Bapna, J.
1. This is a second appeal by the plaintiffs in a declaratory suit.
2. Respondent No. 1 Chhagan Lal obtained a money decree on the basis of a mortgage-deed executed by Ladurara against his son and legal representative Gangadhar. When the decree was put in execution and the mortgage property was attached, the appellants Sohan Lal and Gokalchand, minor sons of Gangadhar, Mst. Mooli, widow of Kushalchand, and Mst Ganpati, widow of Ladu Ram, instituted a suit for declaration that the house property attached was joint Hindu family property and not liable to be sold in execution of the decree, which was for the enforcement of a mortgage, as the said mortgage was not binding on the members of the family.
The trial Court, after evidence, decreed the suit, but on appeal that judgment was set aside. It was held by the first appellate Court that the mortgage had been effected for an antecedent debt by the manager of the joint Hindu family and further the plea of want of legal necessity was barred on the principle of res judicata. The appeal was accordingly allowed and the suit was dismissed. The plaintiffs have come in second appeal.
3. Ladu Ram and his son Gangadhar obtained a loan of Rs. 4300/- from Chhagan Lal and Bhonrilal at Calcutta on 15-4-1936, in terms of an agreement of the same date that the loan was taken on security of their house property at Sikar. The receipt Ex. D-l was executed by both Ladhuram and Gangadhar. The mortgage-deed Was executed on 18-9-1936, at Sikar by Laduram alone mentioning the fact that Laduram and his son Gangadhar had obtained the loan on 5-4-1936, at Calcutta, and had agreed to mortgage their house property at Sikar, and that the mortgage-deed was being executed in pursuance of that agreement by Laduram as manager of the joint Hindu family in respect of their house at Sikar so that Rs. 2700/- were payable to Chhagan Lal and Rs. 1600/- to Bhonrilal, and authorising each one of them to institute a suit separately in case the amount was not repaid within 5 years.
The house property was one-third share in the Haveli and two Nonras situated at Sikar, MOhalla Mudhoganj. Chhagan Lal instituted the suit to recover the mortgage-money of Rs. 2700/-with interest thereon in the Court of Sub-Judge, Sikar, against Gangadhar as the heir and legal representative of Laduram (Suit No. 128 of 1943-44): It appears from a perusal of the copy of the judgment that Gangadhar took a plea that the loan was not for legal necessity. The finding of the Court was that the mortgage deed contained a recital that the money was borrowed for the expenses of the joint family, and that the allegation of Gangadhar that he had no knowledge of the transaction was untrue, because the receipt, which preceded the mortgage, was admittedly signed by him. It was held that the vague suggestion of the defendant that the money may have been taken by Laduram for speculation was not substantiated. The Court, therefore, held that the amount of Rs. 2700/- Was borrowed for legal necessity, and the issue was decided against Gangadhar. The Court gave a decree for Rs. 3500/- with costs to be paid by the defendant within six months of the date of the decree, namely, 7-8-1945.
4. The present suit was instituted on 7-7-1947. The relationship of the plaintiffs and Gangadhar will be evident from the following genealogical table:
Kushalchand = Widow Mst. mooli
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Laduram = Widow Mst. Ganpati
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Gangadhar
_______|____________
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Sohanlal Gokulchand.
5. The findings of the lower Court that the mortgage was for antecedent debt is clearly erroneous. The debt must be antecedent not only in time, but also in fact. In the present case, although the loan was taken on 5-4-1936, and the mortgage was effected on 18-9-193.6, the two transactions were one and the same. In the mortgage deed it is mentioned that it was being executed in pursuance of the agreement dated 5-4-1936, in which it had been agreed upon that the loan was granted on 5-1-1936, at Calcutta, and would be secured by a mortgage. To the same effect is the receipt Ex. D. 1 which was passed on 5-4-1936, at Calcutta. As the property was situated in Sikar, and the loan was taken at Calcutta, the mortgage-deed came to be executed after some time of the loan, although it had been agreed upon even at the time of the loan that it would be secured by the mortgage. The debt was, therefore, not antecedent in fact to the mortgage of 18-9-1936, although it was so with reference to time.
