BOHRA JETH MAL Vs. DHARAM SINGH

JUDGEMENT

(1.) THIS appeal arises out of a suit for sale upon a mortgage of the 22nd of August 188 3, executed by two brothers, Hukam Singh and Het Singh. The property comprised in the mortgage consisted of shares in four villages, one of which was Nagla Behari, which was ancestral property. The mortgagors are dead and the defendants are their legal representatives. It was urged on their behalf that the mortgage was not made for family necessity and that, therefore, the share in Nagla Behari which is ancestral property is not liable under the mortgage. The lower Court has accepted this defence and has exempted the village from the operation of the mortgage. Hence the present appeal by the plaintiffs. The only question which we have to determine in it is whether there was justifying necessity for the mortgage in question. It appears from the mortgage-deed that Het Singh and Hukam Singh purchased certain property from two brothers, Rup Singh and Baldeo, for Rs. 3,600 that they paid a part of the consideration and for payment of the balance they borrowed the amount secured by the mortgage in suit. Hukam Sigh and Het Singh were admittedly the managing members of The joint family of which they and their sons were members. The property purchased, namely, a share in mouza Gambir patti Bisani, was purchased by two brothers a day before the mortgage in question, and the sale of that village was made to pay off a prior debt due by the vendor. The property purchased, namely, the share in mauza Gambir patti Bisani, is admittedly in the possession of the joint family. The earlier mortgage which was in favour of Joti Parshad Bohra was never enforced and the plaintiff swears that it was paid off. The finding of the Court below that the application of the money raised by the mortgage to the acquisition of the property purchased has not been proved is not justified by the evidence. It is clear that the mortgage was made for the benefit of the family and, as a matter of fact, the family have benefited by it and have enjoyed the property ever since the purchase. That being so, the mortgage of the share in Nagla Bahari which is ancestral property was for a family necessity and is binding on the family.

(2.) WE accordingly allow the appeal and, varying the decree of the Court below, order a sale of 1 3/4 biswas share in Nagla Behari as well as the other property comprised in the mortgage. In other respects, we affirm the decree of the Court below. The appellants will have their co3ts of this appeal including fees in this Court on the higher scale. WE extend the time for payment for a period of six months from this date.