AMBIKAPRASAD Vs. R. B. GOVRISHANHAR

JUDGEMENT

(1.) 1. The plaintiffs-respondents sued on a mortgage deed executed by defendant 1 Dhire. The property affected was the joint property of Dhire and his brothers. The trial Judge held that Dhire executed the mortgage bond in suit in his personal capacity and that the loan was not required for purposes binding on the joint family. A decree was therefore passed in respect of Dhiro's share in the property. The lower appellate Court held that Dhire had executed the mortgage bond in suit for family necessity as a manager of the joint family.

(2.) IN second appeal it is urged that the finding with regard to family necessity is based on evidence which should not have been admitted. The learned Judge of first appeal begins by relying on the contents of a document executed by the brothers of Dhire after they had parted with all right to the property. It is clear that such a document has no value against the purchasers of the mortgaged property. He next relies on evidence of statements made by Dhire at the time the bond was executed. Dhire is alive and these statements are not admissible in evidence for proof of legal necessity they might be relevant as proof of inquiry by the mortgagees, but there is no finding that inquiry was made. It seems clear then that the finding has been reached in consequence of improper admission of evidence and is not binding upon me. I have therefore to consider whether legal necessity has been proved. Dhire, as the learned Additional District Judge has stated, did not purport to execute the bond as a manager and there is a recital to the effect that he alone owned the mortgaged property, The plaintiffs stated that the money was borrowed to repay a loan taken to meet family expenses or the expenses of cultivation. When in evidence it is suggested that this loan was taken in order to provide for the marriage of Dhire's daughter, very cogent proof was necessary. Such proof does not exist. The plaintiffs' failure to examine Dhire has not been explained. There is then no proof that Dhire incurred the debt on which the suit is based for legal necessity. Even if the evidence that his brothers were present when Dhire executed the mortgage deed is accepted, that is not sufficient. The decree of the lower appellate Court is then set aside and the decree of the trial Judge is restored. Costs in the first Court will be borne as incurred. Costs in the first and second appeals will be borne by the plaintiffs.