JUDGMENT Mohammad Ismail, J.
1. This is an appeal by some of the defendants in a suit brought by the plaintiffs for the recovery of Rs. 34,861-10-6 by sale of the properties described at the foot of the plaint. Harbans Singh, a resident of mauza Dola in the District of Meerut, was at one time in possession of considerable immovable properties. Harbans Singh had three sons, Fateh Singh, Udai Prakash and Om Prakash. Gandharap Singh is the son of Om Prakash and is described in the plaint as aged five years. It is admitted that Fateh Singh was a major at all material periods. There is dispute about the exact age of the remaining two sons. According to the plaintiffs Udai Prakash was born in 1896 and Om Prakash some four years later. The defendants contend that Udai Prakash was born in October 1901 while Om Prakash in 1904. On 19th February 1920 Fateh Singh on his own behalf and on behalf of his minor brother Om Prakash, and Udai Prakash executed a hypothecation bond in favour of L. Chunni Lal, plaintiff 1 and L. Ratan Lal, father of Ajit Prasad, plaintiff 2, for Rs. 8500 carrying interest of Re. 1-4.0 per cent, per mensem with six-monthly rests. Some of the properties hypothecated were encumbered under an earlier bond dated 14th May 1918 executed by Fateh Singh and Harbans Singh for Rs. 1500 in favour of one Mahabir Prasad. Mahabir Prasad brought a suit for the enforcement of his mortgage in 1922 (in Suit No. 312 of 1922). The suit was decreed and the mortgaged properties were sold at an auction sale in November 1926. The plaintiffs made an application under Rule 89, Order 21, Civil P.C., on 24th November 1926 to set aside the sale on payment of the decretal amount.
2. The plaintiffs alleged that in pursuance of the order of the Court they deposited Rs. 4120-10-6 in full satisfaction of the decree and the sale was set aside by the Court. The plaintiffs now claim Rs. 30,000 under the bond of 1920 and Rs. 4861.10-6 on account of the money paid by them to set aside the sale. This latter sum includes interest at the rate of 6 per cent, per annum. In para. 5 of the plaint it is stated that the debt mentioned in both the bonds was contracted by defendants 1 and 2, who were the managers and of the family, for lawful necessity and for the payment of a previous debt of the joint Hindu family. There is a slight inaccuracy in the statement. The first bond of 1918 was executed by defendant 1 and his father Harbans Singh. Defendant 2 was no party to it. Besides the principal defendant a large number of persons were impleaded as subsequent transferees. The suit was mainly contested by Udai Prakash, Om Prakash, Gandharap Singh and Jagannath Prasad, defendant 17, who is said to have purchased some of the properties in suit. The claim was resisted on a variety of grounds. It was pleaded inter alia that Fateh Singh, Udai Prakash and Om Prakash were not members of a joint Hindu family; that Fateh Singh was a certificated guardian of Om Prakash; that the mortgage in suit was executed without the permission of the District Judge, that there was no legal necessity for the execution of the bonds mentioned above and that in any event the claim for the recovery of Rs. 4861-10-6 alleged to have been paid by the plaintiffs in satisfaction of the decree in favour of Mahabir Prasad is not recoverable. The learned Civil Judge decreed the suit and ordered a preliminary decree to be prepared under Order 34, Rule 4, Civil P.C. This appeal has been preferred by Jagannath Prasad, Om Prakash and Gandharap Singh, minor through his father Om Prakash. Appellant 4, Chandar Mohan Lal, son of Jagannath Prasad, was added to the array of appellants by an order of this Court dated 24th April 1936. It appears that Jagannath Prasad has transferred some of the properties in suit acquired by him to his son.
