BAPNA, J. - (1.) THIS is a second appeal by the plaintiffs in a declaratory suit.
(2.) RESPONDENT No. 1 Chhagan Lal obtained a money decree on the basis of a mortgage -deed executed by Ladurara against his son and legal representative Gangadhar. When the decree was put in execution and the mortgage property was attached, the appellants Sohan Lal and Gokalchand, minor sons of Gangadhar, Mst. Mooli, widow of Kushalchand, and Mst Ganpati, widow of Ladu Ram, instituted a suit for declaration that the house property attached was joint Hindu family property and not liable to be sold in execution of the decree, which was for the enforcement of a mortgage, as the said mortgage was not binding on the members of the family. The trial Court, after evidence, decreed the suit, but on appeal that judgment was set aside. It was held by the first appellate Court that the mortgage had been effected for an antecedent debt by the manager of the joint Hindu family and further the plea of want of legal necessity was barred on the principle of res judicata. The appeal was accordingly allowed and the suit was dismissed. The plaintiffs have come in second appeal. Ladu Ram and his son Gangadhar obtained a loan of Rs. 4300/ - from Chhagan Lal and Bhonrilal at Calcutta on 15 -4 -1936, in terms of an agreement of the same date that the loan was taken on security of their house property at Sikar. The receipt Ex. D -l was executed by both Ladhuram and Gangadhar. The mortgage -deed Was executed on 18 -9 -1936, at Sikar by Laduram alone mentioning the fact that Laduram and his son Gangadhar had obtained the loan on 5 -4 -1936, at Calcutta, and had agreed to mortgage their house property at Sikar, and that the mortgage -deed was being executed in pursuance of that agreement by Laduram as manager of the joint Hindu family in respect of their house at Sikar so that Rs. 2700/ - were payable to Chhagan Lal and Rs. 1600/ - to Bhonrilal, and authorising each one of them to institute a suit separately in case the amount was not repaid within 5 years. The house property was one -third share in the Haveli and two Nonras situated at Sikar, MOhalla Mudhoganj. Chhagan Lal instituted the suit to recover the mortgage -money of Rs. 2700/ -with interest thereon in the Court of Sub -Judge, Sikar, against Gangadhar as the heir and legal representative of Laduram (Suit No. 128 of 1943 -44): It appears from a perusal of the copy of the judgment that Gangadhar took a plea that the loan was not for legal necessity. The finding of the Court was that the mortgage deed contained a recital that the money was borrowed for the expenses of the joint family, and that the allegation of Gangadhar that he had no knowledge of the transaction was untrue, because the receipt, which preceded the mortgage, was admittedly signed by him. It was held that the vague suggestion of the defendant that the money may have been taken by Laduram for speculation was not substantiated. The Court, therefore, held that the amount of Rs. 2700/ - Was borrowed for legal necessity, and the issue was decided against Gangadhar. The Court gave a decree for Rs. 3500/ - with costs to be paid by the defendant within six months of the date of the decree, namely, 7 -8 -1945.
(3.) THE present suit was instituted on 7 -7 -1947. The relationship of the plaintiffs and Gangadhar will be evident from the following genealogical table: Kushalchand = Widow Mst. mooli | Laduram = Widow Mst. Ganpati | Gangadhar _______|____________ | | Sohanlal Gokulchand. ;