Bennet, J.
1. This is a first appeal by certain defendants against a decree by a learned civil Judge in favour of the plaintiff on a simple mortgage deed. The family tree of the defendants is as follows:
HANUMAN SINGH
_________________________________|_____________________________________
| | |
Mahabal Singh (d. 1919)=Mt. Brijmangal Singh Sheo Mangal Singh
Lakshpati Kunwar (d. 1905) (defendant 1)
(defendant 7.) | |
Surajpal Singh (defendant 2.) |
_________________________________|______________________________ |
| | | | |
Sheopratap Singh Lal Pratab Singh Rudra Pratab Singh alias Har Pratab Singh |
(died issueless) (defendant 4.) Chhutaku (defendant 6.) (defendant 5.) |
_________________________________________________|
| |
Baramdin Singh Dharampal Singh (alive in 1931
now dead)=Mt. Sheonath Kunwar
2. The plaintiff sued on this mortgage executed by defendant 1, Sheo Mangal Singh and defendant 2, Surajpal Singh. It was also executed by Mt. Lakhpati Kunwar, the widow of Mahabal Singh, but in the plaint it was admitted that she was a widow of the joint family and had no right to the joint family property. Para. 3 of the plaint set out:
Defendants 1 to 6 are members of a Hindu joint family governed by the Mitakshara law. Defendants 1 and 2, as the heads of their joint family, executed the mortgage deed sued on for payment of the prior debts and for the valid necessities and the benefit of the joint family aforesaid and those necessities related to the payment of the arrears of revenue and the purchase and the protection of the property owing to which the mortgaged property is liable for payment of the amount of mortgage claimed.
3. The sum claimed under the mortgage was Rs. 80,000 and the property concerned was given in a lengthy appendix, Schedule A. A written statement was filed by defendants 4 to 6, Lai Pratab Singh, Har Pratab Singh and Rudra Pratab Singh alias Ohhutku Singh who were among the appellants and they are still minors. A written statement was also filed by Surajpal Singh, defendant 2, and by his cousin Baramdin Singh, defendant 3. Defendant 1, Sheo Mangal Singh did not contest the suit. Two preliminary points were argued in this appeal which we may briefly mention. One was that the document in question had not been proved to have been duly attested. The objection taken was that under Section 3, T.P. Act, it must be shown that the attesting witnesses signed the document in the presence of the executants and it was claimed that, on p. 17 this statement was lacking in the evidence of the attesting witness, Chauharja Singh. Another attesting witness, Ram Autar, also gave evidence on p. 19 and he stated, line 16:
The bond was read out and explained by Sitla Sahai, Patwari, and then the executants and attesting witnesses signed it.
4. We consider that this implies that the attesting witnesses signed in the presence of the executants and that the attestation was duly proved within the meaning of Section 3, T.P. Act. The next objection taken was that the registration was invalid. This objection was founded on the provision in the Registration Act, Section 34, that the persons executing the document must appear before the registration officer within the time allowed for presentation under Section 23, etc., that is four months from the date of execution. The endorsement of the Sub-Registrar on p. 92 shows that of the executants defendant 2, Thakur Surajpal Singh, appeared before him on 25th January 1921 and the Sub-Registrar on commission visited the village of Mt. Lakhpati Kunwar and obtained her admission of execution on 30th January 1921. Now, as regards this lady it is stated in the plaint para. 3 and admitted by the defendants that she had no right or title to transfer the property of the joint Hindu family and therefore her admission before the registration officer had no importance. Moreover, the registration officer attended her on a commission and the date of his doing so under Section 38 has no bearing on the provision in Section 34 which is for persons not exempt from appearing under that Section to appear before the Sub-Registrar. As regards Surajpal Singh, the argument is that the period of four months had expired on the date of his appearance, 25th January 1921. This argument is based on the assumption that the date of execution was 22nd September 1920 which is shown on p. 90, two lines from the bottom. This date no doubt is the date which was entered by the scribe when he drew up this mortgage deed. But the date is not written by any of the executants as the date on which execution took place. Moreover on page 87, line 43, it is stated in the document:
The sum of Rs. 522-8-0 has been taken as a loan on Miti Kuar Badi 12 of Sambat 1977, corresponding to 9th October 1920, for completion of the document and for other expenses.
