Accordingly, the appellant obtained an order for stay of sale of the property.
41,000/ was paid to him by cheque.
The trial Court raised several issues, of which issues Nos.
Appeal from the judgment and decree dated January 3, 1961 , of the Punjab High Court Circuit Bench at Delhi in Civil Regular First Appeal No.
I had numberice of the same?
2 and 3 only are material.
63 D/1957.
They are as follows Whether the mortgage in dispute is for companysideration and legal necessity, if number to what effect?
A Full Bench of the High Court gave the following answer In the case of a Hindu joint family companysisting of a father and sons when a mortgage has been created by the father of joint property, and a decree has been obtained on the basis of the mortgage, the only ground on which the sons can challenge the mortgage and the decree is that the debt was incurred for illegal or immoral purposes and that for this purpose it is immaterial whether the mortgaged property has actually been brought to sale in execution of the decree or number.
At the hearing of the appeal, a Division Bench of the High Court referred to a larger Bench the following question of law Whether when a mortgage has been created on joint family property by a father who companystitutes a joint Hindu family along with a son or sons, and a decree has been obtained by the mortgage on the basis of the mortgage, it is open to a son to challenge the mortgage and the decree merely on the ground that the debt was incurred without legal necessity, or whether be must prove that the debt was incurred for illegal or immoral purposes.
Murari Lal denied that he ever carried on business after his fathers death which took place in 1906.
219 of 1952 against Murari Lal claiming the usual preliminary decree for sale of the property.
Part of the loan was borrowed by Murari Lal for discharging an antecedent mortgage debt.
212 of 1952.
On April 20,1953, Harnam Kaur obtained a preliminary decree for sale in Suit No.
Faqir Chand filed an appeal to the Punjab High Court.
On July 4, 1952, Harnam Kaur instituted Suit No.
The endorsement of the Sub Registrar on this deed described him as saraf by occupation.
The appeal was thereafter heard by another Division Bench, and in the light of the decision of the Full Bench, the Division Bench dismissed the appeal.
The testimony of Baburam, Manohar and Sukhpashi Lal shows that Murari Lal was carrying on business in silver and gold lace.
572 of 1963.
The appellant, Sitaram, Ram Sarup and Prabhu Dayal support him.
Thereafter, Faqir Chand obtained an order for amendment of the plaint in his suit and by the amended plaint he claimed a declaration that the decree passed in the mortgage suit was number binding on him.
75,000 was thus taken by Murari Lal partly for payment of antecedent debts and partly for purposes of his family business and other legal necessities.
The object of the suit and this appeal is to prevent the sale of the mortgaged property in execution of the mortgage decree.
The mortgage deed dated June 7, 1949 stated that the occupation of Murari Lal was silver and gold business.
By a companyenant in the mortgage deed, Murari Lal bound himself to repay the loan.
The mortgaged property belongs to the joint family.
At the trial, companyncel for Faqir Chand companyceded that the mortgages were number for illegal or immoral purposes and gave up issue No.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
The trial Court did number decide the question whether the mortgage was made for legal necessity.
The deed of partition between Murari Lal and Ram Sarup dated December 14, 1939 recited that Murari Lal was by occupation a sarafa and rentier.
Whether the previous mortgages were for illegal and immoral purposes, and purposes repugnant to good morals and whether defendant No.
2, his companynsel companyceded that there was companysideration for the mortgage.
We are enable to accept the testimony of Murari Lal and other witnesses that Murari Lal did number carry on any business since 1906.
By an order of the High Court, the execution of the decree was stayed pending the disposal of the appeal.
Faqir Chand number appeals to this Court under a certificate granted by the High Court.
With regard to issue No.
It held that as Harnam Kaur had obtained a decree in the mortgage suit, Faqir Chand companyld number challenge the mortgage and the decree in the absence of proof that the mortgage was created for an ille gal or immoral purpose and as he companyld number challenge the mortgage, he companyld number claim any other companysequential relief.
L. Gosain, Kartar Singh Chawla and Harbans Singh, for respondent No.
T. Desai and B. P. Maheshwari, for the appellant.
Harnam Kaur took steps for the execution of the decree.
On March 13, 1953, Faqir Chand instituted the present suit against Harnam Kaur and also Murari Lal claiming a declaration that the mortgage deed was for immoral and illegal purposes and without legal necessity and was number binding on him and for companysequential reliefs.
75,000 from Sardarni Harnam Kaur, and by a registered deed of the same date, he mortgaged an immovable property for securing repayment of the loan.
On June 7, 1949, he borrowed Rs.
The Judgment of the Court was delivered by Bachawat, J. Murari Lal is the manager of a joint family companysisting of himself and his son, Faqir Chand.
