JAGDISH PRASAD Vs. HOSHYAR SINGH

JUDGEMENT

(1.) In the present case the sons suit was filed after the mortgagee had obtained a mortgage decree against the father without impleading the sons, but before the mortgage property was actually put up for sale at auction.

(2.) I agree in the final conclusion arrived at by my learned brethren that the sons can obtain a declaration avoiding the mortgage if the mortgagee fails in establishing legal necessity for the advance, even though the sons themselves fail to show that the debt was tainted with immorality. My reasons, however, are slightly different.

(3.) I agree that the case of Brij Narain V/s. Mangal Prasad A.I.R. 1924 P.C. 50 must be taken to summarize all the propositions which follow as a result of the previous authorities, and should be deemed to include all the observations made in the case of Sahu Ram Chandra V/s. Bhup Singh A.I.R. 1917 P.C. 61, which were supported by authority. It is clear from the remark at pp. 102-3 in Brij Narain's case A.I.R. 1924 P.C. 50 that the Sahu Ram Chandra's case A.I.R. 1917 P.C. 61 must not be taken to decide more than what was necessary for the judgment.