MODI, J.—This is a first appeal by the plaintiff Laxminarain against a judgment of the learned District Judge, Bikaner, dated the 6th December, 1950, in a suit for recovery of mortgage money.

2. The plaintiffs case was that the defendant Shankerlal vs. the Karta of a joint Hindu family consisting of himself and his minor son Bhanwarlal who is the contesting respondent, borrowed a sum of Rs. 25,000/- from the former as a security for which the defendant Shankerlal made a mortgage of his house situate in Sonaron-ka-Moholla near Naya Kuwa in Bikaner city by means of a registered mortgage deed the 29th December, 1947. It was agreed between the parties that cut of the consideration of Rs 25,000/- for the mortgage, the sum of Rs. 1,000/- would not carry any interest, and the balance of Rs. 24,000/- was to bear interest at the rate of ten annas percent per mensem. As the house was in the actual possession of certain tenants, the defendants executed a rent-note in favour of the plaintiff for a sum of Rs. 150/- p. m. The defendants failed to pay the mortgage money together with the interest due, and so the plaintiff brought the present suit for recovery of the principal sum of Rs. 25 000/- and a further sum of Rs. 1731/4/- as interest, the total amount thus coming to Rs. 26731/4/-. As the defendant Shankarlal had made a further mortgage in respect of the house in question in favour of one Mangal Chand son of Hazari Mal for a sum of Rs. 1600/- on 5.11.1948, the plaintiff also made him a party to the suit. Defendant Shankerlal and Mangal Chand allowed the suit to proceed ex parte against themselves, and the suit was resisted by a guardian-ad-litem on behalf of the minor defendant Bhanwarlal only. It was contended on behalf of this defendant that the mortgage property was ancestral and that Shankerlal had executed the suit mortgage without any legal necessity and for no benefit of the family. It was further contended that defendant Shankerlal was a gambler and a wastrel and was addicted to taking intoxicants and an evil character, and that if at all he incurred the loan in order to pay off any debts, they were immoral and tainted debts and therefore, they were not binding on the ancestral property of the family, and, in any case the minor defendant Bhanwarlal was not liable to pay them or to have his share of the family property sold to pay them. It was also contended that the relations of defendant Shankerlal were extremely strained with the minors mother and it was on that account that Shankerlal had incurred the alleged loan in order to ruin the minor defendant and his mother.

3. The learned District Judge had found that out of the total consideration of Rs. 25,000/- defendant Shankerlal really received amounts to the tune to Rs. 23,067/7/- only. The balance of Rs. 1932/9/- was held not proved to have been received by Shankerlal. The learned Judge accordingly passed a preliminary decree against defendant No. 1 under Order XXXIV, Rule 3 CPC. The learned Judge further found that the plaintiff had totally failed to prove any legal necessity for the major part of the loan alleged to have been advanced by him to the defendant Shankerlal as specified in Ex. P-2, that is, the deed of mortage in the plaintiffs favour dated 29th December, 1947. His conclusion also was that this debt was for the most part immoral having been contracted for Satta and gambling purpose and was therefore, an immoral and illegal debt, and consequently defendant Bhanwarlal was held not liable for the suit debt and his share of the mortgaged property viz, one half, was declared as not liable to sale for recovery of the mortgage money. The plaintiff has appealed from the above judgment and decree of the trial court.

4. It has been contended before us by learned counsel for the plaintiff appellant that the court below has approached the whole case from an entirely wrong angle and that it completely mis-directed itself as to the law applicable to the case, and, therefore, it

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