3. It will be convenient to refer to another suit which was brought by the present plaintiffs against the contesting defendants and some other persons for the enforcement of another mortgage as the decision of that suit will have a strong bearing on some of the issues involved in the present suit. On 15th September 1922, Udai Prakash on behalf of himself and his minor brother Om Prakash executed a hypothecation bond in favour of the plaintiffs for Rs. 6000. A suit for the enforcement of that mortgage was instituted on 5th January 1929 (No. 6 of 1929). The present suit was instituted some months later on 25th November 1929. The suit was contested by Udai Prakash, Om Prakash, Gandharap Singh and Jagannath Prasad on the grounds similar to those raised in the present suit. The trial Court decreed that suit but on appeal to this Court the decree of the trial Court was modified on 23rd June 1932. The plaintiffs appealed to their Lordships of the Judicial Committee, but the decree of the High Court was affirmed on 26th June 1939. In that suit it was decided that in 1915 the family had become divided in estate, that Udai Prakash was not a minor in September 1922, that Fateh Singh who was appointed a guardian by the District Judge, ceased to be a guardian on the attainment of majority by Udai Prakash and that Fateh Singh was separate from his two brothers Udai Prakash and Om Prakash who were joint inter se.
4. The question of separation and jointness cannot be re-opened now as the decision on that point in the previous suit is binding upon the parties. The appeal has been argued by learned Counsel for the parties on the footing that Fateh Singh was separate from his two brothers who were joint amongst themselves. We now proceed to consider the question of minority of Udai Prakash at the time of the execution of the bond of 1920. Udai Prakash described himself as a major in the bond. The onus lies on him to prove that he was a minor. The parties have produced some oral evidence in support of their respective allegations. In our opinion, the oral evidence is wholly unsatisfactory and no finding can be based on the strength of such evidence. (After discussing evidence the judgment proceeded further). If we accept the estimate of the learned District Judge, Udai Prakash would certainly have attained majority in February 1920. In this state of evidence we find it extremely difficult to hold that Udai Prakash was a minor in 1920 as alleged by the defendants. It is true that in 1912 Harbans had no particular object in under-estimating the age of Udai Prakash, but it would be highly unsafe to accept the statement of Harbans Singh at its face value having regard to his subsequent conduct. The burden of proof is on the defendants and in our opinion they have failed to discharge it. The next question that falls to be decided is whether Udai Prakash was competent to execute a mortgage affecting property jointly held by himself and his minor brother Om Prakash.
5. At the time of the execution of the bond Fateh Singh was a certificated guardian and no order was obtained from the learned District Judge terminating the guardianship. We are relieved of the necessity of examining this question at length in view of the decision of the learned Judges in the previous litigation which is reported in Jagannath Prasad v. Chunni Lal (1933) 20 AIR All 180. As stated above this judgment was affirmed by their Lordships of the Judicial Committee. The learned Judges concluded their finding on this point in the following terms:
It is we consider contrary to the Hindu law that there should be a guardian certified by the Judge for a joint Hindu family where there is an adult member. On the attainment of adult status by one of the minors for whom a guardian had been appointed, we consider that ipso facto the guardianship terminates. Therefore we consider that in the present case Udai Prakash on attainment of majority would be competent to execute a mortgage for legal necessity on behalf of himself and on behalf of his minor brother Om Prakash notwithstanding the fact that Fateh Singh still continued to be recorded as a certified guardian appointed by the District Judge. As we have held that Udai Prakash was not a minor in February 1920 it follows that he was competent to execute a mortgage for legal necessity.
6. Now we proceed to examine each transaction in detail to see how far it is binding on the defendants. Item 1 of Rs. 4861-10-6 relates to the deposit made by the plaintiffs to satisfy the decree which was obtained by the mortgagee Mahabir Prasad on foot of the mortgage dated 14th May 1918. It was in consequence of this deposit that the sale of the mortgaged property was set aside. Learned counsel for the appellants contends that the plaintiffs are not subrogees because they did not redeem a subsisting mortgage. It is argued that the mortgage of 1918 merged in a decree and therefore any payment made by the plaintiffs after the sale of the property would not entitle them to recover that money by sale of the mortgaged property. Section 92, T.P. Act, provides:
Any of the persons referred to in Section 91 (other than the mortgagor) and any co-mortgagor shall on redeeming property subject to the mortgage have so far as regards redemption, foreclosure or sale of such property the same rights as the mortgagee whose mortgage he redeemed may have against the mortgagor or any other mortgagor.
