RAM PRASAD Vs. BISHAMBHAR NATH

JUDGEMENT

(1.) This is a first appeal by one of the defendants Ram Prasad against a decree passed by the learned Subordinate Judge of Agra, decreeing the plaintiff- respondent's claim for the enforcement of a certain mortgage. Amongst the original respondents to this appeal was one Brij Behari, a minor, who appeared through his mother Mt. Bangalo. Since the filing of the appeal Brij Behari has been declared to be a major and an application was made by counsel on his behalf to- day praying that he should be transferred from the array of respondents to the array of the appellant. Counsel for the respondents objected but we thought it proper that Brij Behari who is a son of the mortgagor and who, was a minor when the debt was incurred should have an opportunity of contesting before us the findings of the Court below. The appeal, therefore, now stands as the appeal of Ram Prasad and Brij Behari. The suit arises out of a mortgage bond dated 19th February 1921 which was executed in favour of the plaintiff-respondent by Har Narain, defendant 1, on behalf of himself and as guardian of his three minor sons. Defendants 2, 3 and 4 were the minor sons, one of whom, as we have stated, Brij Behari, has become major and is now an appellant. Ram Prasad is defendant 9 and is a transferee of the subject-matter of the mortgage. Certain other defendants are transferees of part of the mortgaged property, whilst defendant 13, Babu Lal, was a co-mortgagee with the plaintiff, but by reason of a partition between them the mortgage had been allotted entirely to the plaintiff who consequently brought these proceedings in his own name making his original co- mortgagee a pro forma defendant.

(2.) The property mortgaged consisted of two houses, Nos. 838 and 838/1. The mortgage recites that the mortgagor was under a necessity to raise a loan for the construction of balakhanas over his new house and for purposes of his business. By the mortgage-deed he borrowed a sum of Rs. 8,000 and agreed to pay interest at the rate of 11 as. per cent, per mensem compoundable quarterly. Interest having fallen in arrear the plaintiff has brought this suit impleading the original mortgagor and his family and subsequent transferees claiming a sum of Rs. 8,000 principal and Rs. 6,765 interest which the plaintiff has calculated at the rate of 11 as. per cent. per mensem simple. The minor sons of the mortgagor and Ram Prasad contested the validity of this mortgage in the Court below and took all possible grounds open to them. They denied due execution of the mortgage deed and the passing of consideration, but upon these issues the learned Subordinate Judge found in favour of the plaintiff. It is now conceded that the mortgage sued upon was duly executed and that the consideration named therein did pass from the plaintiff to the mortgagor Har Narain.

(3.) It was further urged on behalf of the defendants in the Court below that the property mortgaged was ancestral and that there was no legal necessity to support the loan. Upon these issues the learned Subordinate Judge found that at least part of the property was ancestral, viz. house No. 838. As to house No 838/1 it would appear that the learned Judge was of opinion that this was not ancestral property but was self-acquired by the mortgagor himself. The learned Subordinate Judge, however, was abundantly satisfied that there was legal necessity to support this loan. He finds that the money was borrowed for the purposes of completing an unfinished house and for financing an iron foundry business upon which the family was entirely dependent. Two points have been taken on behalf of the appellants before us and we shall deal with them very shortly.