A mortgage by the Karta of a joint Hindu family is not void ab initio even though it may turn out later that it was not for legal necessity or in lieu of an antecedent debt. It is only voidable at the instance of other coparceners.

WANCHOO, C.J. :- This is an appeal by Shri Indernath Modi against the judgment and decree of the District Judge, Jodhpur, which had come up for hearing once before, and some of the points in dispute were decided on the 7th of October, 1952. That judgment will be treated as a part of the present judgment. The facts are all given in that judgment and it is not necessary to repeat them in detail here. Suffice it to say that the suit by the plaintiff-appellant was for recovery of possession on the basis of a mortgage said to have been made by one Nandram and his brother Achlu on Baisakh Badi 7, St. 1975 (22nd April, 1919). After the mortgage, Nandram executed a lease in favour of the mortgagee and remained in possession as a tenant.

The original mortgagee Jainarain however sued Nandram on his failure to pay the rent, and got a decree for ejectment and obtained actual possession by execution on the 19th of November, 1931. Thereafter, there was trouble between Jai Narain and Mst. Sarupi, mother of Nandram.

She had taken possession of the house by trespassing on it, and Jainarains attempts to oust her through the criminal Courts failed. She died in 1942, and thereafter Nandram and his two sons remained in possession of the house. In the meantime Jainarain transferred his rights to the father of the present appellant in 1944, and that is how the present suit was brought. It may be added that one of the houses mortgaged has already been sold, and the present suit is only about the other house. 2. The suit was filed against Nandram and his two sons Gauri Shanker and Jagdish. Nandram and Gaurishanker did not contest it and it was Jagdish alone who contested the suit. The main contentions of Jagdish were two-fold, namely that the suit was barred under the provisions of O. II, R. 2, C. P. C., and on the principle of res judicata and that the mortgage was without legal necessity, and had not been made in lieu of an antecedent debt, and was therefore not binding on Jasdish. It may be added that Jagdish was not born when the mortgage was executed, but sometime afterwards.

3. When the matter first came before this Court the plea raised under O. II, R. 2, and on the principle of res judicata by the respondent was negatived. Some other minor points raised on behalf of the respondents were also decided, but as this Court was of opinion that certain material issues had not been framed, it framed the following six issues and remanded the suit to the Court below for decision of those issues :

1. Is the property in dispute ancestral?

2. Did such members of the family as were alive on the date of the mortgage form a joint Hindu family with Nandram as their Karta?

3. Has Jagdish a right to challenge the alienation on the ground that though born after the alienation he had come into being before the right of the last member (who was alive at the time of the mortgage) to challenge had become extinguished?

4. Was the alienation made for legal necessity?

5. Was the transfer made in lieu of antecedent debt?

6. Whether there was partition between Nandram and Achlu and this property came to Achlus share? If so, what is its effect?

4. The findings on remand on the various issues have now been given. It was found that the property in dispute was ancestral, and that the family was joint on the date of the mortgage with Nandram as Karta. Jagdishs right to challenge the alienation was negatived. It was also held that the alienation was for legal necessity, and in lieu of antecedent debt. Lastly, it was held that there had been a partition between Nandram and Achlu and this property came to the share of Achlu. Consequently Jagdish could not, in any case, challenge the alienation after the partition.

5. The findings on issues 3 to 6 have been challenged on behalf of the respondent before us. So far as the findings on issues 1 and 2 are concerned, there was no dispute in the Court below between the parties. We have heard learned counsel for the parties on issue No. 6 r