FAQIR CHAND Vs. SARDARNI HARNAM KAURDEAD

JUDGEMENT

(1.) Murari Lal is the manager of a joint family consisting of himself and his son, Faqir Chand. On June 7, 1949, he borrowed Rs. 75,000/- from Sardarni Harnam Kaur, and by a registered deed of the same date, he mortgaged an immovable property for securing repayment of the loan. The mortgaged property belongs to the joint family. By a covenant in the mortgage deed, Murari Lal bound himself to repay the loan. Part of the loan was borrowed by Murari Lal for discharging an antecedent mortgage debt. On July 4, 1952 Harnam Kaur instituted Suit No. 219 of 1952 against Murari Lal claiming the usual preliminary decree for sale of the property. On March 13, 1953, Faqir Chand instituted the present suit against Harnam Kaur and also Murari Lal claiming a declaration that the mortgage deed was for immoral and illegal purposes and without legal necessity and was not binding on him and for consequential reliefs. On April 20, 1953, Harnam Kaur obtained a preliminary decree for sale in Suit No. 212 of 1952. Thereafter Faqir Chand obtained an order for amendment of the plaint in his suit and by the amended plaint he claimed a declaration that the decree passed in the mortgage suit was not binding on him. The trial Court raised several issues of which issues Nos. 2 and 3 only are material. They are as follows:

(2.) The object of the suit and this appeal is to prevent the sale of the mortgaged property in execution of the mortgage decree. Accordingly the appellant obtained an order for stay of sale of the property. In view of the stay, order the sale of the property has not yet taken place. The first and the main question arising in this appeal may be formulated thus in a case where a father mortgages a property of a joint family consisting of himself and his sons for payment of his debt but the mortgage is neither for legal necessity nor for payment of his antecedent debt and the mortgagee has obtained a decree against the father for sale of the property but the sale has not yet taken place have the sons any right to restrain the execution of the decree or the sale of the property in execution proceedings without showing either that there is no debt which the father is personally liable to repay or that the debt has been incurred for an illegal or immoral purpose We think that this question should be answered in the negative.

(3.) In Brij Narain v. Mangla Prasad 51 Ind App 129 at p. 139 (AIR 1924 PC 50 at p. 56) the Privy Council laid down five propositions, of which the following there are material for the decision of this appeal: