FAQIR CHAND Vs. SARDARNI HARNAM KAUR

JUDGEMENT

(1.) THE facts from which this reference has arisen are as follows.

(2.) MURARI Lal, who formed a Joint Hindu Family along with his son Faqir Chand, mortgaged certain property on the 7th of June 1949 with Shrimati Harnam Kaur for Rs. 75,000/-, the mortgage deed containing a clause to the effect that if the mortgagee had to bring a suit for the recovery of the money and the entire claim was not satisfied from the mortgaged property, the mortgagee could recover the balance from his person and all other property belonging to him and the joint family. The suit was instituted by the mortgagee in which, on the 20th o April 1953, a preliminary decree for Rs. 95,000/- was passed.

(3.) ABOUT a month before the decree was passed Faqir Chand the son of the mortgagor, instituted a declaratory suit challenging the mortgage by his father on the grounds that the mortgaged property was joint family property and that the mortgage was without legal necessity, and that in fact the debt was incurred for illegal and immoral purposes. The passing of the decree materially changed the situation and consequently, in June 1954, an amended plaint was filed in which, in addition to a declaration that the mortgage was bad, a declaration was also sought that the decree obtained by the mortgagee was not binding on the plaintiff, and as a consequential relief an injunction was sought restraining the mortgagee from proceeding with the sale of the mortgaged property in execution o the decree.