KISHAN CHAND Vs. RAKESH KUMAR

JUDGEMENT

(1.) THIS second appeal arises out of a suit by the minor sons of Balwant Rai to challenge four mortgages effected by him on the ground that the mortgages were without consideration and necessity and therefore not binding upon them. All the mortgages were in respect of one house and the transactions were as follows:

(2.) THE trial Court found that apart from the previous debt the fourth mortgage was without consideration. This matter is not now in dispute and no appeal against the decision of the trial Court was filed. With regard to the third mortgage the trial court held that since a decree had been obtained by the mortgage and the debt was not immoral, the mortgage was good and binding upon the sons. This matter is also no longer in dispute, nor was it challenged in the lower appellate Court. The dispute relates therefore to the first and second mortgages only. The trial Court found that the mortgages were for consideration and necessity and therefore binding upon the sons, it took, the view that the debt had been incurred for a joint family business. The lower appellate Court modified the order of the trial court and held that the first mortgage was good to the extent of Rs. 429/- only and the second mortgage was good to the extent of Rs. 275/ -. The lower appellate court found that the business was not an old business and since there was no evidence of when the business was commenced, it must be treated as a new business. The defendants have come up in appeal to this Court and it has been urged on their behalf by Mr, Nathu Lal Wadehra that these two mortgages are binding upon the sons. The sons have filed cross-objections in which it is contended that the mortgages should be held to be entirely without necessity.

(3.) THE decision of this matter rests on the interpretation of the dictum of their lordships of the Privy Council in Brij Narain Rai v. Mangla Pra-sad, AIR 1924 PC 50 (A ). Their Lordships were considering the principles of Hindu Law under which alienations effected by a member of a joint Hindu family may be challenged and a debt held to be a moral or immoral. Their Lordships laid down five propositions which they deduced from a number of authorities. The second proposition was in the following terms: