A debt contracted by a father without legal necessity or family benefit is not void, but voidable at the option of his son.

( 1 ) THIS appeal is from the judgment of our learned brother, Sambasiva Rao. JJ. , given in A. S. No. 267 of 1965, whereby the learned Judge allowed the appeal filed by the 4th defendant against the trial Court s decree in O. S. No. 52 of 1962, and exonerated him from the liability under the mortgage and substituted plaint B Schedule property as security for A Schedule property.

( 2 ) THE material facts leading to this Letters Patent Appeal may briefly be stated; Defendant No. 1 is the father of defendants 2 and 3 and karta of the joint family comprising of himself, his sons, and a coparcener, defendant No. 4. For the marriage of his minor son, defendant No. 2, the 1st defendant borrowed and received Rs. 13,000. 00 from the plaintiffs and as security, mortgaged plaint A schedule properties. At a family partition, a part of the A schedule properties, which was the subject-matter of mortgage, fell to the share of defendant No. 4, and B schedule property to defendant No. 1. The plaintiffs filed O. S. No. 52 of 1962 in the Court of the Subordinate Judge, Narasaraopet for the recovery of the money due under the mortgage and for substitution of B schedule property for A schedule property.

( 3 ) DEFENDANT No. 1, inter alia, contended that, in O. S. NO. 72 of 1953 the 4th defendant was held liable for defendant No. 1 s debts and therefore all the defendants are liable for the debt. Defendant No. 4, on the other hand, contended that the debt was neither for legal necessity nor for family benefit, and was not binding on him. Both of them objected to the substitution of B schedule property as security for A schedule property.

( 4 ) DEFENDANTS 2 and 3 remained exparte.

( 5 ) THE trial Court decreed the plaintiffs suit.

( 6 ) AGGRIEVED by the judgment of the trial Court, defendant No. 4 filed an appeal to this court. Our learned brother, Sambasiva Rao, J. Before whom the appeal came up for consideration, held that the debt contracted by defendant No. 1 as Karta of the family was neither for legal necessity nor for family benefit, and therefore, defendant No. 4 was not liable for payment of that debt and, in that view, exonerated defendant No. 4 from his liability. To pay the detb.

( 7 ) THE correctness of the judgment of our learned brother is challenged in this Letters Patent Appeal before us, by defendants 1 and 2.

( 8 ) THE counsel for the respondents- plaintiffs raised a preliminary objection that the appeal is not maintainable, in law. Since defendants 1 and 2 had not filed an appeal to this Court against the judgment of the trial Court, this Letters Patent Appeal must be considered as an appeal direct to the Letters Patent Court against the trial Court s judgment. Such an appeal cannot be filed under the provisions of the Civil Procedure Code.

( 9 ) ORDER XLI, Civil Procedure Code lays down the rules of procedure relating to appeals from original decrees. Order 42, Rule 1, C. P. C. says that so far as may be rules in Order XLI, C. P. C. shall also apply to appeals from appellate decrees.

( 10 ) ORDER XLI, Rule 4, C. P. C. , provides that, where there are more plaintiffs or defendants than one in the suit, and the decree appealed from proceeds on a ground common to all the plaintiffs or the defendants, any one of the plaintiffs or the defendants may file an appeal against the whole decree and the appellate Court may reverse or vary the decree in favour of all the plaintiffs or the defendants, as the case may be.

( 11 ) ORDER XLI, Rule 33, C. P. C. provides that in an appeal filed before it against the decree of the trial Court, the appellate Court has power to pass a decree or made an order which ought to have been passed or made by the trial Court and such a power may be exercised in favour of any of the respondents or parties although such respondents or parties may not have appealed or filed cross-objections.

( 12 ) IN the present, case there were four defendants. The suit was decreed by the trial Court against al