JUDGMENT Niamatullah, J.
1. This is an appeal by defendants 2 to 6, sons and a grandson of Peshi Ram, from the decree of the learned District Judge of Agra upholding a decree of the Subordinate Judge of that district in a suit brought by Thakur Mewa Ram, the plaintiff-respondent, for recovery of Rs. 2,450, being one-third of the amount due under a mortgage deed, dated 8th August 1913, executed by the aforesaid Peshi Ram and his two brothers, Mitthu Lal and Shambhu Nath. The deed in suit was executed by the three brothers for Rs. 7,500 of which Rs. 1,500 left for payment to certain prior mortgages was admittedly not paid by the mortgagees. The deed must therefore be assumed to be for a consideration of Rs. 6,000. The plaintiff gives credit for a payment of Rs. 3,237 made towards part satisfaction of the deed by the mortgagors. Mitthu Lal and Shambhu Nath have executed other deeds in favour of the plaintiff in respect of two-thirds of the amount due under the mortgage deed in suit. The remaining one-third of what remained due under it is claimed by the plaintiff-respondent against the sons and grandson of Peshi Ram, who died shortly after the institution of the suit.
2. It was pleaded in defence that Peshi Ram and defendants 2 to 6 were members of a joint Hindu family to which the hypothecated property belonged, that there was no legal necessity for the loan alleged to have been contracted by Peshi Ram and that the family property was not liable to be sold in enforcement of the mortgage deed in suit. The contesting defendants went further and denied the passing of any consideration under the deed. Two issues were set down for trial by the Court of first instance, viz., whether the deed in suit was for consideration and the mortgaged property was ancestral and, if so, whether Peshi Ram justified in hypothecating the same. It has been found by both the Courts below that the deed in suit was for consideration, and this finding has not been challenged before us. Both the Courts below have likewise found that Peshi Ram had, under the circumstances in which the loan was contracted, authority to contract it so far as to bind the joint family property belonging to himself and the contesting defendants. As will presently appear, the grounds on which the two lower Courts have proceeded are somewhat different. Both of them have however concurred in decreeing the plaintiff's claim in full. Hence the present appeal.
3. The principal question raised by the pleadings was whether there' was legal necessity for the loan evidenced by the mortgage deed in suit and whether in any case, the plaintiff mortgagee was satisfied, on representations being made to him and after due inquiry, that there was legal necessity for the loan, though none in fact existed. It cannot be disputed that, if either of the two questions involved in the issue stated above is answered in the affirmative, the plaintiff respondent's suit must succeed. The judgment of the learned District Judge appears to proceed on the finding that there was in fact legal necessity for the entire sum of Rs. 6,000, advanced under the deed. Prima facie the finding of the learned Judge would have been conclusive in second appeal, were it not for the reason that a now case has been made out thereby which is not warranted by the pleadings and which took the defendants-appellants by surprise. We proceed to explain our view by carefully analyzing the findings of the learned District Judge in the light of the pleadings in the case.
4. The consideration of Rs. 6,000 claimed under the deed in suit, consists of five items as follows:
(1) Rs. 2,100 paid to Bhagwan Das and Pearey Lal, who held a decree obtained by them in Suit No. 35 of 1921 against Shambhu Nath alone.
(2) Rs. 3,200 paid to Sham Lal, who had obtained a decree in Suit No. 118 of 1912 in reality against Shambhu Nath alone, though the decree erroneously mentioned the names of Mitthu Lal and Peshi Ram among the judgment-debtors.
(3) Rs. 500 paid in satisfaction of a mortgage executed by Raja Ram, the father of Peshi Ram and grandfather of the appellants. It is not disputed before us that this part of the consideration is recoverable from the . appellants, having been taken for payment of an ancestral debt binding on them.
(4) Rs. 80 paid to the executant in cash before the execution of the deed in suit.
(5) Rs. 120 paid in cash before the Sub-Registrar at the time of the registration of the deed in suit.
5. Except as regards item 3 of Rs. 500, the appellants disputed their liability with regard to the entire consideration.
6. As regards item 2, which has been considered first of all by the learned District Judge, he observes that:
Peshi Ram was a railway servant and lived at different places, and his two brothers remained in the village and had a family shop called by the name of Raja Ram-Shambhu Nath and had the landed property. Shambhu Nath as elder brother managed the property. Suit No. 118 of 1912 was on a " hundi " executed by Shambhu Nath for money used to be given out as loans from the joint money-lending shop. A suit on a " hundi " does not need to be brought against all the members of a joint Hindu family. The fact that Shambhu Nath, who alone executed the " hundi," was the only brother sued does not prove that the liability was a separate one.
