JUDGMENT
1. First Appeal No. 35 of 1928 and First Appeal No. 97 of 1928 are cross-appeals by the defendant and the plaintiff respectively and arise out of the same suit.
2. It appears that one Ganeshi Lal had given authority to his wife to adopt a son and in pursuance of that authority she adopted Har Bilas and executed a deed of adoption on 5th May 1892. This Har Bilas subsequently adopted Ram Bahadur in 1902. For the purposes of this suit it has been admitted by the defendant-appellant that this adoption may be accepted as valid. In 1917 Har Bilas and his adopted son Raj Bahadur constituted a joint Hindu family. On 5th December 1917 Har Bilas executed a sale deed in favour of Ram Prasad, son of Lala Ballu Mal, the present appellant. This deed is printed on p. 37 of the paper-book and was for Rs. 34,000. Har Bilas described himself as the absolute owner in possession of the property transferred and also alleged that he had no partner or cosharer who might stand in the way of the transfer. But he did not expressly refer to his adopted son Raj Bahadur nor did he attempt to repudiate the alleged adoption.
3. The plaintiff Kanhaiya Lal obtained a simple money decree for Rs. 5,000 in 1916 against Lala Har Bilas and Raj Bahadur and in execution of that decree attempted to attach the property covered by the sale deed of 5th December 1917. The transferee Ram Prasad raised objections in the execution proceedings which were allowed and the property was released from the attachment on the ground that the property had been previously transferred to Ram Prasad. Kanhaiya Lal has, therefore, instituted the suit for a declaration that the said property is attachable and saleable in execution of his money decree and that the defendant transferee has no rights or interests in this property. In the plaint no specific case was put forward that the transfer was good to the extent of a half share and was invalid to the extent of the remaining half.
4. The contesting defendant Ram Prasad took several pleas the principal ones out of which were that the plaintiff has no right to maintain the suit and that the sale in his favour was for family necessity and valid and binding. The learned Subordinate Judge has found the issue relating to legal necessity in favour of the defendant but has decreed the claim in respect of the half interest of Raj Bahadur in the property on the sole ground that Har Bilas when he executed the sale deed represented himself as the absolute owner of the property transferred and was not acting in his capacity as a Hindu father or a manager of a joint family property.
5. The learned Subordinate Judge has considered that the earlier mortgage-deed of 8th June 1917, taken with the sale deed of 5th December 1917, goes to show that Har Bilas was representing himself as absolute owner of the transferred property and was expressly denying the existence of any son to him. Both the mortgage deed and the sale deed are in favour of Ram Prasad but the two transferees are different persons. The mortgagee was Ram Prasad son of Lala Bansi Dhar whereas the vendee is Ram Prasad son of Lala Ballumal. It is possible that the learned Subordinate Judge has confused the two names and has thought that the vendee himself had previously taken the mortgage. So far as the sale deed is concerned there is no express denial of the existence of any son. As a matter of fact there is no reference to any son at all. The deed is in a stereotyped form which is quite common. It may, however, be said by implication that Har Bilas was alleging that he was the absolute owner and had no cosharer with him, i.e., he was not admitting the existence of any member of his family.
6. The learned Judge has relied mainly on the authority of Balvant Singh v. R. Clancy [1912] 34 All. 296. In that case the mortgage was executed by the elder brother Sheo Raj Singh to which the younger brother Maharaj Singh had also joined. It was expressly stated in the deed that Maharaj Singh had no interest in the property at all and Sheo Raj Singh alone was the sole proprietor. This claim was put forward on an alleged impartibility of the estate. The debt to pay off which this deed was executed was due from their deceased father but the High Court found and that finding was accepted by their Lordships of the Privy Council that the debt had been contracted by him for the purposes of immorality. Thus it was not a good antecedent debt which would be binding on the family estate at all. The elder brother had never professed to be the manager of the joint Hindu family, and their Lordships on p. 303 remarked:
in face of that deed it could not be contended that the Bank lent the money to Sheo Raj Singh as manager of the joint Hindu family which consisted of himself and Maharaj Singh.
7. On the same page their Lordships pointed out that Sheo Raj Singh was not an ancestor or a predecessor of Maharaj Singh.
