Kapur, J. - (1.) THIS is a Defendants ' appeal against a decree passed by the Additional District J. Hissar, allowing an appeal against the decree of the enlor Subordinate Judge, Hissar.
(2.) ON 10 -11 -1930, Basheshar Lal mortgaged a Nohra for a sum of Rs. 250/ - with possession. The mortgage was to carry interest at 1/9/ - per cent per mensem. The mortgagors were to pay Rs. 12/ - a year as rent and for the balance they had to pay interest. On 19 -10 -1943, Ghisa Ram major and Hari Ram minor sons of Basheshar Lal brought a suit for possession by cancellation of the registered mortgage deed. The trial Court dismissed the suit on the ground that consideration had been proved and it was for the sons to prove immorality. The learned Additional District J., on the other hand, relying on a judgment of their Lordships of the Privy Council, in 'Brij Narain v. Mangal Prasad' 46 All. 95, allowed the appeal on the ground that this being a mortgage it was for the mortgagee to show that the case fell either within the first or the third proposition laid down by their Lordships. In appeal Mr. Prem Chand Pandit the learned Counsel for the Appellants has submitted that the interpretation put on this Privy Council judgment by the Lahore High Court is that there is no difference whether the debt is a simple money debt of a mortgage debt. He has relied on a judgment of a Division Bench, 'Jogindar Singh v. Punjab and Sind Bank Ltd., Amritsar I.L.R. (1940) Lah. 96, where Addison and Ram Lal, JJ., held that in the second proposition laid down in 46 All. 95, the word 'debt' includes a mortgage debt as well as an unsecured debt. He also relies on another judgment, 'Muni Lal v. Gian Singh', A.I.R. 1931 Lah. 717. As far as the Lahore Court is concerned, these judgments would be binding, on a Single Judge in Lahore. The Privy Council, however, specifically referred to this matter and said at p. 102 as follows: A father who is manager, borrows a like sum from 'A' and 'B'. To 'A' he gives a mortgage on the family estate containing a personal covenant. To 'B' he gives a simple acknowledgment of loan. 'B' sues and gets a decree; on this decree execution can follow and the estate can be taken. 'A', suing upon his mortgage, cannot recover. It seems to have been felt that if the debt for which a mortgage was given was in any proper sense an (sic) then it, so tot speak, escaped the direct fringement of the principle that the father (sic) nager could not burden the estate except necessity. The Allahabad High Court in a Full Bench judgment has interpreted this Privy Council (sic), that there is a difference between a 'simple money debt' and a 'mortgage debt'. In the first and the third propositions the word 'mortgage' has been used by their Lordships. In the second proposition only the word 'debt', has been used, and it appear that a correct interpretation is the one which has been put upon it by the Allahabad High Court, I respectfully agree with that interpretation This being the law, I must hold that the learned Additional Dist. J. has come to a correct conclusion.
(3.) IT appears that the creditor did not realise what his legal position was. In my opinion, this is a fit case in which he should be allowed to prove now, if he can, whether there was necessity for the debt. I, therefore, remand this case for the purpose of inquiring and deciding whether mortgage was for necessity or for the benefit of the family. The remand is under Order XLI Rule 25, Code of Civil Procedure. The parties will appear in the trial Court on 11 -6 -1951. The trial Court must send its report within three months and the District J.'s Court will then give its opinion on the report. The parties will bear their own costs throughout.;