5. Some details of this amount from the plaintiff's bahi khata are given on p. 33 of the judgment from line 2 onwards, including one amount of Rs. 10 given on 28th September. Prom this fact the Court below came to the conclusion : 'The correct date of the bond in suit appears to be 22nd October 1920' and that September was written by mistake for October. We consider that the bond was executed subsequent to the entry of the date of 9th October 1922 and therefore the appearance of Surajpal Singh on 25th January 1921 was within the four months allowed by Section 34, Registration Act. The registration therefore was in no way invalid. We now come to the main points in this case which are on the merits of the case for the plaintiff. The consideration in this mortgage deed has been set out by the Court below in its judgment on pp. 34 and 35 as follows:
The consideration of the bond in suit is Rupees 35,542-1-0, which is made up as below : (1) Pro-note for Rs. 4153 dated 30th October 1917, executed by Mahabal Singh. This pro-note was in lieu of previously executed pro-notes. (2) Rs. 461 borrowed on bahi khata on 22nd December 1918. The defendants' version in respect of these two debts is given in para. 9 of the written statement of defendants A to 6 and in para. 11 of the written statement of Surajpal Singh. Both these debts are definitely alleged to have been taken for immoral purposes. (3) Rs. 2756-5-9 is alleged to have been due as mortgage money from Raghubar and Ram Adhin Kurmis in respect of the property in the village of Jitpur on account of the mortgage deed of 26th September 1916, which property was purchased on 3rd September 1917, by Sheo Mangal Singh and which enoumbrance had to be discharged by Sheo Mangal Singh and his brothers to save the property. (4) Rs. 8500 borrowed by Mahabal Singh and Sheo Mangal Singh on a pro-note dated 14th March 1919. (5) Rs. 2500 borrowed by Mahabal Singh and Sheo Mangal Singh under a pro-note, dated 20th March 1919. (6) Rs. 500 borrowed by Mahabal Singh alone on a pro-note, dated 24th March 1919. (7) Rs. 2000 borrowed by Shoo Mangal Singh alone on the pro-note, dated 15th April 1919. (8) Rs. 10,000 borrowed by Sheo Mangal Singh alone on a pro-note, dated 12th June 1919. (9) Rs. 1000 borrowed on a pro-note, dated 7th February 1920. by Sheo Mangal Singh alone. (10) Rs. 522-8-0 paid cash for expenses of execution and registration of the mortgage bond in suit.
6. The Court below has disallowed the first two items, not on the ground that they were taken for an immoral purpose but on the ground that these were debts incurred by Mahabal Singh who had died in 1919 and who was not an executant of the mortgage bond of October 1920 and none of the defendants or executants are the descendants of Mahabal Singh. No cross-objection has bee a framed against this dismissal of the claim on items 1 and 2. We may mention here that a cross-objection has been filed but it purports to be merely in regard to the property which would be liable under the decree as granted by the Court below and learned Counsel for the respondents did not address us in support of this cross-objection and we therefore dismiss it with costs. Item 3 arises as follows : On p. 53 there is a sale deed dated 3rd September 1917 to defendant 1 of an eight anna share in mauza Jitpur. On this property there was a prior mortgage existing in favour of the plaintiff which is a society called the Panchaiti Akhara, and this suit is brought through a person styled a mahant. On p. 21, line 35, Dharam Das states that he is secretary of the plaintiff and that the plaintiff has money lending business of 10 lacs. The plaintiff is therefore a money lending concern in a large way. The mortgage on p. 49 with which this property was incumbered was for Rs. 1950 executed by two persons, the former owners, Raghubar and Ram Adhin. These persons sold this property to defendant 1, Sheo Mangal, for a sum of Rs. 2600 and of this Sheo Mangal was only able to produce Rs. 400 as cash and he undertook to pay off the mortgage debt of Rs. 2200 to which it amounted on the date of sale. Now apparently Sheo Mangal as the manager of this joint Hindu family had not got the money to pay off this debt and he waited for three years and then included the item which by that time amounted to Rs. 2756-5-9 in the mortgage deed in question affecting the joint family ancestral property. The Court below has held on p. 35, line 43, 'it must therefore be held that the payment of this amount was for the benefit of the family estate.' Now it is to be noted that there was no personal obligation on Sheo Mangal to pay the amount of this mortgage of the share in Jitpur. The personal obligation had originally been on Raghubar and Ram Adhin. But their vendee was not bound by such a personal covenant. In October 1920 it was open to Sheo Mangal to allow this property in Jitpur to be sold for the mortgage debt and the ancestral property of the family would not have been affected. Instead of allowing it to be sold, he encumbered the joint family property with this liability and it has not been shown to us that there was the smallest chance of the family ever being able to pay off this amount.
