JAI PRAKASH Vs. BHAGWAN DAS AND CO

JUDGEMENT

(1.) This is a defendant's first appeal against a decree of the learned Civil Judge of Dehra Dun decreeing the plaintiffs suit for the recovery of Rupees 10,478-6-9 due upon a cash credit bond hypothecating certain property. The suit was to enforce this hypothecation bond or mortgage executed by defendant 1 in favour of the plaintiffs which was dated 18 August 1924. By that bond or mortgage certain property in Mussoorie was made security for the money advanced, viz. : Rs. 10,000 and in this suit the plain, tiffs claimed to enforce their rights against such property. Defendant 2 who is the present appellant is the minor son of defendant 1. Defendant 2 who alone filed a written statement raised the usual defences to this kind of suit. He alleged that the property which had been mortgaged by his father, defendant 1, was ancestral property and that the mortgage was not binding upon the property as it had not been executed for legal necessity; on the other hand the plaintiffs alleged in their plaint as amended that the property concerned was not ancestral property but on the contrary was the self, acquired property of defendant 1 and that the mortgage was binding upon the property even if no legal necessity for the same was established.

(2.) The learned Civil Judge held that the property mortgaged was the separate or self-acquired property of defendant 1 and that the mortgage was a valid mortgage which could be enforced by the plaintiffs in this suit. Consequently he decreed the plaintiffs claim and against this decree defendant 2 has preferred this appeal. As we have stated previously the property in question is situate in Mussoorie. Admittedly it had belonged to Banwari Lal, the father of Chandra Shekhar Das, defendant 1. On 27 June 1920 Banwari Lal executed a will, a copy of which is printed at p. 27 of the paper book. In the first paragraph of that document he describes the property as being property possessed and acquired by him during his lifetime. By this will he devised and bequeathed his property to his three sons Chandra Shekhar Das, defendant 1, Sham Sundar Das and Sheo Prasad. It is the property bequeathed to Chadra Shekhar Das, defendant 1 which is the subject matter of the mortgage of 18 August 1924 and this suit. Banwari Lal died on 20 December 1920 and in due course his son Chandra Shekhar Das obtained possession of this property which had been bequeathed to him.

(3.) Counsel for the appellant has contended before us that the decree of the learned Civil Judge cannot be sustained for two reasons. In the first place he argued that the evidence in the caseshowed that the property held by Banwari Lal, the father of defendant 1, was ancestral and therefore that Banwari Lal had no power to make the will which he purported to make on 27 June 1920. That being so the property mortgaged was ancestral property and not the self-acquired property of the mortgagor. In the second place counsel for the appellant has argued that even if the property in the hands of Banwari Lal was his separate property and even if he had power to devise and bequeath it by will, yet the property bequeathed to Chandra Shekhar Das defendant 1 became ancestral or family property in the hands of defendant 1 after Banwari Lal's death. We shall shortly deal with these two contentions.