JAI GOBIND SINGH Vs. PACHKAURI RAM

JUDGEMENT

(1.) This appeal arises out of a suit brought to enforce two simple mortgages executed by defendants 1 and 2, one on 4 October 1923, for Rs. 2500 carrying compound interest at Re. 1-1-0 per cent, per mensem with yearly rests and the other, on 24 April 1930, for Rs. 1800 carrying compound interest at 1 per cent, per mensem with yearly rests. Defendants 1, 2 and 3 are brothers. Defendant 4 is the son of defendant 1. Defendants 5 and 6 are the sons of defendant 3 and defendant 7 is the son of defendant 5. All these defendants are members of a joint Mitakshara family of which defendant 1 is the karta. Defendant 7 is a subsequent mortgagee. The suit was contested by defendants 3 to 7 mainly on the grounds that the mortgages were invalid for want of legal necessity and that the rate of interest was excessive. The learned Subordinate Judge who heard the suit has decreed it and defendants 3 to 7 have preferred this appeal.

(2.) The first point urged on behalf of the appellants is that there was no legal necessity for the execution of either of the mortgage bonds in suit. The first mortgage; bond, Ex.5, of which the consideration was Rs. 2500, recites that Rs. 1500 was required to pay off an earlier mortgage debt due to one Lal Bahadur Singh on a registered bond dated 3 April 1922, and the remaining Rs. 1000 was due to the mortgagees (plaintiffs), after some remission on several bonds-and a hand note executed by defendant 1, The earlier mortgage in favour of Lal Bahadur Singh was executed by the three brothers, defendants 1, 2 and 3. So the debt due on that mortgage was antecedent debt binding on defendants 4 to 7. The plaintiffs have proved that this debt was satisfied on payment of Rs. 1500 out of the consideration of Ex.5 and they have produced the satisfied bond. Accordingly, all the defendants are liable under the mortgage bond Ex.5 so far as this sum of Rupees 1500 is concerned.

(3.) As regards the remaining Rs. 1,000, the plaintiffs have produced the earlier bonds Ex.2 series and hand note Ex.3, which were all executed by defendant 1. The debts due on these transactions do not come under the category of antecedent debt, and therefore the plaintiffs have got to establish legal necessity for the same. The genuineness of the documents has not been disputed. Plaintiff 2 (P.W.1) stated that defendant 1 borrowed money from him under simple bonds and hand note for meeting costs of gilandazi supplied by him and costs of Collectorate partition and also for cultivation expenses. This statement is supported by the recitals in the said bonds Ex. 2 series and hand note Ex.3. The only attack on the evidence of this witness is that in his cross examination he said that without looking to the bonds and hand-note he could not say for what particular purposes the loans were taken. This is quite natural because there were several transactions which took place many years ago.