7. We do not think that from any point of view it can be said to be beneficial to a joint Hindu family for the manager to purchase property for which the family is unable to pay and when the family is unable to pay, it is certainly not for the benefit of the family that a liability should be cast upon the joint family ancestral property. The transaction, in our opinion, was one which was decidedly not for the benefit of the joint family estate and no manager with the smallest business ability would have entered into such a transaction. In our view the manager of a joint Hindu family is bound to enter into transactions in accordance with Hindu law and this transaction was certainly not one of that nature. We shall return to this point later, but at present we summarize the different transactions. The transactions 4 to 8 are five promissory notes all for loans admittedly taken for the purpose of advancing money on loan to Rudra Pratab Singh, who was the son of the sister of Sheo Mangal Singh. On p. 21, line 40, P.W. Dharam Das states:
Rupees 8500 were borrowed on a pro-note to save the property of Rudra Pratab Singh, his sister's son, whose property had been put up for auction sale. If another man had purchased it, he would not have returned it and so Mahabal Singh purchased; again said Sheo Mangal Singh purchased it so that when the price is paid to him, he might restore the purchased property to Rudra Pratab Singh. Four other pro-notes executed by Mahabal Singh and Sheo Mangal were executed to pay money to Rudra Pratab Singh.
8. Now the total of these borrowings amounts to Rs. 23,500 and the amounts were borrowed within three months, between 14th March and 12th June 1919. The reasons given by P.W. Dharam Das, secretary of the plaintiff, about Sheo Mangal Singh purchasing the property are incorrect as ha did not purchase it at that period and there was no question of his restoring the property to Rudra Pratab Singh. The lower Court has stated on page 36, line 21: 'it appears Mahabal Singh and Sheo Mangal Singh were after the property of their relative, Rudra Pratab Singh.' A further point is put forward in the judgment, viz. that the loans in the promissory notes were borrowed at 10 annas per cent, per mensem and the advances to Rudra Pratab Singh were made at Re. 1-8-0 per cent, per mensem. But one of the loans was made on no interest at all. On the one hand, it is sought to justify this transaction as one which was for the benefit of the joint Hindu family and on the other hand the Court below has stated on p. 36, line 15:
Admittedly Rudra Pratab Singh was heavily indebted and his property had been put up for auction sale. It was to save the property of a relative that the loans in Items 4 to 8 were borrowed.
