KALI SHANKAR Vs. NAWAB SINGH

JUDGEMENT

(1.) This appeal arises out of a suit for sale brought upon three mortgages. The first of these is dated the 25 of June 1894, and is for Rs. 6,200, the second dated the 30 of March 1895, is for Rs. 3,000 and the 3 is dated the 8 of July 1895, and is for Rs. 2,000. The suit was brought not only against the mortgagor bat also against his sons and grandsons. The latter contested the claim and urged that their interests in the mortgaged property could not be affected by the mortgages.

(2.) The court below found in respect of the first mortgage of the 8 of July 1895, that necessity for incurring the loan, for the benefit of the joint family had been established and made a decree for the amount of that mortgage to be realised by sale of the mortgaged property. As regards this part of the decree there is no controversy in this appeal.

(3.) As regards the second mortgage, namely, that of the 30 of March 1895, the court below was of opinion that although, the debt was not tainted with immorality, it had not been proved that it was incurred for family necessity. The claim in respect of that mortgage was accordingly dismissed. In view of the recent Full Bench ruling in Chandra Deo Singh V/s. Mata Prasad (1909) I.L.R. 31 All. 176 and the opinion of the majority of the Judges constituting the Full Bench, it must be held that the court below has rightly decided that the burden of proof was upon the plaintiff. As the plaintiff failed to prove that the mortgage was made for the benefit of the family his claim was rightly dismissed. Mr. Sundar Lal, the learned advocate for the appellant, does not contest the correctness of the lower court's finding as to the non-existence of necessity for the loan. He, however, raises the question whether in respect of this debt a decree should not be passed for sale of the father's interests in the mortgaged property, the debt not being tainted with immorality. This question I will consider later.