MARUTHAPPA SERVAI Vs. NIRAIKULATHAN SERVAI

JUDGEMENT

(1.) This is a suit brought upon a mortgage-deed of 1920 by the mortgagee to enforce his mortgage. The mortgagor is the first defendant. The other defendants are his two grandsons, defendants 2 and 3. In the mortgage-deed the property is described as belonging to the mortgagor himself but it has been found by the Court of first instance that the property mortgaged was really the joint family property of the mortgagor and his grandsons. The purpose for which the money was borrowed was recited to be to pay an advocate who was engaged to assist the police in prosecuting a man accused of having murdered the first defendant's son, who was also the father of defendants 2 and 3. Both the Courts have held that this was a purpose binding upon the joint family and have given a mortgage decree over the whole of the property, that is to say, including the shares of defendants 2 and 3 as well as the share of the first defendant.

(2.) It is contended in this second appeal that this finding is wrong and that the mortgage as a mortgage can be valid only as against the share of the first defendant. The learned Advocate for the respondent, however, argues that the question whether any particular sum of money had been borrowed for family necessity or purpose binding upon the family is a question of fact and that as both the lower Courts have given findings on this question, I am precluded from interfering with those findings in second appeal. I agree that in the main the question whether money had been borrowed for family purpose is a question of fact. I agree also that there is a finding in the present case that money was necessary if a pleader were to be engaged to assist the police, that is to say, that the money was not otherwise available. But it does not seem to me that either of the Courts below have definitely given any positive finding of fact on this point. They are clearly obsessed by the difficulty of the situation. In the ordinary sense of the word it is not necessary and never can be necessary to spend money in order to assist in the prosecution of a person accused of the murder of a member of one's family. To have that person convicted and even hanged can do the family no good; it cannot restore the murdered man to life; it cannot be said to affect the finances of the family or even its prestige. In any case the Courts below have not seriously faced this problem. The District Munsiff in giving his finding merely says that: In the absence of decided rulings either way I am inclined to hold that this is an item of expenditure which should bind the family. To hold otherwise would sometimes work grave hardship.

(3.) And the learned Subordinate Judge says as follows: In the present instance the debt in question was incurred for the purpose of finding out and bringing to book the real offender, that is to say, for the vindication of justice. Such an object seems to me proper and lawful and the vindication of justice is as much a necessity as the defence of an accused member of a family.