8. He was on the date of the mortgage merely a cosharer and executed the deed in his assumed position as the absolute owner of an impartible estate. Maharaj Singh had been joined in the deed in order to show that he had consented to the transaction and was admitting the absolute proprietary interest of his elder brother. It was found in the case that Maharaj Singh at that time was a minor. It does not appear that the position taken up on behalf of Maharaj Singh was that the whole transaction was a nullity and the whole suit ought to be dismissed. It is noteworthy that Maharaj Singh was pleading that the mortgage-deed was not binding on him and did not affect his interest in the estate. The High Court held that Maharaj Singh's interest in the estate was not affected by the mortgage and that decree was upheld by their Lordships. It is obvious that even as a Hindu manager Sheo Raj Singh had no authority to transfer the property in payment of the immoral debts of his deceased father. The fact cannot also be lost sight of that Sheo Raj Singh's position was not that of a Hindu father, whose debts it is the pious duty of his son to discharge. A Hindu father has undoubtedly authority to transfer the family property in order to discharge his own antecedent debts provided they are not tainted with illegality or immorality. A mere omission to assert in the deed that he was a Hindu father or that he was a manager of a Hindu family cannot necessarily be fatal and deprive him of the authority which under the Hindu law he possesses. So long as the family is a joint Hindu family no coparcener has a separate and defined share in the family property and is not entitled to transfer or charge his separate share. Either the whole interest passed and the transfer is good or the whole transaction falls to the ground. We may in this connexion refer to the leading case of Sripat Singh Dugar v. Prodyat Kumar A.I.R. 1916 P.C. 220, decided by their Lordships of the Privy Council where in spite of the fact that the transfer had taken place of the rights and interests of the judgment-debtor, who was in that case the father their Lordships held that the whole interest in the family property had passed. In the leading case of Brij Narain, Bai v. Mangala Prasad A.I.R. 1924 P.C. 50 their Lordships have laid down that if the manager is the father and the reversioneries are the sons he may by incurring debt so long as it is not for an immoral purpose, lay the estate open to be taken in execution proceedings upon a decree for payment of that debt.
9. It therefore seems to us that if the transaction itself was good and was such as would be authorised and would be binding on the joint family property, the mere fact that Har Bilas did not describe himself as the manager of the joint Hindu family would not make it unauthorized. The learned Subordinate Judge has taken too technical a view and if such a view were accepted the result would depend entirely on the language used in the deed depending more or less on the skill of the petition-writer or the scribe.
10. It is therefore necessary to consider whether the transaction itself was such as would bind the family. The sale consideration of Rs. 34,000 consisted of Rs. 1,000 paid as earnest money (there appears to be a mistake in the certified copy filed) a few days earlier and Rs. 25,000 were left for payment of the previous possessory mortgage of 8th June 1917. The balance of Rs. 8,000 was paid at the time of the registration.
11. It is not incumbent on the defendant to establish that the previous mortgage-deed of 8th June 1917, which was an entirely independent and separate transaction, antecedent both in reality and in fact, was supported by legal necessity. The debt constituted an antecedent debt for the payment of which the father was entitled to transfer his family property. That must be upheld as a good debt. As regards the balance of Rs. 8,000 the evidence is all one sided. In the deed there is a clear recital that Har Bilas, who was the proprietor of a firm known as Ganeshi Lal Harbilas wanted to sell the property in order to pay up the previous mortgage debt and the surplus money was required by him for carrying on his business which was expected to be beneficial to him. Ram Prasad the vendee has gone into the witness-box and has positively stated that the sale deed, was executed for business needs and for paying up the previous mortgage and that money was required by Har Bilas for his business needs and for repairing his residential house. There is no evidence to the contrary. The learned Subordinate Judge has found the issue as to the existence of legal necessity in favour of the defendant and has held that the entire sale consideration was for family necessity.
12. We may further note that in view of the recent pronouncement of their Lordships of the Privy Council it is not necessary to scrutinize all the details of the sale consideration if we are satisfied that the transaction itself was for legal necessity. We have no hesitation in accepting the learned Subordinate Judge's view on this point, and we accordingly hold that there was legal necessity for the sale inasmuch as the bulk of the consideration was required for payment of an antecedent debt and the rest for other necessities. It cannot be contended that a father is not entitled to borrow money for the purpose of carrying on an existing business.
13. The other objection taken on behalf of the defendant was as to the plaintiff's right to challenge the alienation in favour of the defendant. The plaintiff is a mere attaching creditor who has failed in the execution department. He has not yet purchased the property which he asserts has not passed to Ram Prasad. Had he been a purchaser, we would have been bound by the decision in the Full Bench case of Muhammad Muzammilullah Khan v. Mithu Lal [1911] 33 All. 783 to hold that he had the locus standi to challenge the alienation in favour of the defendant-appellant. There is, however, no clear authority which has been brought to our notice which extends that principle to the case of a mere attaching creditor. If the transfer by a Hindu father were merely voidable so that the property would pass for the time being and an option would remain with the other members of the family to avoid it, it would be doubtful whether there is any attachable interest of the other members of the family left which can be seized by a simple money creditor. On the other hand if the transfer were absolutely void ab initio the property would remain vested in the family and the other coparceners and the creditor might well be able to attach his interest. In the view which we have taken of this case on the main question we do not think it necessary to go into this further question.
14. We accordingly dismiss First Appeal No. 97 of 1928 and allow First Appeal No. 35 of 1928 and modifying the decree of the Court below dismiss the suit in to with costs in both Courts.