GHASITEY MAL Vs. HAR PRASAD

JUDGEMENT

(1.) This is a second appeal by the plaintiff against concurrent decrees of the two lower Courts. The plaint sets out that the plaintiff was a mortgagee under a simple mortgage from Pancham deceased, and his minor brother Ram Dayal,. dated 6th August 1928. These two mortgagors were sons of Har Prasad, defendant 1, who is still alive. The property mortgaged was a house. Para. 3 of the plaint sets out: Pancham, the principal mortgagor, is dead, defendant 1. the father, and defendant 2, the brother, are the heirs in possession of the property left by the deceased and are liable to pay the debt claimed.

(2.) The defence taken on behalf of Har Prasad and the minor Ram Dayal, was that Pancham was not the owner of the House and had no right to mortgage the house, and that the house had been exclusively acquired by Har Prasad out of his own funds. The trial Court found that the house in question had been bought by a sale deed of 16 March 1925 in favour of Pancham and Ram Dayal minor, but that it was true that Har Prasad had an ancestral house which he sold by a sale deed of 4 December 1917 and there was therefore, nucleus of the joint ancestral property and the presumption was that the two defendants and Pancham formed a joint Hindu family and that the house, which was mortgaged to the plaintiff was purchased from the joint family funds and was the property of the joint family. Accordingly the trial Court gave a decree in favour of the plaintiff for recovery of Rs. 1,000, the amount of mortgage money, with costs and future interest, against the assets of Pancham, deceased in the hands of the two defendants, and the house was exempted as the Court held that it could not be legally mortgaged by Pancham. The plaintiff filed an appeal claiming, (ground No. 1) that the house belonged to Pancham and his brother as self-acquired property, and (para. 2) that the plaintiff got the mortgage deed executed bona fide from the ostensible owners, that defendant 1 was estopped from pleading that Pancham had no right to mortgage the house, that (para. 3) Pancham was at least the "karta" of the family, that (para. 4) there was no nucleus of the joint family property and that (para. 5) the trial Court ought to have passed a mortgage decree against defendant 1 to the extent of two previous bonds of his which formed part of the consideration. The lower appellate Court agreed with the trial Court. The consideration in the mortgage-deed was made up as follows:

(3.) The appeal was therefore dismissed. In the second appeal a new ground has been taken on behalf of the plaintiff in ground No. 4, which states: Because on the facts admitted and found Pancham must be taken to have executed the deed in question with the consent of his father, and this is not a case of a junior member alienating property against the wishes of the manager, but this is a case in which Pancham was equipped with the necessary authority by his father.