Kamla Prasad vs Nathuni Narayan Singh and others

Coutts, J.—This was a suit brought on a mortgage bond for Rs. 500 executed by Kamla Prasad, Defendant No. 1, as the karta of the Joint family and certificated guardian of his minor brothers. The suit was decreed in the Court of that instance on contest as against Defendants Nos. 2 to 5 and ex parte against the other Defendants: but on appeal to the District Judge this decree has been passed ex parte as against the Defendant No. 1.

The principal questions which arose in the suit were, whether there was any legal necessity for the loan and whether the Defendant No. 1 was the karta of the family. With regard to the question of the Defendant No. 1 being the karta of the family there appears to be no doubt that this is so but as regards legal necessity the learned District Judge has found that there was no proof of legal necessity except in regard to a sum of Rs. 160, and he says that if the bond had been otherwise a good bond as a mortgage of joint family property he would have passed a mortgage decree for Rs. 160 with interest at the bond rate against all the Defendants : but he found that there is a defect in the bond inasmuch as Kamla Prasad executed it as karta and certificated guardian of his brothers.

As the learned District Judge has said the law is that the head of a joint family cannot mortgage the joint family property without consultation with, and consent of, the other members, but where legal necessity is proved it is unnecessary to prove consent because this will be implied as in the present case. If Kamla Prasad had executed the bond as karta of the family the consent of the other members would have been assumed, but one of the other members Lachmi Narayan was of age at the time of the execution of the bond and Kamla Prasad executed the bond as certificated guardian of Lachmi Narayan, and, as the learned District Judge very justly remarks, this recital in the bond negatives all idea of consent of Lachmi Narayan, so that there is a defect in the bond.

There can be no doubt that the view of the law which has been taken by the learned District Judge in the matter of the decree against the Defendant No. 1 is the correct view. Kamla Prasad mortgaged a certain property as having a right to do so: he had in fact, however, no title, but as title to a portion of the property has now cane to him he must make good his representation to the extent of the property which has come to his hands. This is undoubtedly the correct view of the law and the learned District Judge has rightly passed an ex parte decree against this Defendant.

I see no reason to interfere and would dismiss this appeal with costs.

Das, J

I agree.