BIHARI LAL Vs. BABU SINGH

JUDGEMENT

(1.) The suit which has given rise to this appeal was brought by the respondent to recover money due upon eight mortgage bonds by sale of the property hypothecated in each bond. There were two brothers, Rup Singh and Mahtab Singh, who formed members of a joint Hindu family. A portion of the family property was recorded in the name of their mother Indar Kunwar and for this reason she joined her sons in executing some of the bonds. Of the eight bonds in suit two were executed by Mahtab Singh alone; two by Mahtab Singh and Indar Kunwar; one by Rup Singh and Mahtab Singh; another by Rup Singh and Indar Kunwar; another by Rup Singh, Mahtab Singh, and Indar Kunwar, and one by Rup Singh and Indar Kunwar. Rup Singh and Mahtab Singh being dead, the suit was brought against their sons, who disputed the claim mainly on the ground that the debts in respect of which the eight bonds were executed had been incurred by Rup Singh and Mahtab Singh for immoral purposes, and that the interests of the sons in the family property were not therefore liable. This plea was overruled by the Court below, which was of opinion that it had not been proved that the debts were tainted with immorality. That Court accordingly made a decree in favour of the plaintiff. Its is admitted that the decree a framed is not strictly accurate. It purports to direct the sale of all the property mortgaged in all the eight bonds for the total amount secured by those bonds, whereas the property mortgaged in each bond was liable only for the amount of that bond. This is what the plaintiff claimed in his plaint. The learned advocate for the respondent concedes that in this respect the decree of the Court below must be varied,

(2.) The present appeal has been preferred by the sons of Rup Singh alone. The son of Mahtab Singh was submitted to the decree. It is contended on behalf of the appellants that it has been established that the debts in question were incurred for immoral purposes, except the amount of one bond, namely, that for Rs. 400, dated the 25 of Match 1898. In regard to the amount of that bond it has been shown that it was borrowed for payment of Government revenue, which was actually paid, and Mr. Wallach fairly concedes that as regards this bond he can urge nothing on behalf of the appellants.

(3.) As for the last four bonds, which were executed by Mahtab Singh, and to two of which his mother Indar Kunwar was a party, the son of Mahtab Singh has taken no exception, but, as said above, the decree must be varied to this extent that it should direct that the amount of those bonds should be recovered by sale of the property hypothecated in each of them, so that when the decree is so varied the appellants will have no reason to complain.