7. This Section is new and was inserted by the Amending Act 20 of 1929. It is conceded that under Order 34, Rule 5, Civil P.C., the right of a mortgagor to redeem a mortgage was not lost till the sale was actually held and confirmed. It is however contended that the decretal money having been paid off before the present Rule 5 of Order 34 came into force the plaintiffs are not entitled to claim the privilege conferred by that Rule. Certain authorities have been cited in support of this contention which will be examined later. Rule 5 of Order 34 corresponds to Section 89, T.P. Act, which was repealed in 1908. The words at the end of Section 89 "and thereupon the defendant's right to redeem and the security shall both be extinguished" were omitted in Rule 5. This rule was amended in 1929. In para. 1 the following words were added by the amendment:
Or at any time before the confirmation of a sale made in pursuance of a final decree passed under Sub-rule (3) of this rule.
8. The question is whether before the amendment of 1929 a subsequent mortgagee who paid off the decretal money obtained on foot of a prior mortgage is entitled to claim that money by sale of the hypothecated property. Section 69, Contract Act (9 of 1872), provided:
A person who is interested in the payment of money which another is bound by law to pay and who therefore pays it is entitled to be reimbursed by the other.
9. The words "interested in the payment of money" may include the apprehension of any kind of loss or inconvenience or at any rate, any detriment capable of being assessed in money. (See Siti Fakir v. Chand Bewa (1928) 15 AIR Cal 389 and Muni Bibi v. Tirloki Nath (1932) 19 AIR All 332.) It is manifest that the plaintiffs were interested in the payment of the decretal money to prevent the transfer of mortgaged property to the auction purchaser. It is also manifest that the mortgagors were bound to satisfy the decree that was passed against them on foot of the mortgage of 1918. On general principles of equity, the plaintiffs must be reimbursed unless there is any statutory bar to such a claim. We have not been referred to any statutory provision which bars such a claim. In Gopi Narain v. Bansidhar (1905) 27 All 325 their Lordships of the Judicial Committee allowed the second mortgagees to recover money paid by them to satisfy the decree obtained by the prior mortgagee. In that case the prior mortgagee brought a suit for foreclosure of a mortgage by conditional sale in which the second mortgagee of the same property was a defendant. A decree for foreclosure was passed and six months time was allowed for redemption. A similar decree was made in a suit brought by the second mortgagee. As the mortgagors made no payment to secure redemption the second mortgagee, in order to prevent a decree absolute for foreclosure being passed against himself paid into Court the sum due under the decree in the first suit. Their Lordships of the Judicial Committee held that the subsequent mortgagee was entitled to bring a suit although he had not acquired the status of a decree-holder and therefore could not execute the decree as a decree-holder. In Shib Lal v. Munni Lal (1922) 9 AIR All 153 Banerji and Gokul Prasad JJ. held:
Where a prior mortgagee sues upon his mortgage, impleading the puisne mortgagee, and obtains a decree for sale, and the puisne mortgagee pays off and discharges the decree he thereby acquires, on the principle of Section 95 and Section 74, T.P. Act, a charge upon the property, which he can sue to enforce within 12 years of the date on which he made the payment. He is also entitled under the provisions of Section 69, Contract Act, to be reimbursed the money paid by the mortgagors and can sue to recover it from the mortgagors personally within three years of the date of his payment, under Article 61, Limitation Act.
