ATAR SINGH Vs. RAGHU NATH SAHAI

JUDGEMENT

(1.) THIS is an appeal by the sons of the mortgagor in a suit brought by the mortgagee to enforce a mortgage executed in his favour on the 21st of April 1913. The mortgagor is one Bholar alias Pahalwan. The claim was disputed by the sons on the ground that there was no family necessity for the mortgage. They also urged that the mortgage - debt was incurred for immoral purposes. As regards the first point, what we have to consider is whether the mortgage debt now in dispute was incurred in lieu of an antecedent debt. Assuming that the observations contained in the judgment of their Lordships of the Privy Council in the case of Sahu Ram Chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 439 : 22 M.L.T. 22 : 6 L.W. 213 : 44 L.A. 126 (P.C.) apply to this case, it has, in our opinion, been established that the mortgage in suit was given for an antecedent debt. THIS mortgage was executed in lieu of the amount of a prior mortgage of the 10th of March 1911. That mortgage was for a sum of Rs. 7,000. Out of the consideration for the aforesaid mortgage, Rs. 2,220 was the amount of a prior mortgage; Rs. 2,000 was the consideration for a sale obtained by the mortgagor of certain mortgagee rights which the present mortgagee had purchased from him and resold to him. THIS sum was clearly consideration for the acquisition of property for the joint family and was, therefore, a debt for which the joint family was liable. The other items secured under the mortgage of 1911 were all monies which were borrowed otherwise than on the security of the family property. The amount of the earlier mortgage for Rs. 3,000, part of which was Rs, 2,200 mentioned above, also consisted of debts which had been incurred by the father of the appellants apart from the security of the family property. It follows, therefore, that the mortgage, which is now sought to be enforced, was a mortgage exeocuted in lieu of antecedent debts incurred for the benefit of the family. THIS case very much resembles the case of Brij Narain Rai v, Manala Prasad 50 Ind. Cas. 101 : 41 A. 235 : 17 A.L.J. 240 : U.P.L.E. (A.) 49. We are, therefore, of opinion that the mortgage now sought to be enforced was a mortgage which would be binding on the sons of the mortgagor and on the joint family property, unless it could be shown that the debt was incurred by the father for immoral purposes. As to this last point there is no evidence to show that this particular debt for which the mortgage in suit was executed were incurred for purposes of immorality. Some evidence was given as to the general immorality of the mortgagor, but that is not sufficient to taint the present mortgage in any way. The appeal is thus, in our opinion, without force and we dismiss it with costs, including fees in this Court on the higher scale.