7. The view taken by the learned District Judge, whether right or wrong, proceeds on the assumption that the three brothers, Peshi Ram, Shambhu Nath and Mitthu Lal, formed a joint Hindu family which possessed a shop managed by Shambhu Nath, who executed a "hundi" for purposes of the family business, and that the decree in Suit No. 118 of 1912 was passed on foot of such " hundi." A reference to the plaint shows that the plaintiff-respondent did not allege, nor intended to allege, the case which is involved in the finding of the learned District Judge quoted above. The only reference to the case of joint Hindu family is to be found in para. 6 of the plaint, in which it is alleged that defendants 2 to 6 have connexion with the property mortgaged. The debt in question was contracted for valid necessity.
8. In the succeeding paragraph it is alleged that Pandit Peshi Ram, the principal executant, is dead. Defendants 2 to 5 his sons and defendant 6, his grandson, are the heirs in possession of the property mortgaged.
9. It is quite clear that defendants 2 to 6 were sued not as members of a joint Hindu family with their deceased father Peshi Ram, but as heirs. A passing reference to valid necessity probably made to anticipate a possible case to be set up in defence, is not, in our opinion, enough to make the plaint one in a suit for enforcement of a liability incurred by the manager of a joint Hindu family consisting of all the descendants of Raja Earn. At best, the reference can be considered to be to a joint Hindu family consisting of Peshi Ram and his own descendants. The written statement set up a joint family of this description. Peshi Ram, his sons and grandson are stated to be members of a joint Hindu family to which the property now owned by defendants 2 to 6 belonged. Accordingly, it was pleaded that Peshi Ram, the father and head of such joint family, could not contract a loan in the absence of legal necessity. There is no trace in the plaint or anywhere else of the allegation that Peshi Ram with his descendants formed a joint Hindu family with his brothers Shambhu Nath and Mitthu Lal and their descendants. If such an allegation had been made in the plaint originally or any time subsequently, the defendants would in all probability, have set up a complete separation between Peshi Ram and his brothers. Indeed the plaint itself affords sufficient indication of such being the case. Shambhu Nath and Mitthu Lal are alleged in para. 5 of the plaint to have undertaken the payment of two-thirds of the debt by executing separate deeds in favour of the plaintiff, leaving Peshi Ram to pay his one-third which is in suit and which was in fact due from Shambhu Nath. It is important to note that he executed a deed of security or indemnity in favour of Peshi Ram against any loss resulting to him from joining with Shambhu Nath in executing the deed in suit. We have tried to ascertain from the counsel as to whether such a case was set up by the plaintiff-respondent in the trial Court. They failed to enlighten us on the question. We have tried to ascertain it for ourselves from the record and have been equally unsuccessful. Under these circumstances, we are clearly of opinion that the learned District Judge was not justified in decreeing the plaintiff's claim on a footing wholly unwarranted by the pleadings of the parties.
10. We are also unable to discover anything in the evidence of the plaintiff and his witnesses to warrant the supposition that there was a family shop, that a " hundi " was executed by Shambhu Nath in course of the management of such shop and that the decree in Suit No. 118 of 1912 was obtained on foot thereof. The hundi being the foundation of Suit No. 118 of 1912 and having been executed by Shambhu Nath as the manager of the shop, might have been obtained from the record of that case which happened to be before him for some reason or other. It is not infrequently that we come across cases in which extraneous matter is relied on in deciding important questions arising between the parties. The legal practitioners in the mufassil are to understand clearly that in arguing their case they must confine themselves to such documents as were produced by them and exhibited in the case. If the record of another case happens to be before the Court for a specific purpose, e. g., where the genuinenesss of a document on the record of another case, of which a certified copy is produced in the case, is denied and the record of that other case has to be summoned to formally produce the original and prove its genuineness, such record as a whole and its contents cannot be treated as evidence in the case for any purpose other than the one for which it has been summoned. Sham Lal, who holds the decree in Suit No. 118 of 1912, to which item 2 relates, was examined as a witness and stated that he could not say if Shambhu Nath, Mitthu Lal and Peshi Ram lived jointly and that Shambhu Nath alone had executed the hundi in his favour on foot of which he obtained the aforesaid decree. He proceeded to say that he did not. know whether the business of the three brothers was joint. The learned Judge does not refer to the evidence on which he based his conclusion. We have not been able to find any evidence bearing on that question other than that of Sham Lal, already referred to, which, on the face of it, does not support the finding of the learned Judge. The Court of first instance held positively that " Peshi Ram and his sons had nothing to do with " item 2 and that " their property cannot be liable for it." Under these circumstances, we are of opinion that the assumption on which the conclusions of the learned Judge as regards item 2 are based was not open to the plaintiff-respondent in disregard of the pleadings and that, in any case, there is no evidence which warrants those circumstances.
