PURUSHOTTAM DAMODAR RAICHURKAR Vs. GANGADHAR KASHINATH SAKHARE

JUDGEMENT

(1.) THIS is an appeal against a judgment of the First Class Subordinate Judge of Sholapur. The plaintiffs are suing to enforce a mortgage passed on September 10, 1924, by the adoptive mother of defendant No.1. Defendant No.1 contends that the mortgage is not for legal necessity and therefore is not binding upon his interest in the mortgaged property. The learned Judge held that in respect of Rs. 3,200, out of the total sum of Rs. 4,000 advanced, the mortgage was for necessity, but he held that the remaining Rs. 800 was not for necessity, and he passed an order on defendant No.1 to pay out of the mortgaged property the sum of Rs. 6,400 which was based on the view that the total principal sum secured was Rs. 3,200.

(2.) ON the facts, I think, there is no reason for challenging the learned Judge's finding. Rs. 3,000 was required by the adoptive mother of defendant No.1 to pay off subsisting mortgages on the property, and the learned Judge held that a further Rs. 200 was also required for purposes of necessity. The balance, according to the allegation of the mortgagee, was required to pay off miscellaneous debts, and for the maintenance of the minor mortgagor. Admittedly, there was no evidence whatever that the adoptive mother had incurred any debt. The mortgagee merely took her word for it without any inquiry. I think, therefore, the learned Judge was right in holding that the mortgagee had not established that more than Rs. 3,200 was borrowed for legal necessity.

(3.) THIS question was also considered by a Bench of the Patna High Court in Divarka Ram v. Bakshi Parnaw Prasad Singh (1935) I. L. R. 14 Pat. 595. In that case the Bench came to the conclusion that it was always open, in a suit to enforce a mortgage, for the defendant to contend that a part of the mortgage debt was not binding upon him or upon his share of the mortgaged property on the ground that it was not borrowed for legal necessity. I think that is the correct view. I have dealt with this point, which seems to me to be free from difficulty, rather more fully than I should normally have thought necessary, because I have had several cases recently in which the point has been raised.