Agarwala, J. - (1.) This is a defendants' appeal arising out of a suit for recovery of money on the basis of a simple mortgage bond. The facts found and not now in dispute are as follows: One Narain Das was possessed of considerable property. He died in 1910 leaving his widow Shrimati Chironja. Defendant-appellant l, Angne Lal, was Narain Das's posthumous son. During Ms minority, Shrimati Chironja was appointed his guardian. In 1916 she died and then one Baldeo Prasad, maternal uncle of Narain Das, was appointed guardian. Narain Das in his life-time used to carry on money-lending, cloth and corn business. After his death, the said business could not be continued. When Baldeo Prasad was appointed guardian, in 1916, he started Kirana and cloth business on behalf of Angne Lal, minor. This business was carried on in one of the shops belonging to Narain Das after ejecting tenants from it. In 1927 Angne Lal's first son Ram Rakshpal, defendant 2 was born and then his second son Mool Chand was born. Angne Lal attained majority in 1931 and continued the said business which bad been started by Baldeo Prasad. On 26-10-1931 he borrowed a sum of Rs. 1,000/- from the plaintiff-respondent by executing a simple mortgage bond hypothecating certain ancestral properties. The bond recited that the money was borrowed for purposes of investment in the cloth shop and continuation of the Kirana shop. It is in evidence that this sum was in fact utilised for the purposes of this business.
(2.) The plaintiff-respondent sued for recovery of the money due upon the bond in 1941. The defendants to the suit were Angne Lal himself and his two sons Ram Rakshpal and Mool Chand. Their defence was that the money was not borrowed for any legal necessity and, as such, the mortgage was not binding on them. They raised several other defences also with which we are not concerned. The trial Court held that the business for which the money was borrowed was not ancestral and was a new business started by or on behalf of Angne Lal and that, therefore, the sons of Angne Lal were not bound by the alienation in dispute, and dismissed the suit. The lower appellate Court came to a contrary conclusion and held that the cloth business which was started by Baldeo Prasad on behalf of Angne Lal was a continuation of the old ancestral business of Narain Das and that the Kirana business was not a business of hazardous nature or a new venture. It further held that the family of Angne Lal was a trading family, and that he had entered into Kirana business in order to derive more income for the family. It, therefore, held that the money borrowed was for legal necessity and, as such, binding on the appellants.
(3.) In this second appeal the point urged on behalf of the defendants-appellants is that the finding of the Court below that the money was borrowed for an ancestral business is not correct and that, therefore, its finding that the money was borrowed for legal necessity cannot be maintained.;