Sir Dinshah Mulla.-

This is an appeal from a judgment and decree, dated 10th November 1926, of the High Court at Allahabad which varied a judgment and decree, dated 31st July 1923, of the Subordinate Judge of Bareilly. On 20th December 1905, Munshi Inder Sahai executed a mortgage of his share of a village situated at Bareilly to secure payment of Rs. 7,000 to him by Rai Kishun Lal on interest at the rate of 7-annas per cent per mensem. The mortgage was one with possession, and the mortgagee was put in possession of the property on the same day. The mortgage was for a term of five years. On 15th June 1906, the mortgagor executed a document called zamanatnama (security bond) by which he created a charge on two other properties, the charge to operate if the property mortgaged by the deed of 1905 was found to be insufficient for payment of the mortgage debt in full. It was stated in the document that both these properties belonged to the mortgagor.

Some time thereafter the mortgagor died leaving him surviving two sons, who are respondents 1 and 2 before the Board, and a widow, who is respondent 3. After his death the mortgagee obtained a decree on 26th April 1909, against heirs of the mortgagor for Rupees 679-6 6, being the balance of interest due up to 2nd January 1909, and recovered the amount from them. Respondents 4 to 7 are the heirs of the mortgagee, and the appellant is the transferee of their interest in all the properties. Respondent 8 held a lease of part of the mortgaged property from respondents 4 to 7 at an annual rent of Rs. 150. The lease expired some years ago, but it was alleged that a fresh lease had been granted to him by respondents 1 to 3. Respondents 9 to 12 are transferees of the interest of respondents 1 to 3 in some of the properties: On 20th December 1922, the appellant brought the suit out of which the present appeal arises in the Court of the Subordinate Judge of Bareilly against the respondents to enforce the mortgage by sale of all the three properties. The amount claimed was Rs. 14,000, of which Rupees 7,000 was for principal, and the balance for interest.

In their written statement, respondents 1 and 2 averred that “the mortgaged property” was ancestral, and that there was no necessity for the loan. They also pleaded that the mortgage debt had been paid out of the rents and profits of the mortgaged property, and that nothing was due to the appellant. Respondents 4 to 7 also filed a written statement alleging that they had transferred their interest to the appellant, and that they were wrongly joined as defendants to the suit. Several issues were framed by the Subordinate Judge of which the following three only are now material:

“2. Whether the mortgaged property was the ancestral property of Inder Sahai, and whether the debt was incurred for legal and family necessity and binding on the sons of Inder Sahai.”

“6. Whether the bond is paid up by the usufruct of the property.”

“10. Whether the plaintiff is entitled to any relief, and if so, under what terms and conditions.”

Several witnesses were examined on both sides. The trial Judge found on issue 2 that the mortgaged property was not ancestral. He treated the issue as one confined to the property mortgaged by the deed of 1905. He found issue 6 in the negative, and declared that the amount due under the mortgage was Rs. 14,000 to which he added Rs. 766 for costs, and a further sum of Rupees 935-10-8 for interest calculated at the rate of 6 per cent per annum on Rupees 14,000 from the date of suit up to 31st January 1924, being the date fixed for redemption. In the result he passed a decree for sale of the properties comprised both in the mortgage deed and the zamanatnama.

Respondents 1, 2 and 3 appealed to the High Court at Allahabad. The learned Judges of the High Court agreed with the trial Judge on his finding that the property mortgaged by the deed of 1905 was not ancestral, but held, differing from him, that the properties included in the zamanatnama we