DEBILAL KHANDELWAL Vs. DAMODAR DAS KHANDELWAL ALIAS GULAB BABU

JUDGEMENT

(1.) This appeal by defendants 1 to 3 arises out of a suit to enforce a simple mortgage bond dated the 18th April, 1949 executed by defendant No. 1 (Debilal) and his son Prahlad Rai (defendant No. 2) for Rs. 12,500 in respect of a house situated in Mohalla Chowk Bazaza in the town of Gaya. The stipulated rate of interest in the mortgage bond was 15 per cent per annum, but the plaintiff in whose favour the bend was executed, claimed interest at the rate of 9 per cent per annum only. The due date of payment of the mortgage dues was the 30th Ashwin 1357 Fasli, corresponding to the 20th September, 1951. Defendant No. 3 Is the minor son of defendant No. 2 and defendant No. 4 Is the subsequent mortgagee. The suit was instituted on the 7th September, 1955, that is, within six years of the due date of payment, but beyond three from that date.

(2.) The case of the plaintiff-respondent was that the joint family of the defendants-appellants owned and possessed the major shares of the South Bihar Transport Trading. Company Limited, and the defendants, with a view to own the entire business, took the aforesaid mortgage loan for purchasing the remaining shares and thus converted the Limited Company into 3 joint business, solely for the benefit of the joint family and also to liquidate the loan taken for justifying the necessities.

(3.) The defence of the appellants was that only Rs. 4,912/12/6 out of Rs. 12,500/- was paid by the mortgagee to the mortgagors and that the motor business for which the loan is said to have been advanced was speculative on the date and the loan was neither for legal necessity nor for the benefit to the estate of the joint family of the appellants. Another plea was that the registration of the mortgage bond was invalid and, therefore, no mortgage decree could be passed. The last plea was that on account of the invalidity of the registration of the mortgage bond, there can be no money decree either, because the suit was instituted more than three years after the due date.