SOHAN LAL Vs. ZORAWAR SINGH

JUDGEMENT

(1.) This is an appeal by the plaintiffs, whose suit for the recovery of Bs. 15,500 on the basis of a hypothecation bond, dated 14 June 1921, has been dismissed by the Court below. The plain-tiffs prayed for a decree under Order 34, Rule 4; Civil P.O., for sale of the hypothecated property, and in the alternative they prayed that if the debt claimed in suit be deemed to have been taken not for the benefit and legal necessity of the defendants family then the amount claimed may be treated as a prior charge on the property which was by means of pre-emption acquired by the defendants. The mortgage was executed by Zorawar Singh, Amar Singh, Pirthi Singh, Puran Singh, and Lekhraj Singh in favour of Pat Earn and Sohan Lal. The plaintiffs to the suit were Sohan Lal and the sons of Pat Ram (Pat Earn being dead) namely Bansidhar and Chheda Lal. The pedigree of the mortgagors might be given at this stage:

(2.) The defendants to the suit are indicated in the pedigree given above. At the time of the execution of the mortgage deed Baldeo Singh, Kalyan Singh and Lai Singh were dead, and it would thus appear that the executants to the document were the adult members of the three branches with this exception that Hukum Singh, one of the sons of Zorawar Singh, who also was major, did not join in the execution of the document, and it was thought that Zorawar Singh would represent him as well. The other defendants were, as is clear from the ages given above, minors, and although Tikam Singh's age is not given in the plaint, but from the evidence of Pirthi Singh it appears that apart from the executants, Hukum Singh alone was major in the family at the time of the execution of the bond. The plaintiffs case was that all the defendants were members of a joint Hindu family and defendant 1, Zorawar Singh, was the manager. Amar Singh from amongst the executants of the bond was dead at the time of the institution of the suit. The defence of the surviving executants, namely Zorawar Singh, Pirthi Singh, Puran Singh and Lekhraj Singh, was that the plaintiffs were under no circumstances entitled to get the property obtained by preemption sold, and the other defendants while advancing this plea further asserted that the document sued on was not executed for any valid necessity and therefore the ancestral property hypothecated under the document was not saleable in execution of any amount under the document sued on. Almost all the defendants admitted that their family was joint, although Chhatarpal who was under the guardianship of the central nazir of Bulandshahr, pleaded that the family of the father of the contesting defendant had been a sic one long before the date of the execution of the document and also at the time of the execution thereof, but he too asserted that the hypothecation in question was not enforceable against the ancestral property and the plaintiffs had no right to have the amount in question declared a prior charge on the pre-empted property, particularly when that property was not included in the hypothecated property mentioned in the document sued on.

(3.) The Court below dismissed the plaintiffs suit, but it observed that: So far as the valid execution of the bond in suit and the payment of its consideration is concerned, it does not appear that the defendants want to challenge it seriously. Defendants 1 to 4. of course who are themselves the executants, do not question it and the others did not appear to be very serious about it as cross-examination of plaintiffs witnesses on these points on their behalf was practically insignificant and ineffective. There is however sufficient and convincing evidence also-in this case to establish the fact that the bond in suit was duly executed by the executants and that the consideration stated therein had duly passed.