9. We find it difficult to hold that either view is correct. In any case the saving of the property of Rudra Pratab Singh is not purpose which could be legal necessity for a joint Hindu family because Rudra Pratab Singh was the son of a sister and he belonged to another family and his property was not connected with the family of the defendants. As regards the theory that the transaction of advancing this large sum of money was for the benefit of the joint family estate, the following facts may be considered. Rudra Pratab Singh was a person whose property was put up for sale and he was unable to save it. The money was used apparently for that purpose and for a short time the evil day was postponed. But it is shown by a judgment Ex. H on p. 131 that on 7th October 1914 there was a registered mortgage deed on the estate of the minor Rudra Pratab Singh which amounted to Rs. 26,520 as decreed on 2nd May 1927 on p. 134. This mortgage was existing when the loans on the promissory notes in 1919 were incurred. It was therefore a very highly speculative transaction to advance loans to a man who was in the position of Rudra Pratab Singh. As regards the argument that the money was advanced at a higher rate of interest than the rate charged by the plaintiff from the defendants, there is the point that the chance of recovering the money from Rudra Pratab Singh was extremely small. No money was actually paid back by Rudra Pratab Singh on these loans. We do not consider that the subsequent history of this loan transaction is really of much value on the question as to whether the advancing of the loan was a prudent transaction for the manager of a joint Hindu family. But as the Court below has gone into this matter, we may allude to it briefly. On p. 95 there is a suit No. 115 of 1920 brought by defendants 1 and 2 Sheo Mangal Singh and Surajpal Singh, against Rudra Pratab Singh and another on promissory note of 17th April 1919 for Rs. 4350 which corresponded to a part of Items 5, 6 and 7 and for a promissory note of Rs. 10,000 dated 10th June 1919 which corresponded to Item 8. A decree was obtained for these sums totalling Rs. 16,490-11.9 on 25th November 1920. As the promissory note for Rs. 4350 did not provide any interest the Court allowed 8 annas per cent, per mensem. But it might not have allowed anything.
10. It is admitted that the execution proceeding on p. 115 relates to this decree, although the number of the decree is not given on that page. The decree-holders put the property of Rudra Pratab Singh up to sale for the nominal amount of the decree which had by that time increased to Rs. 22,836-4-9 and the decree-holder bought it for that amount. It is not stated that anyone else made bid. It cannot therefore be assumed that the value of the property purchased was equal to the amount of the decree. The property was subject to a mortgage and on p. 131 the mortgagee, Mt. Thakurain Nalni, brought a suit No. 69 of 1926 and obtained a decree, and on p. 135 is the sale proclamation. It is admitted that the property was sold and defendants 1 and 2 lost the rights they had acquired to the equity of redemption by their auction purchase on page 115. The result therefore was that so far as Items 5, 6, 7 and 8 are concerned, defendants 1 and 2 purchased some property in an execution sale which was heavily encumbered and on a decree the property was sold and nothing remained to these defendants. Therefore those defendants obtained nothing for the loans advanced in these Items 5, 6, 7 and 8. Item 4 was a more successful transaction for these defendants. Nothing was paid by Rudra Pratab out of the Rs. 8500 advanced to him on 16th March 1919. On p. 93 there is the judgment of a suit No. 116 of 1920 brought by defendants 1 and 2 against Rudra Pratab Singh. They obtained a decree for Rs. 10,620-14-0 on 25th November 1920 and the following amounts were obtained in execution:
Page Amount Date117 Rs. 3400 17-10-1925119 Rs. 2200 15-10-1925125 Rs. 14,558-13-0 14-12-1925
of which Rs. 14,361 was actually received by the decree-holder on 8th January 1926 as shown on p. 127.
11. The total therefore actually recovered by the decree-holder was Rs. 18,961. This was in lieu of Item 4, Rs. 8500. No doubt this does appear to be a successful transaction but it must be observed that the recoveries were made a number of years after the loan in 1919. To advance this loan defendants 1 and 2 had to borrow money from the plaintiff and by the time the recoveries had been made the interest on the amount advanced by the plaintiff for this item had also reached a considerable total. In any case we consider that these different transactions 4 to 8 should be regarded as a whole and from that view the actual recovery in the year 1925 of Rs. 19,961 must be considered with the advance in 1919 of Rs. 23,500. The amount advanced therefore was not fully recovered and the amount advanced carried interest at the rate of ten annas per cent, per mensem compoundable yearly in the mortgage deed. The joint family therefore lost heavily by this transaction. We consider that it was bound to lose from the beginning and a consideration of the circumstances in 1919 should have shown to the adult members of the joint family that there was no prospect of the recovery of the amounts advanced to Rudra Pratab Singh, a person who was hopelessly in debt and whose property was heavily encumbered. We do not agree therefore with the Court below that these items were for the benefit of the family estate. As regards the remaining Item 9, Rs. 1000 on a promissory note of 7th February 1920, this was stated to have been taken for payment of land revenue and learned Counsel for the appellants does not challenge this item. Item 10 is in regard to the expenses of execution and registration and the disposal of this item will follow the decision of the other items.
