Recitals of legal necessity in a mortgage deed executed by the father or manager of the joint Hindu family are admissible in evidence, but they require corroboration by evidence aliunde.

P.N. Shinghal, J.-This second appeal has been preferred by Ramrichpal, defendant No 2, against the appellate judgment and decree of the learned District Judge of Bikaner, dated July 21, 1959. The dispute is like this.

2. Ramrichpal is the son of the other defendant Bhaironsingh. They owned ancestral immovable properly which was situated in an important locality in the city of Bikaner- The Bikaner Stores Supply and Trading Company, which was a partnership firm and of which Rawatram was one of the partners, advanced a loan of Rs 5,000 to Bhaironsingh on January 10, 1952 under a mortgage. The mortgagee was shown to be Rawatram and it was agreed that the mortgage money would be repayable at the stipulated rate of interest The loan was advanced for completing the construction of the above mentioned property which, It appears, was a ‘kacha’ structure and for the reconstruction of which Bhaironsingh took loans from time to time, the suit loan being the third loan. Bhaironsingh did not repay the loan and so the present suit was instituted on January 18, 1955, for the recovery of Rs. 5,000 on account of principal and Rs. 1,832 by way of interest, making a total of Rs. 6,832. Both the Bikaner Stores Supply and Trading Company as well as Rawatram were joined as plaintiffs in the suit and it was clarified in paragraph 2 of the plaint that even though Rawatram was a partner of the firm, which carried on the business of money lending in addition to its other business, the real mortgagee was the Company and that the mortgage deed was executed in favour of Rawatram by way of a formality and that he had been impleaded as a plaintiff for the purpose of avoiding unnecessary objections. The suit was initially instituted against the original mortgagor Bhaironsingh, but his son Ramrichpal, the present appellant, was impleaded as the other defendant, at his own request. He was a minor and his mother was therefore appointed to be his guardian ad item. It may also be mentioned that the plaintiffs took the plea that the loan had been advanced for the benefit of the joint family of the defendants.

3. Both the defendants denied the execution of the mortgage deed (Exhibit 1) and the taking of the loan from the plaintiffs. Issues wore framed on the question of the execution of mortgage deed Exhibit 1, the right of the Bikaner Stores Supply and Trading Company to bring the suit and on the important question whether the loan had been taken by Bhaironsingh for the benefit of the family or for legal necessity. The Civil Judge of Bikaner, who tried the suit held that the plaintiff had succeeded in proving the execution of the mortgage deed as well as the payment of the consideration, but he held that the loan had not been taken for family necessity or for the benefit of the estate. He therefore granted a personal decree in favour of plaintiff Rawatram against defendant Bhaironsingh. Both the parties preferred their appeals to the District Judge of Bikaner. That learned Judge upheld the trial Court’s finding regarding the execution of the mortgage deed as well as the payment of the consideration, and these findings are not now assailed before me. He however held that the loan had been taken for family necessity in order to complete the construction which was lying unfinished and that this

amounted to a benefit to the family estate. Accordingly the learned District Judge allowed the appeal of the plaintiffs and passed a. preliminary decree for sale against both the defendants and in favour of both the plaintiffs. It is in these circumstances that the present second appeal has been filed by defendant Ramrichpal against the judgment and decree of the learned District Judge dated July21. 1959.

4. It may be mentioned that Rawatram, plaintiff No. 2 and Bhaironsingh, defendant No. 1, died during the pendency of this appeal, Bhaironsingh’s legal representatives have already been brought on the record and there is no dispute on that point. Rawatram, however died