CHHANGANI, J. - (1.) THIS is plaintiff's first appeal from the judgment and decree of the District Judge, Balotra dated 20. 8. 58 dismissing the plaintiff appellants' suit for the enforcement of a mortgage. The appeal came up for hearing before a Division Bench of this Court. One of the questions raised before the Division Bench related to the invalidity of the registration on account of the non compliance with the provisiocs of secs. 35 and 61 of the Marwar Registration Act which are similar to the provisions of the Indian Registration Act except for some changes in sec. 35 of the Marwar Registration Act. A question relating to the validity of the registration deed on account of the non presentation of the deed and non admission made by some of the executants of a deed arose before a Division Bench in Civil First Appeal No 30 of 1957 : Bhaniram vs. Mukandass and was referred to the Full Bench. Having regard to this reference, the present appeal was also directed to be heard by a Full Bench by the order of the Chief Justice dated 6. 10. 70. THIS is how, the appeal has come before the Full Bench.
(2.) THE facts leading to the appeal are briefly these - The plaintiff appellants instituted a suit in the court of District Judge, Balotra on 29. 1. 57 and set out their case as follows - That defendants Mohanlal, Bhanwarlal and Champalal were members of a joint Hindu family, Mohanlal being the Karta. The plaintiffs however added in the plaint that they received information that after the execution of the mortgage deed dated 9. 5 47 defendant No. 2 Bhanwarlal was adopted by Balkishan son of Lichmandass Maheshwari and that defendant No. 3 Champalal was adopted by Hazarimal son of Faujmal Maheshwari. The plaintiffs served notices on them requiring them to reply whether they admit or not their adoption but they gave no reply. Consequently, the plaintiffs impleaded them as defendants in the suit. That on 9. 5. 47 defendant No. I Mohanlal in his capacity as a karta of the joint Hindu family took a loan of Rs. 25. 000/- from the plaintiffs for their joint family business and mortgaged joint family properties consisting of two houses and one shop as described in para 4 (a) to (c) of the plaint Defendant No. 2 Bhanwarlal who was an adult joined in the transaction and signed the mortgage deed Ex. 1. Defendant No. 3 Champalal was a minor and, therefore, could not sign the mortgage deed. According to the plaintiffs, the defendant No. 1 as a karta of the joint Hindu family presented the mortgage deed for registration and got it registered. The defendants agreed to pay interest on the mortgage money at Re. 0/7/- % per month, the annual interest amounting to Rs. 1,312/8/ -. The defendants obtained a lease of the mortaged property and the defendants Nos. 1 & 2 executed a rent note Ex. 2 on 9. 5. 47 fixing annual rental of Rs. 1,312/8/-equivalent to the amount of annual interest. The plaintiffs alleged to have received an amount of Rs. 3,658/8/. till Asoj Bad 2 Samvat 2009 towards interest due under the mortgage deed. They received no payment thereafter. The interest from the date of the mortgage deed upto 5. 2. 57 was calculated at Rs. 14,922/8 and giving a credit of Rs. 3,658/8 the plaintiffs claimed an amount of Rs. 36,264/- due under the mortgage upto 5. 2 57. On the alleged adoption by Balkishan and Hazrimal of defendants Nos. 2 and 3 and their ceasing to have any interest in the mortgaged properties, the plaintiffs treating the defendant No. 1 Mohanlal responsible for the liability under the mortgage and finding him also in possession of the mortgaged properties, demanded possession of the mortgaged properties, from him and also demanded interest. He refused to hand over the possession. On the refusal of the defendant No. 1, the plaintiffs also approached the defendants No. 2 and 3 but they replied that having gone in adoption had nothing to do with the mortgaged properties. The plaintiffs also alleged in the plaint that after the execution of the mortgage deed the market value of the mortgaged properties began declining and the security became inadequate and, therefore, on 10. 7. 56, they served separate notices on the defendants demanding possession of the mortgaged properties and requiring them to the mortgage money or to mortgage additional properties to secure the loan. The defendants however, gave no written reply but verbally informed the plaintiffs to do whatever they considered necessary. The plaintiffs thereupon filed a suit claiming the following reliefs. In clauses "a" and "b" of the relief clause they, in substance, claimed a decree for the recovery of R9. 36,264 by sale of the mortgaged properties and also other properties if the sale proceeds of the mortgaged properties were not found sufficient. In clause "c" they prayed that in case the defendants are prepared to hand over the possession of the mortgaged properties and also to mortgage additional properties to ensure the payment of the mortgage amount together with interest, a decree to that effect may be passed in favour of the plaintiffs against the defendants, In clause "d" of the relief clause, it was stated that in case the defendants desire to continue the usufructuary mortgage they should pay the entire amount of interest due and mortgage additional properties so that the valuation of the mortgaged properties might be double the amount of the mortgage money, and on doing so, the mortgaged properties need not be sold and the right of the mortgagors to redeem the properties be maintained. In clause "e" of the relief clause it was averred that if the defendants Nos. 2 and 3 agree to the fact of their adoptions to Balkishan and Hazarimal respectively and of having no concern with the mortgaged property as entered into mortgage deed and if the defendant No. 1 agrees to it and accepts to have his possession over the mortgage properties and agrees to his responsibility for all the terms embodied in the mortgage deed then the names of the defendants No. 2 and 3 be deleted from the plaint. In clause "f" the plaintiffs added the usual prayer for any relief which may be legally available to them. A detailed reference to the