JUDGMENT
1. This appeal arises out of a suit on foot of a mortgage, dated the 19th of May 1899. The principal amount was Rs. 722. The interest was 1-8, per cent, per month, compound interest, with annual rests. The claim has now swelled to the large sum of Rs. 6,207-6-0. The Court below has held that the full amount was borrowed and that there was family necessity and has granted a decree. The mortgage was executed by Lachmi Prasad Tewari and Gaya Prasad Tewari. The defendants are the entire joint family of Lachmi Tewari and Gaya Prasad Tewari, who are brothers. One of the defendants, Badri Prasad Tewari, is the brother of Lachmi Prasad and Gaya Prasad, who was a minor at the time the bond was executed. Lachmi Prasad, in his written statement, admitted that he executed the bond, hut said as to Rs. 300-5-0, part of the consideration, that he had never received it. Gaya Prasad Tewari pleaded that he was a minor at the time that the bond was executed and that he knew nothing about it. The other defendants pleaded that there was want of consideration and that there was no family necessity. On these pleas it lay upon the plaintiff to prove not only that the bond was executed, but that there was family necessity and that the full amount of the consideration was duly paid. We find that part of the consideration was a sum of Rs. 421-11-0, alleged to be due for a previous debt, namely, a bond dated the 14th of October 1898. Looking at this bond we find that it was executed by Lachmi Prasad alone and in consideration of two sums, one of Rs. 353 paid in cash and Rs. 22-10-9 due upon foot of another bond, dated Magh Sudi 1st, 1302 Fasli. This bond is also on the record. It was a bond for Rs. 17, found to be due for a debt of the grandfather of Lachmi Prasad. There is no evidence to show that the Rs. 53, was for any family necessity. We think, however, that it is proved that the Rs. 22-10-9 was for family necessity. The balance of the consideration was Rs. 300-5-0. This is said to have been wanted for the payment of Government revenue. The evidence as to the payment of the money is not altogether satisfactory. Gaya Prasad and Lachmi Prasad deny having received the amount, though they admit that it was required. However after considering the evidence and what has been put forward on each side, we do not feel justified in holding that this sum of Rs. 300-5-0 was not received. If it was received and utilized for the payment of Government revenue it would amount to family necessity. It appears that shortly after the date of the bond the Government revenue was in fact paid. We, therefore, find that Rs. 300-5-0 and Rs. 22-10-9 was for family necessity, but no necessity has been proved for raising the remaining part of the loan. It must be remembered that we are not dealing with the case of a father's debts. The sum of Rs. 421-11-0 was alleged to have been given to Lachmi Prasad, the brother of Gaya Prasad and Badri Prasad. It remains to be considered whether there was any necessity to borrow at the high rate of 18 per cent, per annum compound interest. In our opinion no necessity for borrowing at this rate has been proved.
2. It is contended, on behalf of the respondents, that as Lachmi Prasad has not appealed the decree of the Court below should stand against him. In our opinion this contention is not sound. The family property can in a mortgage suit only be brought to sale for such amount as the Court finds there was family necessity for.
3. We accordingly must vary the decree of the Court below by giving a decree for Rs. 322-15-9 together with simple interest at the rate of 15 per cent, per annum from the date of the mortgage up to the time hereby fixed for payment. This sum together with costs in all Courts proportionate to this amount will be realised by sale of the mortgaged property. We fix six months from this date for payment. After the date so fixed for payment interest will ran at the rate of 6 per cent, per annum. The decree will be drawn up in the usual form.