SURENDRA SINGH Vs. CHAUDHRI GHULAM MOHAMMAD

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs in the suit from a decree dated October 7, 1936, of the High Court of Judicature at Lahore, which set aside a decree dated December 4, 1935, of the Court of the Senior Subordinate Judge, Sheikhupura.

(2.) THE plaintiffs, who are the sons of Sardar Balwant Singh, deceased, a Sikh Jat, brought their suit to obtain possession of ancestral lands which had been mortgaged by their father in their lifetime by way of usufructuary mortgage in favour of the respondent (defendant) Chaudhri Ghulam Mohammad. THEy alleged in their plaint that according to the customary law of the agriculturists of the Punjab, which admittedly governs the transaction, their father was not competent to mortgage the ancestral lands without legal necessity and that there was no such necessity for the mortgage in the present case. THEy accordingly prayed for a decree that the mortgage was ineffectual to bind their reversionary rights in the land and for possession.

(3.) THE legal necessity that is said to have existed in the present case was the existence of a number of debts owing by Balwant Singh, and it is plain that the payment of the debts of a mortgagor is a legal necessity, if such debts can be described as "just debts". THE question of what is a just debt for this purpose has been authoritatively answered by this Board in the case of Kirpal Singh v. Bakwmt Singh (1912) I. L> R. 40 Cal. 288 : S. C. 15 Bom. L. R. 79 P. C. . It was there held, approving the definition given by a full bench of the Chief Court of the Punjab in an earlier case, that a just debt means a debt which is actually due and is not immoral, illegal, or opposed to public policy, and has not been contracted as an act of reckless extravagance or of wanton waste, or with the intention of destroying the interests of the reversioners.