LACHMAN LAL Vs. MUNSHI MAHTON

JUDGEMENT

(1.) This is an appeal from the decision of the learned District Judge of Patna in which he reversed the decision of the learned Munsif in an action in which the plaintiff claimed a declaration that defendant 9 had no right to mortgage the property, the subject-matter of the action. The relief which the plaintiff claimed was for a permanent injunction prohibiting and restraining the principal defendants from taking out execution of a decree in a mortgage suit to which I shall presently refer. As I have said, the learned District Judge set aside the judgment of the learned Munsif and dismissed the plaintiff's action.

(2.) The facts are these: The plaintiff and defendant 9 were members of a joint family. It appears that the plaintiff was in prison and during his incarceration defendant 9 executed a mortgage of a certain property which it appears he alleged was his own. Ultimately an action was brought by the principal defendants against defendant 9 and a mortgage decree was obtained. Out of those facts arose this action in which the plaintiff claimed the relief which I have already stated. The learned District Judge has dismissed the plaintiff's suit substantially on the ground that there was legal necessity for the mortgage which defendant 9 executed in the circumstances which I have narrated in the earlier part of my judgment.

(3.) In the argument which has just concluded and to which I have listened) with great interest, Mr. Manuk raises two or three other questions besides the one to which I have referred. They principally relate to the question of estoppel. It is said that defendants 1 to 8 in this case are now estopped from raising the question of necessity by reason of certain facts to which I must now refer. Before doing so I propose to state shortly the arguments of Mr. Manuk. He first of all contends that the defendants cannot approbate and reprobate.