10. This ruling goes the whole length in favour of the plaintiffs' contention. In Naubat Lal v. Mahadeo Prasad Singh (1929) 16 AIR All 309 it was held:
Until the sale is confirmed, it does not transfer the interest of the judgment-debtor to the auction-purchaser, and where in a case that interest is never transferred by the order of a Court, it cannot be said that the right of redemption had come to an end.
11. In Alam Ali v. Beni Charan (1936) 23 AIR All 33, the learned Chief Justice reviewed all the authorities on the subject. The principal question before the Full Bench was one of limitation. At p. 1298 the learned Chief Justice observed:
On the authorities therefore it must be taken to be established that the principle of subrogation was of more general application and had to be applied when equities had to be adjusted between rival mortgagees in the order of their priority.
12. Again at p. 1305 the learned Chief Justice remarked:
It seems to me that where a subsequent mortgagee redeemed a prior mortgage, he under Section 74 acquired only the rights and powers of the mortgagee and was entitled to bring a suit on the basis of the mortgage within 12 years of the mortgage. He acquires no fresh charge. But where a suit had already been brought on the original mortgage and had ripened into a mortgage decree, the mortgage merged in the decree and the powers and rights of the mortgagee decree-holder were those under the decree, which was alive at the time and which gave him a priority over subsequent incumbrances and entitled him to recover his amount by sale of the property without any bar of limitation. The payment of such a decree conferred on the subsequent incumbrances all the rights and powers of the mortgagee decree-holder as then subsisting though the procedure to be followed by him had to be different.
13. From an examination of the authorities it appears thai even before the amendment of 1929 the mortgagor's right to redeem continued till the confirmation of the sale. The amendment of 1929 gives express legislative sanction to that view. It has not the effect of making any alteration in the right of redemption which was repeatedly recognized in a long line of cases. Learned counsel for the appellants has relied upon Piare Lal v. Dina Nath (1939) 26 AIR All 190. This was decided by a Bench of which one of us was a member. In that case it was remarked:
A suit to enforce a mortgage charge by a person paying off the charge cannot be made in equity but can only lie under Section 92, T.P. Act, if the plaintiff comes within the meaning of that Section.
14. At p. 231 it was observed:
Another difficulty in the way of the plaintiff-appellant is that Section 92 uses language which appears to postulate an existing mortgage and not a mortgage which has merged in a decree.
15. At p. 230 the case in Shib Lal v. Munni Lal (1922) 9 AIR All 153 was cited and distinguished. It was then remarked:
In that ruling it was held that when a second mortgagee discharged a decree obtained by the first mortgagee, he acquired a charge on the mortgaged property as from the date upon which he made payment in satisfaction of the decree, as well as a right to be reimbursed by the mortgagor personally, but he was in no sense an assignee of either the mortgage or the decree. That case is to be distinguished from the present case because it is a payment by a mortgagee and the suit was brought against the mortgagor. In the present suit there is no one representing the mortgagor other than the plaintiff himself because he has acquired the equity of redemption of the mortgage by purchase at an auction sale. His suit for sale is therefore brought naming the former mortgagor as a party and the only defendant who is interested in making a defence is the subsequent mortgagee.
