TMI Blog1972 (7) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Court, mortgaged a house mentioned in the body of the plaint with the appellant for a sum of Rs. 10,000/- vide registered deed dated February 21, 1947. The respondents brought the suit in the learned trial Court on the ground that his house formed part of the coparcenary property and the mortgage effected by Brij Lal, their father, being without any valid necessity, was not binding upon them. Since they were in possession of the house, they prayed that a declaration in that behalf may be granted in their favour. Brij Lal had been declared insolvent and the Insolvency Court vide its order dated February 18, 1960, directed that the house be sold subject to the charge of the appellant and the proceeds thereof be placed at the disposal of the receiver for being utilized in accordance with law. The appellant in his written statement denied that the house was a joint Hindu family property qua the plaintiff-respondents and further stated that the mortgage was for legal necessity. He also submitted that the suit was barred by limitation and the two daughters of Brij Lal, namely, Tara Wati and Shimla Devi, and Bhagwanti wife of Brij Lal, had no locus standi bring in the present suit. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy Court dated November 23, 1955, the respondents were bound to prove that the debt incurred by Brij Lal was tainted with immorality. In support of this contention, he has relief on a Full Bench decision of this Court reported as Faqir Chand v. Sardarni Harnam Kaur wherein it was held that the sons could challenge the mortgage and decree only on the ground that the debt was incurred for illegal or immoral purposes and not on the ground of absence of legal necessity. The learned counsel also submitted that the mortgage deed in dispute was executed Brij Lal and Sudh Parkash and Ram Gopal sons of Brij Lal, who were the only adult members of the family at the time of the execution of the mortgage deed. This fact coupled with other evidence on the record showed that the suit filed by the plaintiffs was collusive. On the question of legal necessity, it was submitted that Jangiri Lal, the grandfather of the plaintiff-respondents, had also left debts. The house in dispute along with other property of the family was mortgaged with the family of Sunder Dass P.W. 3, which was redeemed sometime in 1946. The family was carrying on extensive business. Exhibit D-1, statement of account of the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he receiver was no a necessary party and the suit. 9. It is not doubt true that the orders dated November 23, 1955, and February 18, 1960, passed by the Insolvency Court were final between the creditors and the estate of the insolvent fact of a decree, but in view of the latest pronouncements of their Lordships of the Supreme Court the Hindu sons in a suit for declaration to the effect that the sale made by the Karta was without legal necessity were entitled to have a decree unless the mortgagee proved to the satisfaction of the Court that the mortgage was for legal necessity. In Faqir Chand v. Sardarni Harnam Kaur AIR 1967 SC 727, the Court expressly overruled the decision given in with the following observations:-- In the present case, the Full Bench of the High Court took the view that while the first and third propositions n Brij Narain's case 51 I.A. 129 : AIR 1924 PC 50 were generally applicable to the managing members of the joint families, the second proposition was self-contained and was intended to lay down an exception in the case of joint families consisting of father and sons only. The view taken was that third proposition did not apply where the joint f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entered the witness-box the appellant would have been able to prove that it was this sum of Rs. 10,000/- which the family utilized for establishing another business which continues to be the mainstay of the family. In Jagannath v. Shri Nath AIR 1934 PC 55, their Lordships observed as under:-- In Masit Ullah v. Damodar Prasad AIR 1926 PC 105, where the plaintiff sought to set aside as sale of joint family property by his great grandfather and his father was impleaded as a defendant and did not give evidence, though as the man who had used the largest part of the consideration money for the disbursement of ancestral debts he could have told in his evidence how the sum of Rs. 2,000/- was applied, it was held, as stated in the headnote, that the suit should be dismissed, as the plaintiff was liable for his great grandfather's ancestral debts, and the father, who was in collusion with his son, had deliberately withheld his evidence, which would have shown how the rest of the consideration was applied. The present case is even stronger. Ram Partap and Bhairon Nath, defendants 4 and 5, are the eldest members of the family and heads of their respective branches, which are enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o give false appearance of a genuine judicial determination, and this is generally done with the object of confounding third parties. In such a proceeding the contest is a mere sham. In the case of pre-emption it is open to the plaintiff to find financial aid from any source he likes. He has a statutory right to pre-empt the sale and it no concern of the vendees whether he borrows money from someone or otherwise arranges for finances for pre-empting the sale. It is true that is personal right and is not capable of being transferred. And the right of pre-emption being a right of substitution, the vendor also cannot in the garb of a benamidar pre-empt his own sale. But merely because the plaintiff-pre-emptors are helping their sons to exercise the statutory right conferred on the sons cannot, without more, deprive them of the right to be substituted for the vendees in exercise of their right of pre-emption. 13. The above observations made by their Lordships of the Supreme Court do not help the respondents inasmuch as they relate to a suit for pre-emption and do not supply to the fact and circumstances of the present case. As has been said already here in this case, the debt was u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In these circumstances, the learned Courts below should have decided, because of the absence of Brij Lal, Sudh Parkash and Ram Gopal from the witness-box, that a presumption could be raised that the money raised by the respondents was utilized for the business of the family. It is matter of common knowledge that when the head of the family is declared insolvent, then the other members of the family try to set up a new business so as to save it from the clutches of the official receiver. This is precisely what appears to have been done by Sudh Parkash in this case. The existence of family business which was considered credit worthy by a bank of repute and the peculiar situation created by the insolvency of Brij Lal which called for new business to be set up in the name of other members do indicate some prima facie evidence of necessity. Whatever lacuna remained was filed in by the absence of the alienors from the witness-box, as held by the Privy Council in Nagendra Nath Dey's case AIR 1932 PC 165. Taking into consideration the cumulative effect of all these circumstances. I am of the view that the alienation in question was made for valid legal necessity. 17. The last poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. The alleged gift was made on January 18, 1917, and a suit to challenge the same was filed on August 6, 1928. It was alleged before the Court that the suit was barred by time because it had been filed more than six years after the mutation of gift had been sanctioned. The Bench hearing the case repelled this contention on the ground that where a rightful owner is in possession of the property he is not obliged to sue for declaration so long as his rights add that a Hindu father has no right whatsoever to make a gift of coparcenary property. Such a gift is wholly void and so long as the donee does not take steps to dispossess the members of the joint family it would not be necessary for them to bring in a suit. These considerations do not be necessary for time bring in a suit. These considerations do not apply to a case in which the estate of the coparcenary is burdened with a debt. In such a suit the cause of action will arise in favour of the Hind undivided family on the day when the Karta or the manager under the provisions of Hindu law. In my opinion, the case is covered by a Single Bench decision of this Court reported as Behari Lal v. Dal Chand. AIR 1951 P H 341, Kapur, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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