12. The case for the plaintiff has been expressed by learned Counsel for the plaintiff-respondent on the point of law in the following manner: In the pedigree already quoted, in 1920 the family consisted of defendant 1, Sheo Mangal Singh, and his two sons Baramdin Singh, defendant 3, and Dharampal Singh who was then alive, as is shown by a notice of plaintiff on page 143 of 1931. There was also defendant 2, Surajpal Singh, and admittedly none of his sons Lal Pratap Singh, defendant 4, Rudra Pratap Singh, defendant 6, and Har Pratap Singh, defendant 5, were then in existence but they were born subsequently. For the plaintiff it is argued that as Sheo Mangal Singh incurred Items 4, 5, 7 and 8 on promissory notes in 1919 these items constituted antecedent debts of the father and therefore Baramdin Singh, defendant 3, cannot challenge that antecedent debt except on the ground of an immoral purpose which is not alleged. As regards defendants 4, 5 and 6 it is argued that they were born subsequent to the mortgage transaction of 1920 and therefore they cannot challenge that transaction because their father Surajpal Singh was an executant and they cannot raise the question of legal necessity the document having been executed by the adult members of the joint Hindu family then alive. On behalf of the minor defendants the plea was put forward that Sheo Pratap Singh, the son of Surajpal Singh, was alive at the time of the mortgage in October 1920. It was accordingly argued for the defendants that because Sheo Pratap Singh was alive in October 1920 at the time of the mortgage and was a minor, therefore the question of legal necessity for the mortgage deed can be raised now by minor defendants 4 to 6. This point formed the subject of argument before the lower Court and the lower Court came to the conclusion that no son of Surajpal Singh was living at the time of the execution of the mortgage bond in suit. The reason given by the Court below is that Suraj Pal Singh had given his testimony on the point but he was an interested person and although a register of birth was produced to show that a son was born to Surajpal Singh in 1918, still the register of death was not produced by Surajpal Singh and the Court held that it should have been produced and in default of its production the Court held that if produced it would have shown the death of this son before 1920 and therefore the Court held that no son was living in October 1920. Now the facts are that no definite claim was put forward by the plaintiff in the plaint or at the time of issues to the effect that there was no son of Surajpal Singh at the time of the execution of the mortgage deed in 1920. The matter therefore did not form the subject of any issue. On p. 61 there is the birth certificate showing that in the village in question, Jamnipur, there had been a son born on 8th or 18th August 1918 to Chhedit Singh, which is another name for defendant 2, Surajpal Singh, as is shown in the plaint. That certificate was filed on behalf of the defendants on 20th July 1933. Evidence in the case was produced before the Court in 1934. It is clear therefore that the plaintiff had ample time in which to consider this matter and if the plaintiff desired ho could easily have obtained copies of the death register of this village for the years in question, 1918 and following years. The plaintiff did not produce any such copy or register. In evidence Surajpal Singh stated (p. 29, lines 30 to 34):
One son had been born to me at the time I signed the mortgage, bond in suit. That son died after these or four years. I have three existing sons now, aged 11J years, eight years and four years. When my first son, whose name was Sheo Pratap, died, I had a son, Lal Pratap, living. Lal Pratap was seven months old when Sheo Pratap died. Now Lal Pratap is 11 1/2 years old.
