SHANKAR SAHI Vs. BUICHU RAM

JUDGEMENT

(1.) THE point raised in this case is a very simple one and under the strict rule of Hindu Law the decision would have been in favour of the appellants. It appears that the plaintiff-respondent sued for foreclosure of a mortgage which had been executed for payment of a pre-emption decree. THE sons of one of the mortgagors were also impleaded and their defence was that the mortgage-bond was not for consideration and at any rate was not for legal necessity. THE Munsif held that consideration had pissed but that the pre-emption decree was not satisfied by the mortgage-money and, therefore, he passed a decree against the pre-empted property exempting from liability the ancestral property charged in the mortgage. THE plaintiff's appealed and, the defendants put in cross-objections. THE lower appellate Court came to the conclusion that the mortgage went to satisfy the pre- emption "decree and that the loan was for the benefit of the estate and decreed the claim against the whole property mortgaged. THE defendants come here in second appeal. As I have already stated above, there is no rule of Hindu Law which warrants the manager of a joint Hindu, family to. alienate property for what is called the benefit of the estate. THE only warrant for valid transfer by a member of a joint Hindu family is to avert distress of the family. However, as I have said above, the doctrine of the benefit of the family has also been introduced in the Hindu Law, and having c regard to the case of Nathu V/s. Kundan Lal 8 Ind. Cas. 836 : 33 A. 242 : 7 A.L.J. 1182 which is a decision of a Division Bench by which I am bound, I must hold that the mortgage in the present, case was executed for the benefit of the family and was as such binding on the family. In this view the decree of the lower Appellate Court was a correct decree. I confirm it and dismiss the appeal with costs including in this Court fees on the higher scale. I extend the time for payment to six months from this date. THE decree of this Court will only be drawn up in. case the respondents make good the deficiency in Court-fees for the Court below. For this purpose I allow the learned Vakil for the respondents one month's time.