16. Several other cases following the view expressed in Shib Lal v. Munni Lal (1922) 9 AIR All 153 were also referred to and distinguished. The above case is thus not applicable to the case before us. An examination of the case law leaves no room for doubt that the plaintiffs are entitled to recover the money which they paid to have the sale set aside. The mortgage of 1918 was executed by Harbans Singh and Fateh Singh. Rs. 1318 was borrowed to pay off a decree obtained by one Mathura Prasad against Harbans Singh, Rs. 78 was borrowed to pay off a hand-note and Rs. 36 to satisfy a parole debt. Rs. 68 was borrowed for registration and household expenses. It would appear that most of the money was required to satisfy a decree. In the suit brought by the mortgagee for the enforcement of the mortgage, besides Fateh Singh, Udai Prakash, Om Prakash and the present plaintiffs were also impleaded. Udai Prakash was represented by a pleader, although he did not contest the suit. The decretal money was not deposited till Novembar 1926. This decree is binding on the contesting defendants unless it is shown that the guardian of Om Prakash was negligent or that Udai Prakash was a minor. In November 1922 Udai Prakash was certainly not a minor as held in the previous suit. In the written statement none of the defendants alleged that the decree is not binding on Om Prakash because of the negligence of his guardian. In the absence of any such allegation the appellants are not entitled to challenge the validity of the decree. In the Court below it does not appear that the decree was ever challenged. A minor is undoubtedly entitled to plead that he is not bound by a decree provided he lays foundation for such a plea. In the present case no such allegation has been made or proved. Learned counsel for the appellants contends that the mortgage on the face of it is not binding on the minor and therefore the decree obtained on foot of the mortgage should be treated as a nullity. As stated above the mortgage was executed by the father of the minor to pay off a decree obtained against him. Ordinarily it would be the pious duty of the son to discharge the debt incurred by his father. There is no doubt that in the previous litigation it was held that in 1915 Udai Prakash and Om Prakash should be deemed to have separated from Harbans Singh and Fateh Singh, but this decision was not available to the defendants in 1922. Harbans Singh and Fateh Singh soon after the appointment of Fateh Singh as guardian conducted themselves as members of a joint Hindu family.
17. In the circumstances it cannot be said that the omission to contest the suit was a patent negligence of which judicial notice may be taken by this Court. It was the duty of the defendants to raise this plea and as they have failed to attack the validity of the decree, we do not consider it just and proper to allow them to do so at this stage of the litigation. In our opinion, the defendants are bound by She decree and the decretal amount constitutes a valid charge on the property in suit. Learned counsel for the respondents has argued that the defendants cannot question the validity of the mortgage as a suit to set aside a transfer of property by a guardian must be instituted by a ward within three years of the attainment of majority (Art. 44, Limitation Act.) In support of this contention reference has been made to Dip Chand v. Munni Lal (1929) 16 AIR All 879 and Labhamal v. Malakram (1925) 12 AIR Lah 619. These cases were instituted by the erstwhile wards. In the present suit the ward is a defendant. In our opinion, it is open to the minor to challenge the transfer as a defendant and Article 44 will be no bar to such a defence. That Article only barred the remedy of the plaintiff to get the mortgage deed set aside but was not fatal to his title. This view is in full accord with the view expressed in Mohammad Raza Ahmad v. Zahur Ahmad (1930) 17 AIR All 858. We therefore do not accept the contention of learned Counsel for the respondents on this point. We have already held that as far as the mortgage of 1918 is concerned it merged in a decree which is binding on the defendants. It follows therefore that the defendants are bound to pay Rs. 4861-10-6 with pendente lite and future interest at 6 per cent, per annum.
18. The next question to be considered relates to the mortgage of 19th February 1920. We have held that Udai Prakash was not a minor at the date of the execution of this mortgage. Udai Prakash has not appealed from the decree of the Court below. Fateh Singh has also submitted to the decree of the Court below. Om Prakash who was undoubtedly a minor at the time is entitled to challenge the binding nature of the transaction and it is for the plaintiffs to prove that Om Prakash is bound by the mortgage. The bond was executed by Fateh Singh on behalf of Om Prakash. We have already held that Fateh Singh ceased to be a guardian of Om Prakash as soon as Udai Prakash became a major. Udai Prakash does not purport to execute the mortgage on behalf of Om Prakash. Under Hindu law the karta of a family can borrow money on the security of the joint property only for legal necessity or for the benefit of the family. Udai Prakash could not encumber any portion of the joint family property without legal necessity. We must therefore examine the transaction to see whether any legal necessity has been proved. The consideration of the mortgage deed is composed of four items.