11. With regard to item 1 of Rs. 2,100 paid towards the satisfaction of the decree in favour of Bhagwan Das and Pearey La obtained in Suit No. 35 of 1912, the circumstances are peculiar. The aforesaid creditors instituted the suit against all the three brothers. An objection was taken by Pashi Ram to his brother Mitthu Lal and himself being made liable. The plaintiffs' pleader appearing in that case expressly exempted both of them. The decree when it was formally drawn up, erroneously showed the names of all the three brothers as judgment-debtors. By a petition, dated 8th July 1913, apparently after the expiry of limitation for appeal, they protested against their names being included in the decree and maintained that the decree-holder was " liable for perjury." In spite of this, attachment was made of the property in which all the three brothers were interested on 1st August 1913, and they contracted the loan in question and executed the deed in suit on 8th August 1913 taking an indemnity bond from Shambhu Nath. The decree was satisfied on the following day. The learned District Judge says that even if Suit No. 35 of 1912 is considered to be against Shambhu Nath alone, a similar argument will apply, i. e.,
12. Shambhu Nath being the head the family, contracted the loan for family purposes. We have already given our reasons for not accepting this view. Referring to the evidence of P. W. 4, Dal Chand, through whom the loan was contracted from the plaintiff, the learned Judge observes that this witness says that Shambhu Nath said that Raja Rain's property had been put up for sale and asked him to got the money, and he took them to plaintiff.
13. Apparently the learned Judge thinks that a representation was made to the plaintiff as regards the necessity of the loan. If this is so, he seems to have affirmed the view of the trial Court. The following is the relevant portion of the latter's judgment on the point:
The facts that remained are that there was a decree (No. 35 of 1912) against Peshi Ram and Mitthu Lal and their property had been attached in execution of it, and they borrowed Rs. 2,100 to save the property from sale and got it paid by the plaintiff to the decree-holder. This is proved by the evidence of Dal Chand, attesting wit-ness of the deed in suit, as well as by documentary evidence referred to above. In the face of the decree and attachment in execution of it, and representation of the necessity by Peshi Ram and his brothers there was no need or occasion for the plaintiff to go behind the decree and make any inquiries into the legality or validity of the decree. Instead of questioning the decree and attachment Peshi Ram and Mitthu Lal themselves went with Shambhu Nath, borrowed money, executed the deed in suit, mortgaging their property jointly and got the decretal money paid to the decree-holder by the plaintiff. It was sufficient for the plaintiff to see that there was a decree against all the brothers, in execution of which their property had been attached. An analogy for it might be found in the case in which the money borrowed might not be spent on any valid necessity but about which the creditor has satisfied himself by making inquiries. If a creditor does so, the mortgage in his favour will be binding on the sons of the mortgagor. Even the real existence of an alleged sufficient and reasonable credited necessity is not a condition precedent of the validity of a charge.
14. So far as the proposition of law implied in the observations of the learned Subordinate Judge quoted above is concerned, it is unexceptionable. We have said so in an earlier part of the judgment. The learned Subordinate Judge is obviously not prepared to find as a fact that the appellants' father, Peshi Ram, was justified in contracting the loan by any actual legal necessity. But he seems to proceed on the well-known ground that if on a representation made to the creditor who makes inquiries into the necessity of the loan and being satisfied with the existence thereof he lends money to the father in a joint Hindu family, believing in good faith that the necessity for the loan existed, though in fact it did not, the sons and grandsons are bound to pay the debt thus advanced by him (the creditor). The only two witnesses referred to by the learned Subordinate Judge as regards the representation made to, and inquiries made by, the plaintiff are Dal Chand and the plaintiff himself. We have carefully read the evidence of both these witnesses and are struck by the remarkable absence of all reference to any representation having been made to the plaintiff or to any inquiry of any kind having been made by him on the subject. If there had been any evidence of such representation and inquiry however meagre we would not have interfered with the finding of fact in second appeal; but we are constrained to find that there is a total absence of it. The whole of the plaintiff's evidence in examination-in-chief is quoted below:
Peshi Ram, Mitthu Lal and Shambhu Nath. executed a deed for Rs. 7,500. I paid Rs. 8O to them of expenses of execution before registration and Rs. 120 before the Sub-Registrar, I paid Rs. 2,100 on account of the decree of Pearey Lal and Bhagwan Das, and Rs. 3,200 to Sham Lal decree-holder. Out of Rs. 2,000 left with me for Sobha Ram and Mewa Ram I paid Rs. 500 to them. The executant lived jointly at the time. Shambhu Nath was the eldest member and manager. A/89 shown to me was executed by Sham Lal, A/90 by Bhagwan Das and Pearey Lal, A/91 by Sobha Ram and Mewa Ram and these receipts bear the executants' signatures.
