A coparcener cannot alienate the joint family property without the consent of his coparceners unless it is for legal necessity or for the benefit of the estate.

1. - This is an appeal by the Nasirabad Urban Co-operative Bank Ltd., Nasirabad against the judgment and decree of the Senior Civil Judge, Ajmer, dated 30th April, 1962, decreeing the plaintiff's suit for declaration that the mortgage award and decree is not binding on the plaintiff and the joint family property and restraining the appellant from getting the properties sanctioned in execution of the award as a mortgage decree.

2. One Parasdas resident of Nasirabad died in May, 1911, leaving behind his widow Smt. Magnabai and two sons Seerchahand and Gyanchand. They all constituted a joint Hindu family and belonged in Ajmer-Merwara and are subject to the Mitakshara Law. On the 9th May, 1952. Smt. Magna Bai mortgaged one bungalow and ice-factory, which was the joint family property which had come to the share of Parasdas on partition between him and his brother, with the appellant Bank as security against over-drafts on the Bank to the extent of Rs. 10,000/-. On a dispute having arisen between Magna Bai and the Bank, the matter was referred to arbitration under the provisions of the Co operative Societies Act and as award was given in execution of which the mortgaged properties were, put to sale. Beerchand son of Magns Bai was one of the sureties for for the repayment of the loan for which the properties were mortagaged. The second son of Parasads, that is, Gyachand, on attaining majority and having come to know of the mortgages instituted this suit for declaration that the said mortgage was not binding Upon the joint family properties and was void and further in the mortgage decree the joint family properties were not liable to be sold. The appellant contended the suit and pleaded that Magna Bai had taken the loan for running the joint family business and as such it was binding upon the joint family property. It was further stated that Beerchand defendant No. 2 who had stood surety was bound to repay the loan and as such no relief could be granted to the plaintiff so far as ⅓rd share of Beerchand in the joint family property was concerned. Bar of limitation was also pleaded.

3. The learned Senior Civil Judge on the above pleadings framed the following issues:

1. Did the defendant No. 1 execute the mortgage in question for the needs of the joint family business carried on in the name of 'Parasdas and sons'? If so, is the mortgage duly binding upon the plaintiff?

2. Is the suit within limitation?

3. Was the mortgage of the suit property accepted on defendant No. 2 standing surety for the account, If so, how does it affect the suit?

4. Is the suit collusive?

5. Has defendant No. 1 one-third share in the suit property and therefore the plaintiff cannot question the mortgage dead in question to that extent?

6. What relief?

4. In support of the issues Gyachand gave his own statement and examined one witness Murarilal. The Bank in rebuttal examined Keshari Mal D.W. 1, Pokarmal D.W. 2, Onkar Nath D.W. 3. Manohar Lal D.W. 4 and Jaskaran D.W. 5 to show that the loan was taken by Magnabai for running the ancestral business.

5. The learned Judge on a consideration of the evidence and the law cited before him came to the finding that there was no legal necessity for Magna Bai to take the loan in lieu of which the joint family property was mortgaged. It was surther held that the suit was within limitation, The learned Judge further held that that the mortgage was not also valid to the extent of Beerchand's one-third share. He also held that the entire transaction of mortgage was void As a result of these findings, a decree in the terms above-mentioned was passed in favour of the plaintiff.

6. Learned counsel for the appellant has contended (1) that the mortgage effected by Magna Bai is valid and binding upon the joint family property because the loan was taken by her for legal necessity, that is, for the needs of the ancestral business and (2) that in any event the mortgage was valid to the extent of one-third share each of Magna Bai and Beerc