1925 JTR(SC) 13
1925 AIR(PC) 169 ; 1925 22 LW 306 ; 1925 27 BomLR 853 ; 1925 47 ILR(All) 459
Privy Council
Ameer Ali, Sir John Edge, Carson, Justice Shaw, JJ.
Gajadhar Mahton -Appellant
Versus
Ambika Prasad Tewari and others -Resopndent
Privy Council Appeal No. 17 of 1924, from Allahabad Appeal No. 7 of 1922
Decided On : 13-03-1925
To bind a joint Hindu family by the acts of its managing member, the plaintiff must prove legal necessity. Furthermore, a claim for personal liability cannot be introduced at the final appellate stage if it was not pleaded in the original plaint.
Act
Referred
:CIVIL PROCEDURE CODE
: S.35, O.6 R.17
(A) Joint Hindu Family (Mitakshara) - Onus of proving legal necessity - To bind a joint family by the acts of the managing member, the burden of proof to establish legal necessity lies on the plaintiff.
(B) Civil Procedure Code - Amendment of plaint - A claim for a decree on a personal covenant cannot be entertained if such a case was not made in the original plaint or urged before the lower courts; the discretion to allow an amendment at the final appellate stage may be declined.
Facts of the case:
A money-lender brought a suit for the enforcement of a mortgage executed by a managing member of a joint Hindu family, alleging the loan was taken for legal family necessity. While the trial court decreed the sale of the mortgaged property, the High Court reversed the decision, holding that the plaintiff failed to establish the required legal necessity.
Findings of Court:
The court found that no legal necessity was established to bind the joint family. It further held that a claim for a simple money decree based on a personal covenant could not be granted as it was not pleaded in the original plaint or during the proceedings in the High Court.
Issues: Whether the joint family is bound by a mortgage created by the managing member in the absence of proven legal necessity, and whether a personal decree can be sought at the appellate stage if not prayed for in the original suit.
Ratio Decidendi: The burden of proving legal necessity to bind a joint family by the acts of its managing member rests with the plaintiff. Additionally, a new claim for personal liability cannot be introduced at the final stage of appeal without an amendment of the plaint, and such amendment is subject to the court's discretion.
Result: Appeal dismissed.
(B) Civil Procedure Code - Amendment of plaint - A claim for a decree on a personal covenant cannot be entertained if such a case was not made in the original plaint or urged before the lower courts; the discretion to allow an amendment at the final appellate stage may be declined.
Facts of the case:
A money-lender brought a suit for the enforcement of a mortgage executed by a managing member of a joint Hindu family, alleging the loan was taken for legal family necessity. While the trial court decreed the sale of the mortgaged property, the High Court reversed the decision, holding that the plaintiff failed to establish the required legal necessity.
Findings of Court:
The court found that no legal necessity was established to bind the joint family. It further held that a claim for a simple money decree based on a personal covenant could not be granted as it was not pleaded in the original plaint or during the proceedings in the High Court.
Issues: Whether the joint family is bound by a mortgage created by the managing member in the absence of proven legal necessity, and whether a personal decree can be sought at the appellate stage if not prayed for in the original suit.
Ratio Decidendi: The burden of proving legal necessity to bind a joint family by the acts of its managing member rests with the plaintiff. Additionally, a new claim for personal liability cannot be introduced at the final stage of appeal without an amendment of the plaint, and such amendment is subject to the court's discretion.
Result: Appeal dismissed.
Legal Necessity - Enunciates the principle applicable when seeking to bind a joint family by the acts of its managing member based on legal necessity.
H. Polak, Gould, Franklin, Pyke, J. M. Parikh, L. DeGruyther
Mr. Ameer Ali.:-
This is an appeal from a judgment and the decree of the High Court of Allahabad dismissing a suit brought by the appellant for the enforce ment of a mortgage executed in his favour by one Jai Gobind Tewari on the 28th of August, 1907. Jai Gobind Tewari was a member of a joint Hindu family subject to the Mitakshara and apparently manag ed the family business.
The suit was brought before the Sub ordinate Judge of Basti against all the members of the joint family ; and some transferees of part of the property were joined as defendants.
The plaintiff who is a money-lender al leges that Jai Gobind Tewari had borrow ed from him two sums of money which in the aggregate amounted to Rs. 2,715 on two bonds, for legal family necessity, and for this amount be passed the mortgage bond in suit.
The defendants 3 to 6, who alone con tested the suit, urged it was not for legal necessity or family benefit as the plaintiff alleged.
The Subordinate Judge decreed the plaintiff's claim for sale of the mortgaged property under R. 4, C. 34 of the Civil Procedure Code.
The High Court on appeal came to the conclusion that the onus was on the plain tiff to establish legal necessity in order to bind the joint family by the acts of Jai Gobind and that he had failed to prove such necessity. They accordingly dismissed the claim. The plaintiff has appealed to His Majesty in Council from this order of dismissal.
Their Lordships have heard learned Counsel for the appellant at considerable length and they find themselves in agree ment with the High Court in holding that no legal necessity is established. The principle applicable to a case where it is sought to bind the joint family by the acts of the managing member has been clearly enunciated by Lord Justice Knight Bruce in the case of Hunoomanpersaud Pandey v. Mt. Babooee Munraj Koonweree (1854-57) 6 MIA 393 : 18 WR 81 : 2 Suther 29 : 1 Sar 552 (PC).
Their Lordships think that the decree of the High Court is right and that the appeal should be dismissed.
But it has been contended that even if the joint family is not bound by the mort gage created by Jai Gobind Tewari, he is liable on the personal covenant for the debt contracted by him. No such case was made in the plaint or urged before the High Court, nor is any such case made in the grounds of appeal before their Lordships or in the case as originally lodged by the appellant. The claim was for a mortgage decree. According to Counsel's statement it was only when the appeal came into his hands that the idea of a decree on the personal covenant oc curred to the plaintiff's advisers. Their Lordships are of opinion that having re gard to the circumstances of the case the claim for a simple money decree against Jai Gobind urged before the Board can not be entertained. No such decree could be made without an amendment of the plaint ; and although it is in their Lord ships' discretion to allow an amendment even at the last stage, they do not think that this is a case in which that discre tion should be exercised.
As regards the respondents' costs they appear to have lodged a case but did not appear at the hearing. They are clearly entitled to their costs up to that stage. The rule in such circumstances is stated in Mr. Norman Bentwich's "Practice of the Privy Council in Judicial Matters" on page 337 as follows :-
"When respondents lodged a case, but did not appear at the hearing, the appeal was dismissed with costs to be paid to respondents down to the lodging of the case, and ordered to be paid out of the deposit placed in the registry as security." Their Lordships will humbly advise His Majesty to dismiss the appeal with costs to the respondents up to the lodging of the case.
Appeal dismissed.