Judgment

AYYANGAR, J. : This appeal is directed against the judgment of the High Court of Kerala and has been filed on the strength of a certificate of fitness granted by the High Court under Art. 133(1)(a) of the Constitution.

2. The appeal arises out of a suit filed by the respondent - The Chaldean Syrian Bank Ltd. - which for shortness we shall refer to as the Bank for the recovery of certain sums due on a mortgage by deposit of title executed by Kalayanasundaram Pillai - the appellant s father who was impleaded as the 1st defendant and is now the 2nd respondent before us.

3. The mortgage on which the Bank laid this suit was evidenced by Ex. E a memorandum recording the deposit of title deeds of certain properties in the former Princely State of Cochin. The debt for which the said deposit was made was the principal and interest due on two promissory notes for Rs. 50,000/- and Rs. 30,000/- respectively which were marked as Exs. A and B in the case. It was not in dispute that the property which was the subject of mortgage belonged to the joint family composed of the 1st defendant and his son - the appellant. The appellant was a minor on the date of the suit transaction and even at the date of the suit. To the suit that it filed the bank impleaded not merely Kalyanasundaram and his minor son, but the latter s sisters and mother and even the lessees of the mortgaged property. These were defendants 3 to 11. They, however, have dropped out of the proceedings at earlier stages and the only parties to the appeal whose rights we are called on to adjudicate are the Bank and the appellant. The Bank s suit was decreed by the trial court against the father - 1st defendant and there was no appeal against it and that decree is no longer in challenge. The trial Judge however held that the Bank had no right to obtain a mortgage decree against the appellant and his half share in the family property, but on appeal by the Bank, the learned Judges allowed the appeal and modified the decree by passing a mortgage decree against the appellant qua his share as well. It is the correctness of this variation that is questioned in this appeal.

4. The execution of the promissory notes and the receipt of consideration therefore as recited therein were admitted by the 1st defendant, as also the creation of the security by the deposit of the title deeds of properties and whatever contentions were raised in respect of these matters on behalf of the appellant have now been abandoned. Some point was made on behalf of the appellant regarding the suit debt being avyavaharika, but this also has been found against and given up. The only question that survives is whether the mortgage evidenced by Ex. E is binding on the appellant. Here again it is now common ground that the debt was a personal borrowing by the father, not for any purpose binding on the joint family.

5. A few more facts have to be stated in order that the precise range of the controversy in this appeal might be properly understood. That Kalyanasundaram and the members of his family were permanent residents of Palghat in the then State of Madras, that he with the appellant formed members, of an undivided Hindu family and that the properties which were the subject of the mortgage were joint family properties, none of these were in dispute. The family possessed properties not merely in Cochin but also in Palghat.

6. We shall now proceed to detail the circumstances in which the borrowings which has given rise to this litigation were made. In or about May 1945 Kalyanasundaram entered into a contract with the Government of India for the supply of 100 tons of black pepper and also into further contracts of the same type later in the year. He had apparently no ready cash to implement these contracts and approached the Bank for funds for financing the undertaking. For this purpose he executed three promissory notes in favour of the Bank for a total of Rs. 1,10,000/-. The Promissory notes marked Exhibits A and