relief clauses has been made as they assumed importance in connection with the controversy relating to the maintainability of the suit. Defendant Mohanlal did not appear and contest the suit and the suit proceeded ex parte against him. Defendant No. 3 Champalal filed his written statement on 19-3-57. The defendant 2 Bhanwarlal filed his written statement on 19-4 57. They took more or less identical pleas. They denied their adoptions by Balkishan and Hazarimal respectively. Their case was that sometime prior to the year 1947 defendant No. 1 wound up the family business and started dealing in wagering contracts in bullion and did not pay any heed to the persuasions of the relations to the contrary. Thereupon Champalal was taken by Hazarimal and Bhanwarlal by Balkishan's widow and they started living with them. Since then they have been separate. They, however, averred that there was no actual partition of the joint family properties by metes and bounds and that the family properties continued to be joint. They, however, denied that defendant No. 1 was the Karta of the family Although they did not specifically admit the execution of the deed by the defendant Mohanlal they do not appear to have seriously challenged the execution of the deed by Mohanlal their main challenge being to his capacity as the karta of the family and his competence to alienate the undivided properties. In para 25 of the written statement the defendant No. 2 specifically pleaded that "the defendant No. 1 sustained heavy losses in wagering contracts of gold and silver in the year 1947. Hence in order to defraud the creditors of that wagering business if at all any mortgage deed was executed by the defendant No. 1 and the plaintiffs together for the property of the defendants, it is collusive, without any consideration and incorrect. Such a mortgage deed cannot produce any effect on my rights. " Defendant No. 2 Bhanwarlal denied the execution of the mortgage deed and particularly, emphasised that he did not present the deed for registration not he appeared before the Sub Registrar to admit the execution and thus hinted want of proper registration of the document. Both the defendants pleaded want of consideration and bar of limitation. They denied the allegations regarding the decline in the market value of the properties mortgaged but admitted receipt of notices and pleaded that they verbally informed the plaintiffs that there was no real mortgage transaction and they could file a false suit on their own responsibility. On the basis of these pleadings, the trial court framed the following issues - 1. Whether the defendants 2 and 3 constituted a joint Hindu family on 9-5-47. with defendant No. 1 as its Karta ? Ps. 2. (a) Was the mortgage deed Ex. 1 executed by defendant No. 2 ? Ps. (b) If so, was it without consideration ? D 2 3. (a) Whether defendant No. 1 Mohanlal borrowed from the plaintiffs a sum of Rs. 25,000/- on 9-5-1947 as Karta of the family for legal necessity and mortgaged the suit property with the plaintiff ? Ps. (b) If so. whether the mortgage deed Ex. 1 is collusive and without consideration and therefore not binding on the defendants 2 & 3 ? D-2 & 3. 4. If it is prayed that defendant No. 1 Mohanlal executed the mortgage deed in question, he being a coparcener only, is the whole of the mortgage deed invalid ? 5. Whether after the execution of the Mortgage deed the price of the mortgage property went on falling and therefore the plaintiffs are entitled to bring the present suit ? PS. 6. Is the plaint not properly stamped ? if so, what is its effect on the suit ? D. 2 & 3, 7. Whether the relief for the mortgage money and sale of property under the mortgage deed Ex. 1 in suit is within limitation ? Ps. 8. Is the registration of the mortgage deed not invalid against defendant No 2 because he had neither presented it no admitted its execution before the registering authority ? Ps. 8. (a) Whether the present suit is not maintainable in view of the nature of the mortgage deed on which it is based ? D. 2 & 3. 9. To what relief the parties are entitled ?
(3.) THE plaintiffs examined 12 witnesses and relied upon 19 documents in support of their case. THE defendants examined 1 witnesses and relied upon 107 documents to rebut the plaintiffs' claim. THE trial court after review of the entire evidence-oral and documentary-recorded findings on the various issues which may be detailed below. On issue No. 1 relating to the joint Hindu family of the defendants, the trial Court held that the defendants Mohanlal, Bhanwarlal and champalal constituted a joint Hindu family on the date of the execution of the mortgage deed and that Mohanlal defendant being the eldest member of the family was its Karta. The issue was decided in favour of the plaintiffs. Issue No. 2 (a) was decided in favour of the plaintiffs and it was held that the execution of the mortgage deed Ex. 1 by defendant No. 2 Bhanwarlal had been amply proved. The trial court discussed issue No. 2 (b), 3 (a) and 3 (b) together and held that the mortgage transaction was not collusive between the plaintiffs and the defendant Mohanlal As to the consideration for the mortgage, the trial court held that a sum of Rs. 10,963/- was due to the plaintiffs under the khatas Exs. 14 and 15 against the defendants and the discharge of the liability of the defendants under the khata was a part of the consideration of the mortgage deed in question. The trial court, however, held that the plaintiffs failed to prove that the amount of Rs. 14,037/-was paid in cash to the defendants on 15-5-47. The trial court thus held that the plaintiffs failed to prove consideration to the extent of Rs. 14,037/- Considering the question of legal necessity for the mortgage as embodied in issue No. 3 (a), the trial court held that the plaintiffs failed to prove the legal necessity of the mortgage in question in order to bind the defendant Champalal. Under issue No. 4 the trial court held that a co-parcener cannot alienate even his own interest in the coparcenary property without the consent of the other coparceners and the alienation being not for legal necessity, was void in its entirety. ;