6. Counsel for the respondent laid great stress on his alternative contention that the plea of the plaintiffs in respect of want of legal necessity was barred on the principle of res judicata. He cited two authorities, viz., Sheo Shanker Ram v. Mt. Jaddo Kunwar, AIR 1914 PC 136 (A) and Lingangowda Dod-Basangowda Patil v. Basangowda Bistangowda Patil, AIR 1927 PC 56 (B) in support of the proposition that the manager of a Joint Hindu family effectively represents the other co-parceners and that a decision against the managing member is binding on the other co-parceners as well. As a general proposition the law enunciated must be readily acceptable. The right to object is not on the ground of non-joinder but on the principle of Hindu Law that a managing member, even if he is a father, has only restricted rights of alienation of joint Hindu family property. It has been held that a decree against the father or managing member of the family in enforcement of a mortgage is not binding on the other co-parceners, even if the manager had taken the plea of want of legal necessity or benefit of family in a suit filed by the creditor and failed.
Rajeshwar Dube v. Ram Sanmukh Misir AIR 1939 All 6 (C). This is so because obviously the executant of the mortgage is estopped from denying the correctness of the recitals made by him, and on the faith whereof the creditor may have been led to advance the loan. The other co-parceners are however, not bound by the recitals and the burden of proof of the legal necessity of benefit of family is on the creditor. Seth Kishori Lal v. Bhawani Shankar AIR 1940 PC 145 (D). The lapse of time does not affect the question f onus of proof though that circumstance may affect the value of evidence or the weight thereof.
7. In the present case, although Gangadhar took up the plea of want of legal necessity, it is obvious that he was party to the loan himself, and had also entered into an agreement to mortgage the family property. Ha could obviously be not permitted to challenge the mortgage to which he had consented. It has been held in several cases that the consent of all the coparceners does away with the requirement of the legal necessity or the benefit of the family to support the alienation. This is based on the text of Vivadachintamani, which says that:
'What, belongs to many may be given with their consent. Joint ancestral property may be given with the consent of all the heirs.'
Any want of capacity on the part of the manager to alienate the family property may be supplied by the consent of the coparceners. Gangadhar's denial of the existence of legal necessity could not be accepted by the Courts, as he himself was party to the transaction and the suit against Gangadhar was also brought against him as legal representative of Laduram.
Although he may then have been the manager of the joint Hindu family, his position was not the same vis-a-vis the other minor members of the coparcenary, inasmuch as he had become party to the contract of loan and impliedly to the mortgage as well, while the other roparceners were free from any disability attaching to Gangadhar and were entitled to raise the plea of want of legal necessity or benefit to the family in respect of the loan which had been obtained by their father and grandfather. The plea of the present plaintiffs, Sohan Lal and Gokul Chand, is, therefore, not barred on the principle of res judicata.
8. As held by their Lordships of the Privy Council the burden of proof is on the creditor who wants to support the alienation. Only two witnesses were produced on behalf of the creditor Chhaganlal viz., the creditor himself and Jhuntalal. Jhuntalal only proved the execution of the mortgage deed by Ladu Ram. Chhaganlal only said that this monthly was taken for the household expenses of the plaintiffs, but was unable to say the detail of the need of any such expenses. He said that he did not know for what expenses of the family the loan was taken. The statement of the creditor alone is not sufficient to Drove that the lone was taken for legal necessity.
It is not necessary to discuss the evidence led by the plaintiffs. What is said on their behalf is that Ladu Ram used to do wagering transactions, and the loan may have been taken for such transactions. That evidence is not quite sufficient to prove that the debt was taken for illegal purposes, but the burden of proof of the validity of the transaction was on the creditor, and the creditor has failed to discharge that burden.
9. As a result, the appeal is allowed, thejudgment and decree of the first appellate Courtare set aside, and that of the trial Court restored with costs throughout, and the house propertywhich is the subject of mortgage by deed dated18-9-1936, is declared not liable to attachment andsale in execution of the decree obtained by Chhaganlal in suit No. 128 of 1943-44.