SAKARCHAND SATIDAS Vs. NARAYAN SAVLA VANI

JUDGEMENT

(1.) IN the suit from which this appeal arises, an alienation made by defendant 6, who is the father of plaintiffs 1, 2 and 3 and the husband of plaintiff 4, was challenged. The alienation was a mortgage dated 6-6-1932, and the alienation was in favour of defendants 1 to 5. The trial Court upheld the challenge and declared that the mortgage was not binding upon the plaintiffs' share which he assessed at four-fifths.

(2.) IN this appeal Mr. Merchant on behalf of the alienees has first contended that there is no evidence which would justify a finding that the property alienated was joint family property. The plaintiffs came to Court on the allegation in their plaint that the property was joint family property and that allegation was met by defendants 1 to 5 by the assertion that the property was alienated by defendant 6 for legal necessity. Defendants 1 to 5 in their written statement did not controvert the allegation of the plaintiffs that the property was joint family property. In view of that state of the pleadings, in our opinion, it was unnecessary for the plaintiffs to prove at the trial that the property was joint family property. That allegation must be deemed to have been admitted and on that admission the Court was entitled to proceed on the basis that the property it was considering was joint family property.

(3.) ON the merits of the allegation very little can be said. The mortgage deed recites that the sum of Rs. 7000 was borrowed by defendant 6, on the mortgage of the property because he had taken over the havala of Rs. 7000 due from the shop of one Dhondu to the mortgagee. Dhondu has given evidence in the case and he has pointed out that defendant 6 did not receive any benefit whatsoever either to himself or to the family by taking over this havala. He says that the shop could not pay the sum of Rs. 7000 to the mortgagee, and thereupon defendant 6, like a good Samaritan stepped in and took over the havala and passed a mortgage in favour of the mortgagee. This alienation, therefore, cannot be justified either by legal necessity or benefit to the joint family property.