JUDGMENT Iqbal Ahmad, J.
1. This is a defendant's appeal and arises out of a suit for sale on a mortgage dated 2nd July of 1926, executed by Mata Prasad Singh, the father of Durga Prasad Singh, appellant, in favour of the plaintiff, respondent for a sum of Rs. 750. The mortgage money was made up of the following items : (I) Rs. 234-7-3 left with the mortgagee for payment of a debt due on the basis of a mortgage-deed dated 23rd September 1921, executed by the father and uncle of Mata Prasad, (2) Rs. 99-9-0 left with the mortgagee for payment of another debt due from Mata Prasad, (3) Rs. 113-15-9 left with the mortgagee for payment to one Ram Narain to whom the amount was due on account of arrears of rent and certain other debts advanced by him to Mata Prasad, (4) Rs. 35 for the cost of the stamp and expenses of registration of the mortgage.deed in suit and for household expenses, (5) Rs. 275 paid in cash at the time of registration for payment of a debt due to Shiva Babu Singh from Mata Prasad.
2. The second item mentioned above, viz. Rs. 99-9-0, was admittedly not paid by the plaintiff-respondent and the claim was for the balance of the principal amount, viz., Rs. 658-7-0, and interest. The property mortgaged was the joint family property of Mata Prasad and Durga Prasad appellant. Both Mata Prasad and Durga Prasad were arrayed as defendants to the suit. The plaintiff-respondent alleged thafe Mata Prasad executed the mortgage-deed for family necessity. Mata Prasad did not contest the suit and an ex parte simple money decree for the whole amount claimed was passed against him by the trial Court. Durga Prasad, appellant, contested the suit. He denied the execution of the mortgage bond and put the plaintiff-respondent to proof of the alleged necessity for the loan secured by the mortgage. The trial Court held that legal necessity was established with respect to items 1 and 3 mentioned above. It also held that out of item 4, viz., Rs. 35, a sum of Rs. 20 was required for the cost of the stamp and registration expenses of the bond in suit. As regards the balance of Rs. 15, it was of the opinion that legal necessity for the same was not established. It further held that legal necessity for the sum of Rs. 275 paid to the mortgagor at the time of registration of the deed in suit for payment of Shiva Babu Singh was not proved. In short the trial Court held that legal necessity was proved with respect to a sum of rupees 368-7-0 only and passed a decree for sale of the mortgaged property with respect to that amount with interest.
3. Durga Prasad filed an appeal in the lower appellate Court and arrayed both the plaintiff-respondent and Mata Prasad as respondents to the appeal. The plaintiff-respondent filed a cross-objection urging that the whole of the mortgage money was borrowed by Mata Prasad for legal necessity, and that his claim for sale of the mortgage property ought to have been decreed with respect to the entire amount claimed. Mata Prasad died during the pendency of the appeal in the lower appellate Court. The learned Judge of tho lower appellate Court held that the entire amount secured by the mortgage-deed in suit was borrowed by Mata Prasad for legal necessity, and, accordingly, dismissed the appeal filed by Durga Prasad and allowed the cross-objection filed by the plaintiff-respondent, with the re-suit that a decree for sale with respect to the entire amount claimed by the plaintiff-respondent was passed in his favour. Durga Prasad has come up in second appeal to this Court. The Learned Counsel for Durga Prasad has taken exception to the finding of the lower appellate Court as regards items 1 and 5 of the mortgage-debt and has contended that legal necessity for the same was not proved. He also has assailed the finding of the lower appellate Court as regards the sum of Rs. 15 out of item 4 that, according to the recital in the mortgage-deed, was borrowed by Mata Prasad for household expenses.
4. The amount of Rs. 234-7-3 was admittedly left with the mortgagee for the payment of a debt due on the basis of an unregistered mortgage-deed dated 23rd September 1921, executed by the father and uncle of Mata Prasad. The mortgagee of 1921 had filed a suit for the recovery of the debt due to him, and the sum of Rs. 234-7-3 was paid to him by the plaintiff-respondent during the pendency of that suit. It was contended on hehalf of the defendant-appellant in the trial Court that, as the mortgage-deed of 1921 was unregistered, it could only operate as a simple money bond and, as the date fixed for the payment of the debt was 29th June 1923, the debt of 1921 became time-barred after 29th June 1926. Accordingly it was argued in that Court that on 2nd July 1926, the date on which the mortgage-deed in suit was executed, the debt of 1921 was time-barred. This contention of the defendant-appellant was overruled by the trial Court and the point does not appear to have been argued on behalf of the defendant-appellant in the lower appellate Court. In appeal before us however the Learned Counsel for the appellant has reiterated the contention, but in our opinion the contention is without force. The time for the recovery of the debt of 1921 would undoubtedly have expired on 29th June 1926, but as we have already stated, a suit for the recovery of the debt was filed before the execution of the mortgage-deed in suit. The Learned Counsel suggests that it is possible that the suit on the basis of the deed of 1921 may have been filed after 29th June 1926, and it is on that assumption that he contends that the debt of 1921 was time-barred. This argument of the Learned Counsel is beset with a number of assumptions which are not justified by any materials upon the record. The mortgage-deed in suit was executed within three days of 29th June 1926, and there is no warrant for the assumption that the suit for the recovery of the debt of 1921 was not filed before 29th June 1926, and was filed after 29th June 1926, and before 2nd July 1926. If it was a fact that the suit for the recovery of the debt of 1921 was not filed within time, the point would certainly have been pressed on behalf of the defendant-appellant in the lower appellate Court, but, as already observed, it was not.
