DHARA SINGH Vs. BHARAT SINGH

JUDGEMENT

(1.) This is an appeal by Dhara Singh, defendant 1 in the suit, against a decree passed by the learned Subordinate Judge of Meerut, dated 2 September, 1931. The plaintiff's claim against defendants 1 and 2 was for a declaration that certain property specified in the plaint could not be sold in satisfaction of a mortgage decree No. 103 of 1929 in a case to which he was not a party. The facts of the case can be shortly stated as follows: The plaintiff Bharat Singh by name is the son of Har Narain, defendant 2 in the case. On 14 August 1917, defendant 2 executed a simple mortgage of certain property in favour of appellant-defendant 1 in the suit. The property which was mortgaged consisted of zamindari property and one house in the city of Meerut. The zamindari property comprised the entire khewat No. 1-2, mahal Gulab Singh, in the village of Kori Kamalpur, District Meerut. The consideration for the said mortgage was a sum of Rs. 4,000. In due course defendant 1 obtained a decree upon this mortgage against defendant 2 only and proceeded to sale of the mortgaged property; hence this suit.

(2.) It was the plaintiff's case that defendant 2 and the plaintiff being father and son constituted a joint Hindu family, and, as such, were owners of ancestral property, namely 2/3rds of khewat No. 1-2, mahal Gulab Singh, Mouza Kori Kamalpur, and 1/3 of the house already mentioned, situate in the city of Meerut. According1 to the plaintiff his father defendant 2 had mortgaged the property in question in order to raise the sum of Rs. 4,000, to pay what was due upon the latter, pre-empting certain property. It appears that the remaining 1/3 of the zamindari property, namely, khewat No. 1-2, mahal Gulab Singh, Mauza Kori amalpur, belonged to Ram Saran Das, the brother of defendant 2, who sold it to Mt. Nabi Begam. Defendant 2 preempted the property in order to acquire the whole mahal and had to pay Rs. 5,100 for it. He actually paid Rs. 1,100 in cash and raised the remaining Rs. 4,000 by executing the mortgage of 14 August 1917, to which we have previously referred. The security given, as we have stated, consisted not only of the preempted property but also the property already owned by defendant 2 alone or jointly with his son.

(3.) The plaintiff contended in this suit that as the major portion of the property mortgaged was ancestral property, the mortgage was not valid and binding on the property and that the property in dispute could not be sold by the mortgagee in execution of his mortgage-decree. In short, he contended that as the mortgage was executed to raise money to pay off a pre-emption decree, it was not executed for legal necessity and was therefore void. Defendant 1, the present appellant, denied that the property in question was ancestral property and that being so he contended that the mortgage was a valid one and that the property could in due course be sold. In the alternative he contended that even if the property was ancestral yet such could be sold by reason of the fact that the mortgage was executed for legal necessity and for the benefit of the family and the remaining property of the family or in short, for the benefit of the estate. The learned Subordinate Judge came to the conclusion that defendant 2 could not bind the ancestral property and he, therefore, declared that only the property other than ancestral property was liable to sale in execution of decree No. 103 of 1929 which had been obtained by defendant 1 against defendant 3. Against this decree defendant 1 has preferred a first appeal to this Court, and before us to day his counsel on his behalf has taken two main points. We shall deal shortly with these contentions.