RANJIT SINGH Vs. GANGA SAHAI

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by Ganga Sahai, plaintiff-respondent No. 1, on foot of a mortgage, dated the 2 November, 19i5, for the recovery of Rs. 6,153-9-0, the mortgage-money due, by sale of the hypothecated property. The mortgage in suit was admittedly given by Ramman Singh, The claim was brought against Ramman Singh and his son Ranjit Singh, and his subsequent transferee Lala Makut Lal. The principal contesting defendant in the case was the son of the executant of the deed, namely, Ranjit Singh. He pleaded that his father was of an immoral character and reckless and extravagant in his expenditure and had given the bond in suit for a consideration which was not binding on the family nor effective and operative against the family property. For the plaintiff mortgages the rejoinder was that the whole consideration of the deed in suit was advanced for legal necessity. Both parties gave evidence. The learned Subordinate Judge held that the mortgage in suit was given for legal necessity and decreed the claim by sale of the hypothecated property. The decree was not for the full amount claimed as the learned Subordinate Judge has reduced the rate of interest. The son of the executant of the deed has preferred this appeal before us and his learned Counsel contends that the finding of the Court below is quite incorrect with regard to the nature and character of the loan secured by the mortgage in suit. In order to dispose of the contention for the appellant it is necessary to refer to the terms of the deed of the 2 November, 1915 and to the evidence in the case. The consideration of the deed in suit was Rs. 3,800. The sum of Rs. 2,875 was left with the mortgagee for payment of prior mortgages and Rs. 925 were paid in cash to the mortgagor at the time of registration. With regard to the latter sum the allegation on behalf of the mortgagee is that it was advanced for the purchase of oxen and for construction of a house. The prior mortgages that had to be paid off were dated the 11 February 1915 and 16 January 1915, for Rs. 200, and Rs. 2,300 respectively. The learned Counsel for the appellant contends that the prior mortgages of the 16 January 1915 and 11 February 1915 do not fall under the definition of antecedent debt as given by their Lordships of the Privy Council in the case of Sahu Ram Chandra V/s. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom.L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 44 I.A. 126 : 22 M.L.T. 22 : 6 L.W. 213. On behalf of the respondent mortgagee the reply is that the principle enunciated in the case of Ram Chandra does not apply to the present case, inasmuch as he has shown by evidence on the record that the mortgages of 16 January 1915 and the 11 February 1915 had been given for loans that were themselves taken for legal necessity and were binding on the family. It is on this ground that the learned Counsel for the plaintiff mortgagee seeks to distinguish the case of Ram Chandra from the present case. We think that be has a right to do so and, therefore, we must consider the evidence on his behalf as to whether the prior mortgages of the 16 January 1915 and the 11 February 1915 were contracted- for loans that were taken for legal necessity. The mortgage of the 11 February 1915 was for Rs. 200. The recital in that mortgage is that the money is taken for the payment of irrigation charges and for private expanses. The mortgage of the 16 January 1915 was for Rs. 2,800. Oat of this sum Rs. 1,303-4 0 were allowed on a debt due on another mortgage of an earlier date, namely, that of 2nd July 1913, and Rs. 950 were paid in sash at the time of registration and Rs. 36-12 0 were paid prior to the registration for the expanses of the execution of the bound. The bond of the 2 July, 1913 was for Rs. 1,000 The recital for the necessity of the loan in the said bond was that the money was taken for the payment, of irrigation charges, the revenue and mooting of necessary expenses. We have, therefore, to see whether the recitals in the three bonds just mentioned, to the effect that the money was borrowed for the payment of revenue, irrigation charges and necessary household expanses at different times, i..e, between 1913 and 1915, are made out by the evidence on behalf of the plaintiff-mortgages. Three witnesses have been examined on his behalf, namely, Rahim-ullah, Sigar Mal and Balwant Singh. Sagar Mal and Balwant Singh do not say how they came to know that the money was taken by Ramman Singh on different dates for either the payment of revenue or the payment of irrigation charges or for necessary expanses of the house. The same remark applies to Rahimullah the Patwari, In fact on closer examination of the evidence of these three witnesses the inference seems to be inevitable that their knowledge as to the objects of different loans on different dates is based either upon the statements of Ramman Singh made at the time of obtaining the loans or on the recitals in the different bonds. The evidence of the witnesses for the plaintiff-mortgage does not, in our opinion, prove that the loans taken on the 2 July, 1913, the 16 January 1915, and the 11 February 1915, were taken for what is called in the Hindu Law " legal necessity. " The sum of Rs. 2,874, therefore, out of the consideration of the bond in suit does not stand proved to have been taken for legal necessity. The antecedent debts for which it was taken have not been, proved to have been such as would bind the family or the family property. The balance of Rs. 925 which was paid in cash at the time of registration to Ramman Singh is said to have been taken for the purchase of oxen and the building of a house. There is some evidence of a very vague nature to show that Ramman Singh had been building a home for some years. The contention on behalf of his son is that Ramman Singh had been extravagant and has bean building a house beyond his means and in such a case any sum borrowed by him for the construction of a house cannot be taken to be for the benefit of the family. In any case we find no reliable evidences on the regard to make us hold that the sum of Rs. 925 was taken either for the purchase of oxen or for the construction of a house. Under these circumstances it is quite clear that the son is not bound by the mortgage debt in suit nor is the family property bound. The plaintiff mortgage has, however, his personal remedy against the mortgagor for the amount due on the mortgage of the 2 November, 1916. We would also remark here that the defendant appellant, the son of the mortgagor, has failed to prove that Ramman Singh, his father, is a man of immoral character or that any of the loans taken by him is tainted with immorality.

(2.) WE, therefore, allow the appeal and modify the degree of the Court below by desresing the claim of the plaintiff-mortgagee, i. e., Ganga Sahai for the sum of Rs. 6,153-9.0 against Ramman Singh personally. The claim of Ganga Sahai to bind the family property is disallowed and the decree of the lower Court against the family property is set aside. As to costs Ganga Sahai is allowed full costs throughout including fees in this Court on the higher stale against Ramman Singh. Costs are allowed to Ranjit Singh alto both for this Court and the Court below against Rammau Singh. The decree will carry interest at the rate of 6 per sent, per annum.