13. No question was asked to Surajpal Singh in cross-examination in regard to the death of this son Sheo Pratap. The only question to which learned Counsel for respondent can point is that to which the answer appears on p. 30, line 40: 'I don't know the date of the birth of any of my sons.' Therefore so far as the evidence was concerned, no suggestion was made in cross-examination that the statement of Surajpal Singh was incorrect when he said that his son Sheo Pratap was born before the mortgage deed and died after the birth of his son Lal Pratap, defendant 4. A certain amount of argument has been made in regard to this evidence. We do not think that there is sufficient reason to reject this evidence of Surajpal Singh which could have been challenged quite easily by the plaintiff in cross-examination, and by the production of the death certificate of this boy Sheo Pratap. Some argument has been made in regard to the burden of proof and on behalf of the plaintiff-respondent learned Counsel contended that the burden of proof lay on the minor defendants to show the date of death of this brother, Sheo Pratap Singh. Now, the right of a minor member of a joint Hindu family is to challenge a transaction by the adult members which was not for legal necessity. None of the loans in question were loans taken by defendant 2, Surajpal Singh, the father of the minor defendants 4 to 6, and there was no question, as regards these minor defendants, of antecedent debt of their father. On behalf of these minor defendants their right is asserted to challenge these transactions on the ground that they were not for legal necessity. It has been proved on their behalf that a brother was born at a period, in 1918, prior to the execution of the mortgage deed in question in 1920. We think that under these circumstances the defendants have discharged the burden of proof which lay on them and that the burden then lay on the plaintiff to show that this minor boy, Sheo Pratap Singh, born in 1918, had died before the execution of the mortgage deed two years later in 1920. In this connexion we may refer to the provisions of Section 114, Evidence Act, which lays down an Illus. (d) that the Court may presume
that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence.
14. This presumption is one which is refer, red to in various books on evidence, such as Phipson on Evidence, 7th Edn., p. 101, where it is stated:
Previous existence. The presumption from previous existence has been held to apply to human life, Lapsley v. Grierson (1848) 1 H.C.L. 498, In Re Phenue's Trusts (1870) 5 Ch. 139 and Reg v. Lumley (1869) 1 C.C. 196, in which cases it was held that though there was no presumption of law as to the continuance of life, an inference of fact might legitimately be drawn that a person alive and in health at a certain time was alive a short time after, while in Reg v. Wiltshire (1881) 6 Q.B.D. 366 and Reg v. Thomas Jones (1883) 15 Cox C.C. 284 this doctrine was further extended as proof that 4 was alive in a certain year being held evidence that A was alive respectively 11 and 17 years later.
15. Certain Indian rulings were also referred to, Ramachandra Sadashiv v. Keshav Dhondu (1923) 10 A.I.R. Bom. 208 in which it was stated that the decisions also establish that there is no presumption as to whether a particular person was dead at any time within the period in question, the period being that of Sections 107 and 108, Evidence Act. The same point has been held in Veeramma v. Chenna Reddi (1914) 1 A.I.R. Mad. 505 and Fani Bhushan Banerji v. Surjya Kanta (1908) 35 Cal. 25. This has also been laid down in Muhammad Sharif v. Bande Ali (1912) 34 All. 36. We think that applying those rulings to the present case it may fairly be said that where the plaintiff desires that the minor defendants should be deprived of their right of challenging these transactions on the ground of want of legal necessity, then the plaintiff should show that the infant son born to Surajpal Singh in 1918 had died by the time of execution of the mortgage deed in question in 1920. Another point which occurs to us in this connexion is that granting that a minor born after the execution of the mortgage where there was no minor existing at the time of execution cannot raise the question of want of legal necessity, it cannot be said that in a case like the present this rule will apply where the Court below has held that the mortgage transaction may be validly challenged in regard to Items 1 and 2 and no cross-objection or appeal has been taken by the plaintiff against that decision. It appears to us that where it is already held by the Court below that the mortgage transaction can be reopened it is difficult to say that the rule enunciated above will apply. The examples where the rule had been applied are cases where it has been held that the mortgage transaction cannot be reopened at all, but where it can be reopened in one part it is difficult to show ground why it should not be reopened in another part. No authority has been shown to us on behalf of the plaintiff-respondent for such a proposition.
