BAJRANGI MISIR Vs. PADARATH SINGH

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit brought by the plaintiffs- respondents for enforcement of a hypothecation bond dated 24 November 1914 executed by Udit Misra, defendant 1, and Lachhman Misra, defendant 2. Defendant 3 is the son of Udit Misra and defendant 4 is the son of Lachhmnan Misra. They were both infants when the mortgage deed was executed. The sum advanced under the deed in suit is Rs. 300. The rate of interest agreed on is 1 per cent per month. The mortgage money is payable in two years time. It is agreed that if interest is not paid at the end of a year it shall be added to the principal, and interest at the contractual rate is to run on the aggregate amount of principal and interest. No payment was made and the sum claimed by the plaintiffs- respondents came to Rs. 1,180-9-0 at the date of the suit, namely, the 30 June 1926.

(2.) The only defences to which it is necessary to refer are: (1) that there was no legal necessity for the loan contracted by defendants 1 and 2; and (2) that, at any rate, the high rate of interest which the executants agreed to pay was not justified by any family necessity.

(3.) Both the lower Courts have found that a aura of Rs. 230 out of the consideration of Rs. 300 represented an antecedent debt payable by defendants 1 and 2. The question of legal necessity can thus be raised only with regard to the sum of Rs. 70. Both the Courts are again agreed that this sum was borrowed by defendants 1 and 2 for expanses of the Gauna ceremony of the daughter of one of the executants. It should be mentioned that the first two defendants are brothers and members of a joint Hindu family between themselves together with their sons, defendants 3 and 4. The Court of first instance held that the expenditure of money on the Gauna ceremony of a daughter is not warranted by legal necessity. The lower appellate Court has taken a different view and held that a loan for meeting the expenses of Gauna ceremony is justified and should be considered to be for legal necessity and binding on other members of the joint Hindu family. As regards the rate of interest, the two lower Courts have likewise differed, the Court of first instance holding that the stipulation as to compound interest has not been shown to be justified; the lower appellate Court, on the other hand, is of opinion that the rate of interest stipulated for in the bond in suit is reasonable and should be considered to be justified by the necessities of the case.