5. The Learned Counsel for the appellant has placed no materials before us to justify his assertion that the finding of the trial Court with respect to item 1 was erroneous and we must, therefore accept that finding. As regards item 5, viz., Rs. 275, the lower appellate Court held that the amount was paid to Shiva Babu Singh and was borrowed by the mortgagor for legal necessity. It is argued by the Learned Counsel that, in the absence of a definite finding to the effect that the amount was due to Shiva Babu Singh, the lower appellate Court was not justified in holding that legal necessity with respect to this amount had been made out. We are unable to agree with the contention of the Learned Counsel. The lower appellate Court held that "this sum was also an antecedent debt" and this finding necessarily involves a finding that the amount was due to Shiva Babu Singh from Mata Prasad, and, as such, constituted an antecedent debt, which the defendant-appellant was under a pious obligation to pay. Out of the sum of Rs. 35 that was paid for the cost of stamp and registration of the deed in suit and for household expenses the trial Court, as already observed, held that legal necessity for a sum of Rs. 15 was not established. The lower appellate Court however held that if the legal necessity foe the remaining consideration is proved, this sum of Rs. 15 forms a very small part of the same and in view of the several pronouncements of the Hon'ble High Court and the Privy Council, it should be presumed that there was legal necessity for this small item also.
6. The Learned Counsel for the defendant-appellant contends that the lower appellate Court was wrong in holding that, if a substantial portion of a debt secured by a mortgage is proved for legal necessity, there is a presumption in law that the remaining portion of the debt, which constitutes a small part of the entire debt, was also borrowed for legal necessity. In our judgment this contention is well founded and ought to prevail.
7. In cases of sales by the manager of a joint Hindu family it is well settled that if the transaction of sale is itself justified by legal necessity and the purchaser pays a fair price for the property purchased by him, and acts in good faith and after due enquiry as to the alleged necessity for the sale, the mere fact that a part of the price paid by the purchaser is not proved to have been applied for legal necessity would not invalidate the transaction of sale. But the principle enunciated above has no application to cases of debts secured by a mortgage of the family property executed by the manager of a joint Hindu family. The transaction of sale has to be considered as a whole and, if the transaction itself is proved to have been justified by legal necessity, the mere fact, that the entire sale consideration is not proved to have been raised for family necessity, cannot invalidate the transaction itself, and the reason for this is not far to seek. In cases of sales the Court has to consider the question whether there was pressing necessity justifying an alienation of the family property and if such necessity is established as regards the substantial portion of the sale consideration, the Court cannot substitute a new transaction for the original sale, by upholding the sale with respect to such portion of the family property sold that is proportionate to the Bale consideration proved to have been required for legal necessity, and cancel the sale with respect to the balance of the family property. The sale must stand or fall as a whole. But cases of mortgage of joint family property stand on a totally different footing. It cannot be disputed that the burden of proving the existence of legal necessity for the mortgage-debt, which is sought to be realized by sale of the family property, lies upon the mortgagee. That being so, the mortgagee can not ask the Court to pass a decree for the sale of the family property for any portion of the mortgage-debt which is not proved to have been taken for family necessity. Accordingly, in suits for sale of the family property for realization of mortgage-debts, it is not permissible to relieve the mortgagee from the burden of proving legal necessity for every item of the mortgage-debt, and no assumption in the absence of positive proof, can be made that any portion of the mortgage-debt however small it may be, was incurred for family necessity. In the case before us there was no evidence to prove that the sum of Rs. 15 disallowed by the trial Court was borrowed for legal necessity and accordingly, the lower appellate Court was wrong in passing a decree for sale in the plaintiff's favour with respect to that amount.
8. There is an obvious error in the decree drawn up by the lower appellate Court. The entire amount claimed by the plaintiff on account of principal and interest was Rs. 1,400. In the decree that amount was treated as the principal amount secured by the mortgage-deed in suit and interest at the stipulated rate was calculated on that amount (Rs. 1,400) from 2nd July 1926, the date of the execution of the mortgage-deed in suit to 29th October 1932, the date fixed by the lower appellate Court for payment of the decretal amount. As a result of the findings arrived at by us, the plaintiff-respondent is entitled to a decree for Rupees 643-7-0 principal with interest at the stipulated rate up to the date fixed by us for payment of the decretal amount. We fix 8th August 1934, for payment of that amount together with interest at the stipulated rate, viz., at the rate of 2 per cent per mensem from 2nd July 1926 up to 8th August 1934. Interest thereafter will run at the rate of 6 per cent per annum. Parties will pay and receive costs in proportion to success and failure in all Courts. Let a decree be prepared under Order 34, Rule 4, Civil P.C.