SHARAN BEHARI LAL Vs. KANHAIYA LAL

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for recovery of money on the basis of a simple mortgage bond dated 23-12-1931, executed by Angan Lal, defendant 1, in favour of the plaintiff, who was at the date of the mortgage and still is, an advocate practising at Mathura. The appellants are subsequent transferees of the hypothecated property and were arrayed as defendats 2 to 5 in the suit. Defendant 1 did not contest the suit. Indeed, he appeared as a witness for the plaintiff. The appellants contested the suit inter alia on the grounds, (1) that the mortgagor, Angan Lal, was on the date of the mortgage, dated 23-12-1931, a member of the joint hindu family with his brother Kunj Lal and as such, could not mortgage any portion of the property, and (2) that the plaintiff, being a legal practitioner, was prohibited from entering into a trade or business and as the advancing of a loan on the basis of the mortgage is a contract by way of trade or business, the contract is unenforceable and is void under Section 23, Contract Act. The lower Court held that Angan Lal had separated from, his brother in the year 1927 and that the rule prohibiting a legal practitioner from entering into a trade or business was a rule of discipline or conduct and did not render the individual contract void. The suit was, therefore, decreed.

(2.) IN this appeal, these two points have been re, agitated before us and no other point has been urged. [after considering the evidence on the record, their Lordships held: ]

(3.) IN our opinion, the view of the lower Court that on the date on which the mortgage in suit was executed, Angan Lal was separate from his brother, is perfectly correct.