16. Another point argued in regard to this question of the existence of a minor son, Sheo Pratap Singh, in 1920 was that learned Counsel for the plaintiff argued that the evidence of Surajpal Singh should not be accepted where he states that this boy survived until the birth of defendant 4 and learned Counsel proceeded to state that if that boy Sheo Pratap Singh did not survive until the birth of one of the existing minors, then the existing minors could not challenge this mortgage deed on the ground of want of legal necessity. This proposition is no doubt laid down in a ruling of the Madras High Court in Visweswara Rao v. Surya Rao : AIR1936Mad440 in which it is laid down that there must be no gap between the death of one minor and the birth of the existing minors. Such a proposition has never been laid down by their Lordships of the Privy Council or by the Allahabad High Court. It is true that in Sita Ram Singh v. Cheddi Singh (1924) 11 A.I.R. 798 the question of such a case where there is such a gap has been considered, but this was only from the point of view of limitation which is quite a different question, and it was held that the birth of another minor would not give a fresh start for limitation. No question of limitation arises in the present case. For the appellants, Mr. Banerji relied on a ruling, Chiranji Lal v. Bankey Lal : AIR1933All273 . In this it was held that the question whether a debt is antecedent or not arises only when the father makes a transfer. It is the privilege of the father alone to burden the family estate by mortgage for discharging an antecedent debt which must be a debt of his own. A manager of the family who is not the father cannot bind the estate merely by discharging a pre-existing debt of the family. Now as regards defendants 4 to 6 minors, their father, defendant 2 Surajpal Singh, was no doubt one of the executants of the mortgage but none of the promissory notes in question was executed by him and therefore the promissory notes were not for debts of Surajpal Singh. The ruling therefore would apply in the case of these defendants 4 to 6 and would entitle them to raise this question of want of legal necessity.
17. Another point which has been advanced on behalf of the appellants minors generally is that these promissory note transactions of 1919 were not in fact independent of the mortgage deed of 1920. In Brij Narain v. Mangala Prasad (1924) 11 A.I.R. P.C. 50 their Lordships of the Privy Council laid down in their proposition 4:
Antecedent debt means antecedent in fact as well as in time, that is to say that the debt must be truly independent and not part of the transaction impeached.
18. The defence produced a witness Surajdin on page 25 who stated:
15 years ago I went with Sheo Mangal and Mahabal to the house of the plaintiff. In my presence Rs. 8500 were borrowed from the plaintiff. Both said they would execute a mortgage for that loan. The plaintiff paid out Rs. 8500 on condition that a mortgage deed would be executed later. Tho loan was taken to give it to Rudra Pratab Singh.
18. This was the first of the loan transactions in question on promissory notes. No doubt P.W. Dharam Das, the secretary of the plaintiff, has denied on page 23, line 4 that there was any suggestion of a mortgage. He stated : 'As he was a reliable man J did not suggest to him to mortgage his property.' Now no reason is given as to why in the following year the witness changed his mind and got a mortgage executed. The amount advanced, Rs. 23,500 was a very considerable amount to advance on promissory notes and it is admitted by Dharam Das that he knew the money was to be advanced by the defendants to save tho property of Rudra Pratab Singh. It must have been clear to Dharam Das that tho defendants had very little chance of getting this money back from Rudra Pratab Singh and in fact the defendants never did got the whole of it back and a part was only obtained with difficulty after the lapse of a number of years. It seems to us impossible that the plaintiff did not intend that there should be a mortgage for these loans and we consider that from the very beginning the plaintiff intended that there should be such a mortgage and that the time was allowed to elapse merely with a view to obtaining some advantage from the law of antecedent debt. We think therefore that it cannot be said in the present case that the transactions were independent of the mortgage deed in question. Now, coming to the question of legal necessity, it has been argued on behalf of the respondent plaintiff that the defendants were a money lending family and reliance is placed on a statement of the witness for the plaintiff, Ram Autar, on p. 19, line 39: 'Sheo Mangal did some money lending and advancing grain business.' This statement is made in cross-examination and the witness has not specified the persons to whom the money was lent. It is possible that the witness had in mind the transaction between Sheo Mangal and his sister's son by which these different sums of money were lent. There was also a statement to which our attention has been invited by defendant 2 Surajpal Singh on p. 30, line 4: 'Last year I advanced a loan of Rs. 4000 to Ram Ablakh on mortgage of property.' But the witness corrected his statement at line 9 by saying : 'I had not advanced the loan on mortgage for Rs. 4000 to Earn Ablakh but had purchased his property for Rs. 4000 a year ago.' We are satisfied from the evidence on the record that this family of the defendants was not a money-lending family but a family of zamindars and that the adult members of this family had no capacity for money lending and no knowledge of that business. On the other hand, the plaintiff was a society which lent money to the extent of 10 lakhs and the plaintiff society is in the hands of persons who are well up in the law on the subject. For example on p. 143 we find that in the notice of 10th March 1931 on behalf of the plaintiff Dharam Das, the secretary, put down the ages of the sons of Surajpal as follows : Lai Partap Singh alias Chote Singh, nine years, Rudra Pratab Singh, six years, Bachcha Singh, one and a half year.