19. The last item of Rs. 3568-6-0 is said to have been borrowed to meet the marriage expenses of Om Prakash minor. The remaining three items are for the payment of debts. Upon a consideration of the evidence we find no satisfactory proof on the record to prove any legal necessity with respect to the first three items. It follows therefore that the joint family property of Udai Prakash and Om Prakash cannot be held liable for the discharge of those debts. The marriage expenses however do constitute legal necessity provided they are reasonable. The payment of this sum by the mortgagees to the mortgagors is not disputed. The plaintiffs have led evidence to prove that Om Prakash was married within a few days of the execution of the mortgage. The "barat" went to Aligarh. The defendants' case is that Om Prakash was married some two years later and the expenses of the marriage were paid by an uncle of Om Prakash. Neither the uncle nor any of the executants have entered the witness box to prove the truth of these allegations. We have examined the evidence of the witnesses and we prefer to believe the statements of the plaintiffs' witnesses on this point. We are satisfied that Om Prakash was married a few days after the execution, of the bond and that the money was required for purposes of the marriage. It is urged that the family was not justified in spending so much money on the marriage of Om Prakash. The mortgagors belong to a respectable family. It is customary among Hindus of good social standing to spend substantial amounts on marriages. Part of the money spent is invested in ornaments and clothes for the bride; the rest is spent in feeding relations and friends. The "barat" had to go to another district at some distance. The travelling expenses must have been considerable. Taking all these facts into consideration we are unable to hold that the amount borrowed was extravagant. In arriving at this finding we cannot ignore the fact that it is considered a disgrace not to feed relations and friends on occasions of marriages. These notions may be unfortunate but they must be taken into consideration in estimating the expenditure which may be properly incurred in a marriage of a boy belonging to a high family.
20. In our opinion, therefore, Udai Prakash could hypothecate the family property for Rs. 3568-6-0. There is no specification of shares of Udai Prakash and Om Prakash. That being so, the joint share of Udai Prakash and Om Prakash in the ancestral part of the mortgaged property would be liable to discharge this debt. We do not however consider that the rate of interest stipulated in the mortgage was justifiable. The mortgagor offered good security and there was no reason to pay interest at the rate of Re. 1-4-0 per cent, per mensem with half yearly rests. In the previous litigation 15 per cent, per annum simple interest was considered reasonable. In the present case we hold that the rate of interest should be reduced to 15 per cent, per annum simple. Learned counsel for the plaintiffs-respondents has drawn our attention to para. 25 of the written statements of Udai Prakash and Om Prakash which show that two of the mortgaged properties, namely Dola and Basa Tikari were not ancestral properties of Udai Prakash and Om Prakash. In para. 25 of the written statement of Om Prakash it is stated:
Fateh Singh, Udai Prakash and Om Prakash have been transferring their property in the said villages separately and the share of Fateh Singh in Mauza Dola has long been sold by auction.
21. To the same effect is the written statement of Gandharap Singh. In view of this admission, it cannot be disputed that Udai Prakash had full authority to dispose of his share in the aforesaid villages irrespective of legal necessity. It is also apparent that Udai Prakash could not dispose of his minor brother's share in those properties. We partially allow the appeal and modify the decree of the Court below as follows. The plaintiffs' suit is decreed in full against the share of Udai Prakash in villages Dola and Basa Tikari. The plaintiffs' suit as against the mortgaged properties other than Mauza Dola and Basa Tikari is decreed as follows: (1) Rs. 4861-10-6 with pendente lite and future interest at the rate of 6 per cent, per annum; (2) Rs. 3568-6-0 at 15 per cent, per annum simple from 19th February 1920. A fresh decree will be framed by this Court under the provisions of Order 34, Rule 4 six months being allowed for payment by the defendants. Interest at the aforesaid rates will run until the date fixed for payment under this decree. The plaintiffs shall get their costs from Udai Prakash alone. The contesting defendants shall get their costs in proportion to their success from the plaintiffs.