken by Faqir Chand for the purpose of maintaining the minors.
8. The submission of Sri Bhargava has substance. The mere fact that some amount was taken as loan and that there was necessity for contracting the debt for the maintenance of the family and the minors is not enough to hold that the entire amount of loan was for legal necessity. Before the joint Hindu family can be held liable for discharging the debt taken by the father, as in the present case, it must be found with precision as to whether the entire amount of loan was really needed for the benefit of the family or not. In a case like the present, where the lower appellate Court has upheld the transaction of loan as being for legal necessity on the ground that the amount was needed for maintenance of the appellant who was a minor in the year 1952, it was incumbent upon it to have gone into the question whether the entire amount was really needed, having regard to the income of the family from other sources. The son then a minor, could be saddled with liability only to that extent, out of the loan taken by the father, which was essential for his maintenance and that of the estate. This aspect of the matter was looked into by the trial court. The lower appellate Court, however, failed to go into it.
9. In Dudh Nath v. Sat Narain Ram (1966 All LJ 107: (AIR 1966 All 315)), a Full Bench of this Court ruled that an alienation of ancestral joint family property by a Hindu father is not binding upon his son if it was made for inadequate consideration, even though there was legal necessity. True, the Full Bench was dealing with a case wherein the question of adequacy of consideration was up for determination yet, the decision recognises the principle that there must be some correlation between the need of the family and the extent of its liability to discharge the debt contracted by the father or any alienation made by him. That principle should be available in a case like the present as well and the extent of the liability of the son or the consequential liability of the ancestral property must be determined even though the reason for which the debt was contracted by the father may be said to be constituting legal necessity for the same. Inasmuch as, the lower appellate Court has not examined the question of the extent of the liability of the present appellant and thus of the l/3rd share of the branch of Faqir Chand in the ancestral property for repayment of the amount of loan taken by Faqir Chand, the case deserves to be sent back to it.
10. The judgment and decree of the lower appellate Court is, therefore, set aside and the matter sent back to it for decision afresh in accordance with law. Since no one has appeared to oppose the present appeal, the appellant is directed to bear his own costs.