NASIRABAD URBAN COOPERATIVE BANK Vs. GYANCHAND JAIN

JUDGEMENT

(1.) THIS is an appeal by the Nasirabad Urban Co -operative Bank Ltd., Nasirabad against the judgment and decree of the Senior Civil Judge, Ajmer, dated 30th April, 1962, decreeing the plaintiff's suit for declaration that the mortgage award and decree is not binding on the plaintiff and the joint family property and restraining the appellant from getting the properties sanctioned in execution of the award as a mortgage decree.

(2.) ONE Parasdas resident of Nasirabad died in May, 1911, leaving behind his widow Smt. Magnabai and two sons Seerchahand and Gyanchand. They all constituted a joint Hindu family and belonged in Ajmer -Merwara and are subject to the Mitakshara Law. On the 9th May, 1952. Smt. Magna Bai mortgaged one bungalow and ice -factory, which was the joint family property which had come to the share of Parasdas on partition between him and his brother, with the appellant Bank as security against over -drafts on the Bank to the extent of Rs. 10,000/ -. On a dispute having arisen between Magna Bai and the Bank, the matter was referred to arbitration under the provisions of the Co operative Societies Act and as award was given in execution of which the mortgaged properties were, put to sale. Beerchand son of Magns Bai was one of the sureties for for the repayment of the loan for which the properties were mortagaged. The second son of Parasads, that is, Gyachand, on attaining majority and having come to know of the mortgages instituted this suit for declaration that the said mortgage was not binding Upon the joint family properties and was void and further in the mortgage decree the joint family properties were not liable to be sold. The appellant contended the suit and pleaded that Magna Bai had taken the loan for running the joint family business and as such it was binding upon the joint family property. It was further stated that Beerchand defendant No. 2 who had stood surety was bound to repay the loan and as such no relief could be granted to the plaintiff so far as 1/3rd share of Beerchand in the joint family property was concerned. Bar of limitation was also pleaded.

(3.) IN support of the issues Gyachand gave his own statement and examined one witness Murarilal. The Bank in rebuttal examined Keshari Mal D. W. 1, Pokarmal D. W. 2, Onkar Nath D. W. 3. Manohar Lal D. W. 4 and Jaskaran D. W. 5 to show that the loan was taken by Magnabai for running the ancestral business.