GANPATI PANDURANG Vs. RAMESHWAR MOTIRAM

JUDGEMENT

(1.) THIS is a Letters Patent appeal against the decision of Grille J. in S.A. No. 565 of 1938. The plaintiffs, who are the appellants, formed a joint Hindu family with their father defendant 3, and uncles (defendants & and 5). The family owns the suit houses as ancestral property. Defendants 3 and 4 mortgaged the property on 7-11-1921 with defendants 1 and 2 for Rs. 900. Defendants l and 2 sued defendants 3, 4 and 5, and obtained a decree for sale of the mortgaged property against defendants 3 and 4. It was held in that case that the mortgage debt was not binding on defendant 5, a brother of defendants 3 and 4, inasmuch as it was not incurred for legal necessity but was incurred for a new business which was started by defendants 3 and 4. The decree was subsequently made final.

(2.) THE plaintiffs, who are the sons of defendant 3, instituted the present suit for a declaration that their interest in this house property is not affected by the mortgage in favour of defendants 1 and 2 on the basis of which they obtained a mortgage decree in civil suit No. 50 of 1933, and that defendants 1 and 2 are not entitled to sell their interest in the mortgaged property in execution of the said decree. Defendants 1 and 2, who are the mortgagees, resisted the suit. They urged that the property was self-acquired property and not ancestral property. They further urged that even if it be found that the property was ancestral, plaintiffs 1 and 2, who lived with their father (defendant 3), were duly represented in the previous suit by their father and were bound by the decree passed against their father, particularly because the plaintiffs did not challenge the debt as illegal or immoral. The plaintiffs, however, contended that the debt was not incurred for legal necessity or for the benefit of the plaintiffs and that therefore the mortgage was not binding on them, and, consequently, the decree that was obtained on the basis of that mortgage was also not binding on them and their shares of the property could not be sold in execution of that decree. Regarding the plea of pious obligation it was stated that that contention was open only in cases of simple debts and not in cases of mortgage debts.

(3.) THE trial Court held following Jainarayan Mulchand v. Sonaji A.I.R. 1938 Nag. 24 that inasmuch as the plaintiffs had not raised the plea that the debt incurred was for illegal or immoral purposes the fact that it was not for legal necessity or for the benefit of the minors was immaterial, and in view of the fact that the decree was passed against the father who represented the family the plaintiffs were not entitled to challenge the decree and the impending sale of their interest in the property. It held that the debt was binding on the plaintiffs, not because it was for legal necessity or for the benefit of the family but because they being sons were under a pious obligation to pay all the debts of the father.