19. The plaint was filed almost two years later on 8th February 1933, but instead of being two years older these children had become younger as in the plaint Lal Pratap Singh is put down as seven years, Har Pratap Singh as five years and Chotaku Singh as two years. It is obvious that when the plaint was filed an endeavour was made to show that these children were much younger, the object being to show that they could not have been alive at the time of the mortgage deed in 1920. A sharp practice of this nature indicates the legal acuteness of the agent of the plaintiff. We think therefore that on the one side there was a clever money-lending society and on the other there was a zamindar family devoid of skill in money matters. We think that the transactions into which the adult members of this family entered were certainly not for legal necessity or for the benefit of the family. They were in our view transactions which were highly speculative and in no sense inspired by legal necessity. Some argument has been addressed to us that the promissory notes executed by defendant 1 might have formed the basis of a suit by the plaintiff against defendant 1 and that in execution of a decree HO obtained the right and interest of defendant 1 in the joint family property could bo put up for sale. This possibility however does not in our view entitle defendant 1 as manager of a joint Hindu family to mortgage the whole joint family property for such a liability which was a personal one of his own. We think therefore that it has been established that the minor defendants are entitled to challenge these transactions and that it has been shown that they were not transactions for illegal necessity or for such antecedent debt as would be binding on the members of this joint family. In our view therefore the Court below was incorrect in upholding items 4, 5, 6, 7 and 8 and we hold that these items cannot form the subject of a decree on the mortgage in question and we therefore allow the appeal as regards these items. As regards item 3, this item is valid so far as it is an encumbrance on the eight annas share in mahal Diragaj Singh, Mauza Jaitpur which was purchased on p. 53. That item of property forms part of the claim in the plaint on p. 4, item 10 where the share is a larger one of ten annas three pies, apparently two annas three pies being joint family property and eight annas share being the share which was acquired by the purchase on p. 53. We hold therefore that the amount of this item of Rs. 2756-5-9 and interest thereon at the contractual rate may form a mortgage decree which we grant only on the eight annas share in mahal Diragaj Singh, Mauza Jaitpur and not against the joint family property. As regards item 10 the expenses, Rs. 522-8-0 for execution and registration, we consider it in the following manner: The total consideration in the mortgage bond was Rs. 35,542-1-0 and the amount which we allow on item 3 is Rupees 2756-5.9 and on item 9 Rs. 1000: total Rs. 3756. This is roughly one-tenth of the amount claimed and there is also the point that the incidence of the mortgage has been reduced to Jaitpur as regards item 3. We therefore allow Rs. 50 out of Item 10.
20. The decree therefore will be for Item 9--Rs. 1000 and Rs. 50 out of Item 10. These two sums with interest will form a preliminary mortgage decree against the whole' joint family property. Item 3, Rs. 2756-5-9, will form a preliminary mortgage decree against the eight annas share in mahal Diragaj Singh of Mauza Jaitpur only. We direct that a preliminary mortgage decree shall be drawn up to this effect and we set aside the decree of the Court below. The period for payment will be six months under Order 34, Rule 4. As the appeal of the appellants has succeeded to the extent of nine-tenths, we allow the appellants nine-tenths of the costs of the appeal in this Court and nine-tenths of their costs in the Court below. The plaintiff-respondent will receive one-tenth of his costs in each Court. As stated above, the cross-objection of the plaintiff is dismissed with costs. So far as the costs of the plaintiff are concerned they will form part of the mortgage-decree which we have granted him.