BANARSI DAS Vs. COLLECTOR OF SAHARANPUR

JUDGEMENT

(1.) This is a plaintiffs appeal and arises out of a suit brought by them against the defendants-respondents to recover Rs. 1,54,333-1-3 on account of the balance of principal and interest on the basis of a mortgage-deed dated 22 May, 1915. The mortgage-deed was executed by Messrs. Beni Prasad, Raghunath Das and Raja Joti Prasad, who were own brothers. They had purchased the Roorkee Canal Foundry and Engineering Workshop from the Government for Rs. 3,00,000. Out of it they paid to the Government Rs. 1,80,000. The balance was to he paid by three annual instalments without interest. This balance was secured by a mortgage-deed dated 13 day of January 1916 in favour of the Secretary of State. The execution of the sale-deed by the Secretary of State was deferred till the payment of the balance in order to carry on the business; and also to pay the remaining price of the workshop purchased, the mortgagors executed the mortgage in suit in favour of the plaintiffs for a sum of Rs. 2,00,000 out of which Rs. 1,50,000 were paid to the executants before the Sub-Registrar at the time of the registration of the deed. The balance was never taken by the mortgagors. Raghunath Das had died before the suit. Raja Joti Prasad died during the pendency of the suit and Beni Prasad died during the pendency of this appeal. Brij Raj Saran, son of Beni Prasad, Raghubir Saran, Brij Bhushan Saran and Sumer Singh, sons of Raghunath Das, and Madhuri Saran, son of Raghubir Saran, and Rameshwar Saran, Janardhan Sararn and Radhay Shyam, sons of Raja Joti Prasad, were also impleaded as defendants as members of the joint family. The following pedigree will show the relationship of the mortgagors with the defendants aforesaid:

(2.) The plaintiffs case was that the mortgage was made for valid family necessity and was binding on the defendants who were members of the joint family and on the joint family property.

(3.) After the institution of the suit the Courts of Wards of the United Provinces and Punjab took over the whole estate of the family under their superintendence and management. Thereafter a written statement was filed by the Courts of Wards in which it was contended that the bond in suit was not executed according to law nor did its consideration pass to the defendants. The executants had no right to borrow the money and the defendants or the joint family were not liable for the payment of any portion of the debt which was not contracted for legal or family necessity. It was also contended that the executants could not have mortgaged the property as they were not its owners at the time of the execution of the mortgage and that the rate of interest was very high and there was no necessity for borrowing at that rate of interest. The learned Subordinate Judge found that the mortgage was not made for any family necessity and was not binding on it or the family property. As the property mortgaged was subsequently acquired by the mortgagors, the learned Subordinate Judge found that the mortgage was valid and binding on the property mortgaged. He also found that the due execution of the mortgage-deed in suit for consideration was proved.