GAJRAM SINGH Vs. LALA KALYAN MAL

JUDGEMENT

(1.) The question referred to this Pull Bench for decision consists of two parts : (a) Where there has been a payment by a debtor to a creditor and no appropriation has been proved either by the debtor QJC the creditor, is it open to the creditor to appropriate the amount or any part of it towards the payment of any debt and at any time even during the pendency of the litigation concerning the payment? (b) Whether it is open to a mortgagee of a joint family property, under a mortgage deed executed by the manager of the joint family when a portion of the mortgage debt was not raised for legal necessity, to appropriate during the pendency of the suit payments made by the mortgagor towards the discharge of such portion of the debt as was not raised for legal necessity, when no appropriation was made either by the mortgagor or the mortgagee till the date of the suit?

(2.) In this case a mortgage deed had been executed by two brothers, Jagdish Singh and Pitam Singh, in favour of Radha Kishan, on 19 December 1926, for Rs. 15,000 repayable in three years. On 18 April 1921 a sum of Rs. 12,469-12-9 was paid to the mortgagee and an endorsement made on the back of the document under the signature of Jagadish Singh, one of the mortgagors. The details were as follows : On account of interest and compound interest on the entire amount of principal up to 19 April 1921...Rs. 7,469-12-0. On account of principal,...Rs. 5,000.

(3.) At the time of the payment, there was no specification that the amount or any part of it was being paid or received towards that portion of the mortgage debt which may be for or without legal necessity. The present suit was instituted on 21 June 1930 by the receiver of Radha Kishan's estate. In the plaint also the plaintiff did not suggest that the amount had been appropriated towards that part of the mortgage debt which might have been without legal necessity. Indeed, his case was that the whole of the mortgage debt had been taken for legal necessity and was therefore binding on the entire joint family of the mortgagors. The contesting defendants took up the position that no part of the mortgage debt had been borrowed for any lawful or family necessity. The trial Court held that the entire amount had been borrowed for legal necessity. But on appeal the learned Judges held that out of the principal amount the sum of Rupees 8,500 was for legal necessity, but not Rs. 6,370; on this opinion having been expressed, the learned Counsel for the plaintiff respondent requested that his client should be allowed to appropriate the whole of the amount previously paid towards that part of the debt which had not been proved to have been for legal necessity.