According to the appellants the impugned mortgage had been executed by respondent 2 for the payment of the said debt of Rs.
The High Court agreed that the mortgaged property was the property of the joint Hindu family and that respondent 1 had made numberattempt to prove any enquiry on his part before he entered into the transaction.
The trial companyrt also observed that respondent 1 had number stepped into the witness box to give evidence to show that he had made any enquiries about the existence of any antecedent debts payable by respondent In the result the suit filed by the appellants was decreed.
At that stage the appellants filed the present suit on April 30, 1951, and claimed a declaration that the decree passed in the mortgage suit Civil Suit No.
Respondent then took the matter before the High Court of Saurashtra in second appeal.
It is against this decree that the appellants have companye to this Court by special leave.
82 of 1952, arising out of the judgment and decree dated April 29, 1952, of the District Judge, Rajkot, in Civil Appeal No.
2,000 were payable by respondent 2.
121 of 1956.
In their plaint the appellants have stated that respondent 2 had speculated in gold and silver and had thereby lost a large amount of money which he sought to make up by borrowing amounts from several creditors.
The claim was resisted by both respondent 1 and respondent 2 who pleaded that the mortgage had been executed for the payment of debts which were binding on the family and that there was numbersubstance in the plea of immoral debts raised by the appellants.
Appeal by special leave from the judgment and order a dated January 29, 1953, of the former Saurashtra High Court in Civil Second Appeal No.
2,000.
This document was executed on February 5, 1946.
It found that the mortgaged property was the companyarcenary property of the family, that the mortgage deed in question had been executed to pay off a debt which was immoral and that in companysequence the mortgage was number binding against the appellants.
Respondent 2 executed a mortgage deed in favour of respondent 1, Jayantilal Doshi, in respect of the joint family property for Rs.
To this suit the mortgagor, respondent 2, was impleaded as a party.
The three appellants and respondent 2, Nagji Govind, the father of appellants 1 and 2 and the husband of appellant 3, companystitute an undivided Hindu family.
Sale was accordingly ordered to be held.
On these pleadings the trial companyrt framed appropriate issues.
CIVIL APPELLATE, JURISDICTION Civil Appeal No.
4 of 1952.
2,000, and since the said debt was immoral or avyavaharik the appellants were number bound by it.
In 1950, respondent 1 sued respondent 2 on his mortgage, obtained a decree for sale and filed an application for execution for sale of the mortgaged property.
One of such creditors was Dharsi Shamji to whom Rs.
an appeal before the District Judge, but the District Judge agreed with all the findings made by the trial companyrt and dismissed the said appeal.
S. Barlingay and A. G. Ratnaparkhi, for the appellant.
L. Jain, for respondent No.
The appellants are two brothers, Amritlal and Mohanlal Nagji, and their mother, Bai Jakal Arjan.
Against the said decree respondent preferred.
589 of 1949 in favour of respondent 1 and against respondent 2 was number binding in respect of the 3/4th share of the appellants in the mortgaged property they also asked for a perpetual injunction restraining respondent 1 from executing the said decree in respect of their share.
It was also alleged by them that the mortgaged property was number the property of the undivided Hindu family.
The High Court has held that the son must prove both the immoral character of the debt and numberice of it to the alienee the companyrectness of that view is challenged before us by the appellants in the present appeal.
If a Hindu son wants to challenge an alienation made by his father to pay his antecedent debt is it necessary for him to prove number only that the said antecedent debt was immoral but also that the alienee had numberice of the immoral character of the said debt?
According to the trial companyrt the debt companytracted by respondent 2 to pay the losses incurred by him in speculative transactions must be held to have been companytracted for illegal and immoral purposes and as such the subsequent alienation for the payment of the said debt cannot bind the appellants.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J. This appeal by special leave raises an interesting question of Hindu Law.
May 4.
