TOLARAM Vs. BEENJRAJ

JUDGEMENT

(1.) THIS is a first appeal by the plaintiffs against the judgment and decree of the District Judge, Bikaner, dated 23-4-1952.

(2.) THE plaintiffs-appellants Tolaram and Kashiram are sons of the defendant-respondent No. 3 Kaluram. It is common ground between the parties that on 23-5-1932, the appellants' father executed a mortgage-deed in favour of the defendants-respondents Nos. 1 and 2 Beenjraj and Nemchand for Rs. 10,000/- in respect of a house which is situated in Dungargarh and which is the subject of dispute in the present case. Respondents Nos. 1 and 2 later on filed a suit against respondent No. 3 on the basis of the said mortgage-deed and obtained a final decree for the sale of that property on 5-11-1948. In execution of that decree, a proclamation for sale was made by the executing Court and 16th to 18th June 1950 were fixed for the auction of that property. After this proclamation was issued, the appellants brought the present suit on 13-5-1950 for a declaration that the said decree was void and inoperative against them and the mortgaged property was not liable to be sold in execution thereof. It was averred by the plaintiffs that the house in dispute was their ancestral property since its patta was in the name of the appellants' grandfather and, therefore, their father defendant No, 3 had no right to mortgage the same in the absence of any legal necessity. It was further averred that there was no antecedent debt of the family to be paid off, that no benefit had accrued to the family from the money which was borrowed by defendant No. 3. It was also pleaded on the other hand that the money was borrowed by defendant. No. 3 for immoral and illegal purposes and, therefore, it was not binding on them. 2a. THE suit was resisted by defendants Nos. 1 and 2 on several grounds which led the trial court to frame the following five issues: 1. Is the Haveli in question the joint ancestral property of the plaintiffs and defendant No. 3? P. 2. Did defendant No. 3 mortgage this Haveli with the defendants Nos. 1 and 2 for immoral and illegal purposes? P. 3. Was the decree dated 5-11-1948 obtained by defendants Nos. 1 and 2 against defendant No. 3 by collusion with defendant No. 3 and so it is void and ineffective as against the plaintiffs and so the property was not liable to sale? P. 4. Is the suit not within time? D. 5. Are the plaintiffs estopped from bringing the present suit? D.

(3.) IT is true that these observations were made in case of legal necessity but there seems no reason why the same principle should not be applied in case of antecedent debts. If the mortgagee makes a proper inquiry about the existence of the antecedent debts and if after such inquiry, he advances the mortgage-money to the father for the purpose of discharging his antecedent debts, then there seems to be no reason why such a mortgage should not be binding on the sons. If the mortgagee is not required to see to the actual application of the money in the case of legal necessity, there is no reason why he should be required to do so in the case of money advanced for payment of antecedent-debts subject to what imme-diately follows. In such cases it would be necessary that if the antecedent debts are not paid off by the mortgagee himself on behalf of the mortgagor or are not particularised in the mortgage-deed, then the mortgagee must relate the money advanced by him to particular antecedent-debts. In other words, he must prove that the mortgagor had particular antecedent debts to be paid off and that the money was borrowed by the mortgagor to discharge those debts so that the sons may be able to prove whether the antecedent debts were illegal or immoral. In the present case, we are satisfied that respondents Nos. I and 2 have been able to show that there were particular antecedent debts in existence at the time of the mortgage and that those antecedent debts were cleared off after the mortgage money was advanced to respondent No. 3. The appellants were in no doubt about the existence and particulars of those debts after the respondents Nos. 1 and 2 had finished their evidence. They have not been able to prove that those debts were incurred for illegal or immoral purposes. Under the circumstances, we cannot hold the mort-gage to be invalid.