CHOTKANU LAL Vs. GANGA SINGH

JUDGEMENT

(1.) The plaintiff's suit for sale against a Hindu mortgagor and his descendants, was dismissed on the ground that the money was not borrowed for legal necessity. In the hypothecation bond the recital was that money was wanted to pay a pre- emption decree and to defray other necessary expenses. It is in evidence that on the same date, the 16 July 1910, Rs. 2,000 out of the consideration of Rs. 3,000, was paid into Court which passed the pre-emption decree and the pre- empted property was acquired by the mortgagor Ganga Singh. As regards the balance of the consideration we agree with the lower Court that there is no satisfactory evidence to prove legal necessity thereof. The learned Counsel for the plaintiff urged that money was wanted for the payment of revenue and to redeem family ornaments. The evidence, however, has not been believed by the lower Court and we are not prepared to disagree when we ourselves have not had an opportunity of seeing the witnesses.

(2.) The pre-empted property along with his own equal share in the same village was mortgaged with possession by Ganga Singh to one Meherban Singh for Rs. 12,500 in 1911. Subsequently Ganga Singh's sons sued Meherban Singh to have the deed cancelled and in the plaint of that suit the plaintiff of that suit, Hardeo Singh major and his minor brother and sons, claimed this pre-empted property as joint ancestral property. It is clear that Hardeo Singh thereby recognized the necessity for the pre-emption of the property for which purpose Ganga Singh borrowed the sum of Rs. 2,000 from the plaintiff of this suit. It will also be noticed that the property which Ganga Singh purchased for Rs. 2,000 was mortgaged with possession for more than three times that amount, i.e., Rs. 6,250.

(3.) The learned Judge of the lower Court held that money required for the payment of pre-emption decree could not be said to have been borrowed for legal necessity of the family. He relied on the Bench ruling in the case of Shankar Sahi V/s. Baichu Ram . The head-note says: Ordinarily a Hindu father cannot encumber joint ancestral property to acquire the necessary fund to pre-empt other property.