History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.664

v4.c63.664

⁷⁵⁷ At pp. 423 and 424 of 6 Moore's Indian Appeals the Privy Council employ the following words that have become classical: 'The power of the manager for an infant heir to charge an estate not his own is under the Hindu Law a limited and qualified power. It can only be exercised rightly in a case of need or for the benefit of the estate. The actual pressure on the estate, the danger to be averted or the benefit to be conferred upon it in the particular instance, is the thing to be regarded....They think that if the lender does inquire and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge and they do not think that under such circumstances, he is bound to see to the application of the money'. The words 'the actual pressure, the benefit to be conferred' and the remarks about inquiry by the lender are a prolific source of litigation and have given rise to a mass of case-law. In L. R. 51 I. A. 129 at p. 137 the Privy Council themselves say that the distinction made between secured and unsecured debts of the father is anomalous. They give an instance. 'A father who is manager borrows a like sum from A and B. To A he gives a mortgage on the family estate containing a personal covenant. To B he gives a simple acknowledgment of loan. B sues and gets a decree; on this decree execution can follow and the estate can be taken. A, suing on his mortgage, cannot recover' (because the debt was not antecedent).