JHAMMANLAL Vs. KOMAL SINGH

JUDGEMENT

(1.) THE facts of this case are very simple. One Tikam Singh executed a mortgage deed for the sum of Rs. 1,500 in favour of two persons, Jwala Prasad and Girdbari Lal. According to the deed Jwala Prasad advanoed Rs. 1,000 and, Girdhari Lal advanced Rs. 500. It was alleged that the Rs. 500 due to Girdhari Lal was a previous debt incurred by the mortgagor. THE representatives of the mortgagees brought a suit impleading Tikam Singh and his three sons and grandsons. One son and "his" sobs pleaded that they were separate from the father and had no concern with him. THE Court held in their favour and dismissed the suit as against them. THE other sons pleaded that there was no consideration whatsoever for the bond at all. Secondly, that if there was any consideration there was no legal necessity and, therefore, the mortgage was not binding upon thorn. In respect to the Rs. 1,000 advanced by Jwala Prasad the Court held that that was for legal necessity and the mortgage to that extent was binding upon the sons in the joint family property. In regard to the Rs. 500 it held on the issue raised by the sons that the plaintiffs had failed to establish this portion of the consideration.In fact it says clearly that the plaintiffs had produced no proof whatsoever of any previous debt at all. THE issue was thus decided in favour of the sons in respect of the sum of Rs. 500, but curiously enough the Court went out to give a simple money decree for Rs. 500 against Tikam Singh, not because it was proved but because of the acknowledgment in the deed and because Tikam Singh did not come forward to deny it. It is almost impossible to believe that any Court could have come to so curious a decision. To hold that the debt did not exist and yet to give a decree against Tikam Singh is almost beyond comprehension. However, there it is. Tikam Singh has died. THE decree-bolder has now come forward and seeks to execute his decree for Rs. 500, which be held against Tikam Singh, by the sale of the joint family property. THE sons have come forward and urge among other points that there is a final and binding decision between them and the decree-holders, that this alleged loan of Rs. 500 is purely fictitious and had never been advanced, and that whatever decree may have been passed against Tikam Singh, the decree holders are unable to go behind the decision which was arrived at between them and the sons. It is in this view that the Court below has refused to allow the decree-holders to attach the joint family property in the hands of the sons and to put it to sale. We think that in the circumstances this is the only thing that the Court below could possibly have done. THE difficulty only arises because of the stupidity of the first Court in passing a decree against Tikam Singh for a sum which it held was not due from him. THE sons were necessary parties to the suit and it was open to them to plead that there was no consideration for the bond. THEy did so plead and the Court held in respect to the Rs. 500 that there was no consideration for the bond. In these circumstances we do not think that either they or the joint family property are liable for the sum of Rs. 500 for which the decree-holders obtained their decree. We, therefore, dismiss this appeal with costs including fees on the higher scale.