KUNDAN LAL Vs. DALIP SINGH; BAKHTAWAR SINGH

JUDGEMENT

(1.) This appeal arises out of a suit brought on foot of a mortgage, dated the 9th of February, 1891. The mortgage was admittedly made by the father of a joint Hindu family. The consideration for the mortgage was a sum of Rs. 5,000 alleged to be due on account at the date of the mortgage, a sum of Rs. 6,500 representing interest calculated in advance, and Rs. 22,000 cash advanced to enable the mortgagor to purchase certain immovable property. The principal amount was made repayable by instalments extending over sixteen years. The court below has given a decree for Rs. 27,926-1-0.

(2.) The question which has been urged before us in the present appeal is that the sum of Rs. 5,000, assuming it ever to have been a debt at all, was at the time of the execution of the mortgage time barred, and that, therefore, it was not permissible for the mortgagor, as the father and manager of the joint Hindu family, to revive a time-barred debt and to create a mortgage for such time- barred debt on the family property. A ground was no doubt taken in the memorandum of appeal that on the evidence the court should not have held that there was any debt at all. In our opinion we ought to have no hesitation in accepting the finding of the court below that the debt was an honest debt, but that it was time-barred at the time of the execution of the mortgage.

(3.) The case resolves itself then into a question of law, namely, whether or not the father of a joint Hindu family can legally revive a time-barred debt and bind the family property to secure its repayment. Having regard to the decision of the majority of the Full Bench in the case of Chandra Deo Singh v. Mata Prasad (1909) I.L.R. 31 All, 176 it seems to us that we must find the existence of family necessity before we can hold the family property bound. It is very difficult to say that there would ever be any necessity for the father or manager of the family to revive a time-barred debt. Prima, facie and looked at from a wordly point of view it is very much against the interest of the family to revive such a debt. The very question was decided by a Bench of this Court in the case of Indar Singh v. Sarju Singh (1911) 8 A.L.J., 1099. It has been contended before us that we ought to hold, under the circumstances of the present case, that it was in the interest of the family that the time-barred debt should be revived. It is urged that the money was advanced upon very easy terms, and that, therefore, we should hold that the money could not have been obtained except on the condition of reviving the debt. In our opinion there is no sufficient evidence on the record to show that it was for the benefit of the family that the time-barred debt of Rs. 5,000 should be revived.