SARDAR SURENDAR SINGH Vs. CHAUDHRI GHULAM MOHAMMAD

JUDGEMENT

(1.) This is an appeal by the plaintiffs in the suit from a decree dated 7 October 1936, of the High Court of Judicature at Lahore, which set aside a decree dated 4 December 1935 of the Court of the Senior Subordinate Judge, Sheikhupura. The plaintiffs who are the sons of Sardar Balwant Singh, deceased, a Sikh Jat, brought their suit to obtain possession of ancestral lands which had been mortgaged by their father in their lifetime by way of usufructuary mortgage in favour of the respondent (defendant) Chaudhri Ghulam Mohammad. They alleged in their plaint that according to the customary law of the agriculturists of the Punjab, which admittedly governs the transaction, their father was not competent to mortgage the ancestral lands without legal necessity and that there was no such necessity for the mortgage in the present case. They accordingly prayed for a decree that the mortgage was ineffectual to bind their reversionary rights in the land and for possession.

(2.) The mortgage deed is dated 10 September 1928, and was given for the purpose of securing the sum of Rs. 14,000. Of this sum Rs. 11,000 was paid to Balwant Singh in cash and the balance of Rs. 3000 was retained by the respondent in satisfaction of a like sum then remaining due to him from Balwant Singh under an earliar mortgage of other land dated 16th August 1927. It is a well-established rule that in such circumstances the onus lies on the mortgagee of proving either that there was legal necessity in fact which would justify the mortgage, or that he made a proper and bona fide enquiry into the alleged necessity and satisfied himself as to the existence of such necessity : see Lala Atma Ram V/s. Thakur Sadhu Singh, (1938) 25 AIR PC 77. But it also appears from the same case, and the authority there cited, that if he discharges this burden he is not bound to see that the money paid by him is actually applied by the mortgagor to meet the necessity.

(3.) The legal necessity that is said to have existed in the present case was the existence of a number of debts owing by Balwant Singh, and it is plain that the payment of the debts of a mortgagor is a legal necessity, if such debts can be described as "just debts." The question of what is a just debt for this purpose has been authoritatively answered by this Board in Kirpal Singh V/s. Balwant Singh, (1913) 40 Cal 288. It was there held, approving the definition given by a Full Bench of the Chief Court of the Punjab in an earlier case, that a just debt means a debt which is actually due and is not immoral, illegal, or opposed to public policy, and has not been contracted as an act of reckless extravagance or of wanton waste, or with the intention of destroying the interest of the reversioners. In the present case the plaintiffs made no attempt to show that their father lived an immoral life or was recklessly extravagant or wantonly wasteful. Nor did they suggest that he executed the mortgage with the intention of damaging the reversioners. All that could be said against him was that he drank to excess. This was probably true, seeing that his death which occurred in the mon January, 1934, was due to cirrhosis of the liver. But apart from this failing, he seems to have borne a good character and was treated as a respectable member of society. There was not, therefore, any prima facie reason for supposing that the debts which had been incurred by Balwant Singh were not "just debts." The onus nevertheless lay upon the defendant mortgagee of proving that the debts could properly be so described.