BAIJNATH PRASAD Vs. SATI LAL SAHU

JUDGEMENT

(1.) This appeal is by the minor sons of one Bhagwan Sahu who were the defendants in a mortgage suit brought upon the mortgage dated August 7, 1924 executed by Bhagwan Sahu and his nephew Biswanath Sanu. The appeal us in a very small compass and is limited to the question of legal necessity as regards a portion only of the consideration which is recited in the bond as being Rs. 2,100 In this appeal we are concerned only with Rs. 586 out of a sum of Rs. 3,700 being adebton a hand-note executed by Biswanath and a sum of Rs. 2,675 paid by the plaintiff to the defendants at the time of the registration of the bond.

(2.) In the argument a question was raised as to the passing of consideration but we are relieved of the necessity of discussing the matteras it is not pressed.

(3.) The next question is whether there wss legal necessity or due enquiry as regards the Rs. 586 and Rs. 2,675. As regards the first item, the plaintiff states in his evidence Biswanath Sahu Bhagwan Sahu and Jagdeo Lal said they required Rs. 600 urgently and it might be advanced to be deducted when the mortgagee bond was executed, and then he goes on to say that he took a new hand note for Rs. 3,700 of which Rs. 586 was to form a part, it is clear on that evidence(there being no evidence whatever of any enquiry as to the necessity of this part of the sum) that the loan cannot be supported On the footing that it was an antecedent debt. As regards the Rs. 2,675 the plaintiff's claim in regard to that depends entirely upon the proof of a bona fide enquiry as to the necessity of that advance. As regards that, the plaintiff himself states that it was for the purpose of paying off small creditors whom he names. But it is established by one of the other witnesses that these creditors were not paid by the plaintiff but that the sums due to them were handed over to Bhagwan and Biswanath. Harihar Prasad (plaintiff's witness No. 2) proves this. He also stated in his evidence "Jagdeo Lal had told us how much was to be paid to mahajans and how much was to be paid in cash out of the consideration money of Rs. 21,000". Sir Sultan Ahmed frankly concedes that that evidence does not establish any, bona fide enquiry and that being so, the plaintiff will be entitled to a mortgage decree for Rs. 21,000 less these two items of Rs. 586 and Rs. 2,675-10-0 that is to say, Rs. 17738-6-0. But it is contended by Sir Sultan Ahmed that the plaintiff will be entitled to a mortgage decree for the full amount as the bulk of the consideration had been proved. This contention would be relevant and could avail the plaintiff only in a case where it is sought to support a sale of property of a joint Hindu family. But this is a case of mortgage and the plaintiff therefore, would only be entitled to a mortgage decree for the amount which is justified by the necessity of the family.