GANESH PRASAD SINGH Vs. SHEOGOBIND SAHU

JUDGEMENT

(1.) It is not disputed in this case that as regards Rs. 700 the plaintiff, respondent was entitled to a decree for sale against the properties mortgaged. But the question which we have to determine is as to the other part of the consideration, namely, Rs. 1,300. Mr. Luby, the District Judge, has come to the conclusion that this sum was borrowed in connexion with a joint family business which was that of ferry-farming, and that the debt was contracted for legal necessity, and that all the defendants were liable under the mortgage bond. Had it been a question of the adult members only, I think I should have come to the conclusion that the plaintiff would be entitled to a decree for sale as regards the whole of the consideration. But the difficulty arises by reason of the existence of one minor member, and unless it can be held that the business was an ancestral business, or being joint family business it was indeed for legal necessity, that is to say, legal necessity inconnexion with the joint family estate, the plaintiff would be entitled only to a decree for money as regards Rs. 1,300.

(2.) It is conceded that the finding of the learned District Judge on this question as to the nature of the business was ambiguous. He has not in terms found that it was an. ancestral business, and it was suggested during the course of the argument that the matter should go back for the determination of that question. But on a perusal of the evidence of the plaintiff himself, it is quite clear that the question whether it was an ancestral business or a business of the family not being ancestral was present to the mind of the parties and it was stated in the course of that evidence to which I have just made reference, that no document was "looked to for the purpose of seeing whether it was an ancestral business".

(3.) I gather that the learned Judge in the Court below was not prepared on that evidence to hold that it was an ancestral business, and indeed the finding that it was for legal necessity rather points to that conclusion.