JUDGMENT
1. This was a suit on a mortgage of the 2nd of May 1909. The mortgagors were two brothers, Newazi and Dhanna. The suit is brought by the mortgagee against these two, along with Ganga Prasad and Basant, the minor sons of Dhanna. The property alienated was a share in an ancestral house, of which share the present owners are admittedly the four defendants. The object of the suit, of course, in to bind the interest of the two minor defendants in the property sought to be brought to sale. The mortgage-debt is stated in the deed in suit at Rs. 500 It was made up as follows: Rs. 269 was already due to the mortgagee upon a series of loans advanced to the mortgagors on their personal security; a sum of Ra. 231 was to be paid over at registration. The minors riled a separate written statement raising various defenses. We are only concerned at present with the fact that they challenged the plaintiff to prove that the sum of Rs. 231 was actually advanced and, secondly, that, if advanced. It was borrowed by the mortgagors for any such legal necessity as would entitle them to charge the ancestral joint family property.
2. The Court of first instance found for the plaintiff on all issues so far as these concerned the sum of Rs. 269, and the appeal now before us doss not challenge the right of the plaintiff to obtain a decree for sale in respect of this sum with interest.
3. The Trial Court, however, upheld the defence of the minors in respect of the item of Rs. 231 to its full extent, holding that it was no proved that this cash advanoe had ever been made by the mortgagee to the mortgagors. On this finding, of course, the question of legal necessity for this loan did not arise, in appeal the learned District Judge held that Rs. 231 had, in fact, been paid over by the mortgagee to the mortgagors at the time of registration, though not, in the presence of the Sub-Registrar. This is a finding of fact by which we are bound and which is not challenged in the memorandum of appeal before us. The question remains, whether this Hum of Rs. 231 represents a debt incurred for legal necessity. Ob one point which has only incidentally been taken by the learned District Judge, the appellants are certainly right. It appears that of the two appellants in this Court, namely, the two minor sons of Dhanna, Ganga Prasad, the elder, was in existence at the time when the mortgage in suit was contrasted while Basint, the younger, was born subsequently. The learned District Judge has remarked incidentally that, under these circumstances, Basant, at any rate, is not entitled to challenge the alienation. On the principles laid down by a Bench of this Court in Tulshi Ram v. Babu Lal 10 Ind. Cas. 908 : 8 A.L.J. 733 : 33 A. 654 it is sufficient that the elder of the two minors, Ganga Prasad, was in existence at the time of the alienation to enable this defense to be set up on behalf of his younger brother as well as of himself. There remains the question whether the learned District Judge's finding that there was legal necessity for this loan of Rs. 231 is a correct finding, or is one with which we can or should interfere in second appeal. The question of legal necessity is usually a mixed question of fast and of law. The evidence on which the learned District Judge has seen fit to proceed is undoubtedly slender, but we are prepared to ascent so much of his decision as can be treated as a finding of fact. It appears then that, at the time when this transaction was entered into, Newazi and Dhanna were carrying on a business as contractors for the Saddle and Harness Factory at Cantered. They borrowed this Bum of Rs. 2 31 for the purpose of this business. There the evidence stop, and the learned District Judge himself has recorded no finding which goes beyond this. He seems to be of opinion that a father, as manager of a joint Hindu family, has a general right to dispose of joint family property by way of sale or mortgage, provided that the money thus raised is used by him in some business by which he expects to earn more money. In our opinion this is not a correct statement of the powers of the manager of a joint Hindu family, and a heavier burden of proof lay upon the plaintiff mortgagee in this case before he could succeed as regards this loan of Rs. 231. We are content to refer to what is practically the latest authority on this point, the decision of their Lordships of the Privy Council in Sahu Ram chandra v. Bhup Singh 39 Ind. Cas. 280 : 39 A. 437 : 21 C.W.N. 698 : 1 P.L.W. 557 : 15 A.L.J. 437 : 19 Bom. L.R. 498 : 26 C.L.J. 1 : 33 M.L.J. 14 : (1917) M.W.N. 437 : 22 M.L.T. 22 : 6 L.W. 213 : 441 : A. 126 (P.C.) We refer particularly to the remarks regarding the onus of proof in such a suit as the present, which are to be find at page 415 of the report. In our opinion this appeal must succeed.
4. We set aside the decree of the lower Appellate Court and restore that of the Court of first instance so far as these present appellants are concerned. The appellants in this Court will be entitled to their costs in this and in the lower Appellate Court. The costs in this Court will include fees on the higher scale. We formally enlarge the time for payment to three (3) months from the date of this decree.