KANHAIYA LAL Vs. NIRANJAN LAL

JUDGEMENT

(1.) The decision of the Court below in this case cannot be sustained. The plaintiff seeks to recover the money due on a mortgagee effected by Gobind Ram, the father of the defendants Nos. 1 and 2 and the grandfather of the defendants Nos. 3 and 4, in favour of Dwarka Das on the 31 May, 1909. The Plaintiff is the son of Dwarka Das. The mortgage was effected for the sum of Rs. 7,000, the whole of which was left with the mortgagee for the satisfaction of a prior mortgage of the 10 February, 1902 held by the defendant Zamir-ul-Hasan Khan.

(2.) The defendant Nos. 1 to 4 met the claim with the plea that the document in question, if executed by Gobind Ram, was executed without consideration, and that there was no legal necessity to justify the mortgage. The defendant, Abdul Hamid Khan, is said to have purchased a portion of the mortgaged property at auction in execution of a decree on a prior mortgage, to which Gobind Ram was a party. Abdul Hamid Khan sold his rights to Zamir-ul-Hasan Khan on the 2nd April, 1921. The defence of Abdul Hamid Khan was that he had no interest subsisting in any portion of the mortgaged property; and that of Zamir-ul-Husan Khan was that his vendor had purchased the right of Gobind Ram in satisfaction of a decree on a prior charge and the property purchased by him was not therefore liable for the plaintiff's claim.

(3.) The Court below dismissed the claim, following the decision in Sahu Ram Chandar V/s. Bhoop Singh A.I.R. 1917 P.C. 61. The view taken by it was that the prior mortgage debt, for the satisfaction of which the mortgage in suit was executed, did not amount to an antecedent debt, inasmuch as no legal necessity was shown to justify a mortgage of the ancestral property by Govind Ram at the time. It was asserted on behalf of the defendants Nos. 1 to 4 that Gobind Ram was a man of immoral character and extravagant habits; but no finding was recorded by the Court below on that point.