DURGA PRASAD SINGH Vs. LACHMI NARAIN

JUDGEMENT

(1.) This is a defendant's appeal and arises out of a suit for sale on a mortgage dated 2 July, of 1926, executed by Mata Prasad Singh, the father of Durga Prasad Singh, appellant, in favour of the plaintiff, respondent for a sum of Rs. 750. The mortgage money was made up of the following items : (I) Rs. 234-7-3 left with the mortgagee for payment of a debt due on the basis of a mortgage-deed dated 23 September 1921, executed by the father and uncle of Mata Prasad, (2) Rs. 99-9-0 left with the mortgagee for payment of another debt due from Mata Prasad, (3) Rs. 113-15-9 left with the mortgagee for payment to one Ram Narain to whom the amount was due on account of arrears of rent and certain other debts advanced by him to Mata Prasad, (4) Rs. 35 for the cost of the stamp and expenses of registration of the mortgage.deed in suit and for household expenses, (5) Rs. 275 paid in cash at the time of registration for payment of a debt due to Shiva Babu Singh from Mata Prasad.

(2.) The second item mentioned above, viz. Rs. 99-9-0, was admittedly not paid by the plaintiff-respondent and the claim was for the balance of the principal amount, viz., Rs. 658-7-0, and interest. The property mortgaged was the joint family property of Mata Prasad and Durga Prasad appellant. Both Mata Prasad and Durga Prasad were arrayed as defendants to the suit. The plaintiff-respondent alleged thafe Mata Prasad executed the mortgage-deed for family necessity. Mata Prasad did not contest the suit and an ex parte simple money decree for the whole amount claimed was passed against him by the trial Court. Durga Prasad, appellant, contested the suit. He denied the execution of the mortgage bond and put the plaintiff-respondent to proof of the alleged necessity for the loan secured by the mortgage. The trial Court held that legal necessity was established with respect to items 1 and 3 mentioned above. It also held that out of item 4, viz., Rs. 35, a sum of Rs. 20 was required for the cost of the stamp and registration expenses of the bond in suit. As regards the balance of Rs. 15, it was of the opinion that legal necessity for the same was not established. It further held that legal necessity for the sum of Rs. 275 paid to the mortgagor at the time of registration of the deed in suit for payment of Shiva Babu Singh was not proved. In short the trial Court held that legal necessity was proved with respect to a sum of rupees 368-7-0 only and passed a decree for sale of the mortgaged property with respect to that amount with interest.

(3.) Durga Prasad filed an appeal in the lower appellate Court and arrayed both the plaintiff-respondent and Mata Prasad as respondents to the appeal. The plaintiff-respondent filed a cross-objection urging that the whole of the mortgage money was borrowed by Mata Prasad for legal necessity, and that his claim for sale of the mortgage property ought to have been decreed with respect to the entire amount claimed. Mata Prasad died during the pendency of the appeal in the lower appellate Court. The learned Judge of tho lower appellate Court held that the entire amount secured by the mortgage-deed in suit was borrowed by Mata Prasad for legal necessity, and, accordingly, dismissed the appeal filed by Durga Prasad and allowed the cross-objection filed by the plaintiff-respondent, with the re-suit that a decree for sale with respect to the entire amount claimed by the plaintiff- respondent was passed in his favour. Durga Prasad has come up in second appeal to this Court. The Learned Counsel for Durga Prasad has taken exception to the finding of the lower appellate Court as regards items 1 and 5 of the mortgage-debt and has contended that legal necessity for the same was not proved. He also has assailed the finding of the lower appellate Court as regards the sum of Rs. 15 out of item 4 that, according to the recital in the mortgage-deed, was borrowed by Mata Prasad for household expenses.