15. Nothing has been elicited in cross-examination to add to his evidence. It will appear from the quotation made above that the plaintiff is silent as regards any representation having been made to him or as to any inquiry made by him. He merely deposes to having advanced certain sums either to the executants or towards the satisfaction of decrees and prior debts, for which he obtained receipts.
16. P.W. Dal Chand, the only other witness relied on by the learned Subordinate Judge, stated as follows:
Peshi Ram, Mitthu Lal and Shambhu Nath executed the deed to the plaintiff. I witnessed Sham Lal's receipt. Rs. 2,100 was paid to Bhagwan Das and Pearey Lal in my presence. Rupees 500 was paid to Sobha Ram and Mewa Ram and Mul Chand in my presence. I witnessed the receipts A/89, A/90 and A/91 shown to me. Peshi Ram Shambhu Nath and Mitthu Lal lived jointly when the deed in suit was executed. I am pattidar of Shambhu Nath. Shambhu Nath had told (me) that Raja Ram's property had been put up for sale, and asked me to get him money. I took Mitthu Lal and Peshi Ram to the plaintiff and asked him for the money. The plaintiff paid out and got the property mortgaged. Money was borrowed from the plaintiff to save the property from sale.
17. The above is the whole of his evidence in examination-in-chief. The cross-examination, which is meagre does not in any way add to the value of the evidence in chief. As in case of the plaintiff, this witness is also silent on the question of representations having been made to the plaintiff or inquiries made by him. It may be that Shambhu Nath said something to the witness himself and sought his intervention. As to whether Shambhu Nath, much less Peshi Ram, the appellant's predecessor, made any representation to the plaintiff or whether the plaintiff himself made any inquiry and discovered that the family property belonging to Peshi Ram and his sons had been attached in "execution of a decree to which ex facie Peshi Ram was a party and as to whether the plaintiff was or was not aware of the fact that Peshi Ram and Mitthu Lal had been exempted, the decree erroneously showing their names, are facts as to which there is no evidence. The doctrine that the existence of legal necessity may be assumed from a representation to, and inquiry made by, the money-lender, who acted in good faith in lending money to the father works fairly in practice, having regard to the difficulties which a money-lender has, in many cases, in ascertaining the truth as to the existence or otherwise of legal necessity; but it should not be unduly extended so as to warrant an assumption that,' if an inquiry had been made, the money-lender could have discovered just those facts which would have convinced him of the existence of the necessity and could not have discovered some others which would have shown otherwise. We cannot assume that, if the plaintiff had made inquiries, he would have discovered that a decree prima facie against all the three brothers existed and that the property belonging to them was under attachment; but that he would not have been able to discover that Peshi Ram and Mitthu Lal had been exempted from liability and that by a palpable error in the decree Peshi Ram and Mitthu Lal were shown among the judgment debtors, an error which, if due to a similar error in the judgment or order of the Court could be easily rectified at any time under Section 152, Civil P.C. If the plaintiff had stated that a representation of necessity was made to him, that he made inquiries and found that there was a decree and attachment but that, in spite of reasonable inquiries, he failed to discover that Mitthu Lal and Peshi Ram had been exempted, matters would have stood differently. As already stated we cannot assume this in the absence of evidence, particularly that of the plaintiff himself who gave his evidence but refrained from making any statement on the point. For these reasons we hold that the validity of such part of the consideration as is represented by item 1 has not been made out.
18. As regards items 4 and 5, i. e., cash payments before and at the time of registration, there is likewise no relevant evidence. All that the plaintiff and Dal Chand say about them is that they were borrowed for certain purposes. As to whether they were in fact borrowed for those purposes or that there was a reasonably credited necessity for those sums on representation made to any inquiry made by the plaintiff, there is no evidence whatever.
19. The result is that the mortgage-deed in suit is not binding on the appellants, except to the extent of one-third of Rs. 500. Accordingly we allow this appeal and modify the decrees passed by the Courts below so as to limit them to one-third of Rs. 500 with interest at the contractual rate. Let a fresh decree be prepared, under Order 34, Rule 5, Civil P.C. Interest after the date fixed for payment shall run at the rate of 6 per cent per annum till realization. Parties shall receive and pay costs in all the Courts in proportion to success and failure. Costs in this Court will include counsel's fees on the higher scale.