L.S. MEHTA, J.—This appeal emerges out of the judgment of learned Senior Civil Judge, Kishangarh, dated September 8, 1959

2. The Chamber of Commerce Ltd. Madanganj, Kishangarh, filed a suit in the court of Senior Civil Judge, Kishangarh, on November 15, 1956. Thereafter certain amendments were made in the plaint. The final plaint is dated February 26, 1958. The averments in the plaint are that one Kishan Gopal deceased mortgaged his house, situated in Mgdanganj, Kishangarh, with the plaintiff. The details of the property are given in para No. 2 of the plaint. The property was mortgaged on January 15, 1945, for a sura of Rs 25,000/-, with interest at the rate of annas seven per cent per month. The same property was again mortgaged with the plaintiff for an additional sum of Rs. 2,000/-, on April 23, 1945, at the above rate of interest. Thereafter Kishan Gopal died. Defendant No. 1 Shri Narayan is the minor son of the deceased. Defendant No. 2. Smt. Kailash Kanwar is his widow. They being the heirs and legal representatives of the deceased mortgagor are, according to the plaintiff, liable to make payment of the mortgage amount. Defendant No. 3 was the prior mortgagee of the property. He after having obtained a decree, transferred his right to recover the amount in favour of defendants Nos. 4 and 5. This very property was subsequently mortgaged with defendants Nos. 5, 6, 7, and 9 and, therefore, they have also been made parties to the suit. Kishan Gopal made payment of Rs. 4459/4/9 from time to time towards the interest of the mortgage-amounts upto Mah Badi 2 Smt. year 2004. After the demise of Kishan Gopal, defendants Nos. 1 and 2 also made payments of Rs. 50/-, on February 9, 1951, and Rs. 25/-, on February 5, 1954 on account of interest. Notices were given to the defendants Nos. 1 and 2 to clear off the debts, but that was not done. The plaintiff, therefore, was constrained to bring the present suit for the recovery of Rs. 27,000/-, as principal and Rs. 12719/12/- on account of interest.

3. The contesting defendants Nos. 1 and 2 submitted their written statement on January 8, 1958. They contended that the mortgage-deeds were not properly executed, nor were they validly attested according to law. It was also averred in the written statement that the mortgaged property was an ancestral one and that Kishan Gopal had no authority to mortgage it or to take lone on its security without any legal necessity. It was further contended that the suit was beyond time and that Kishan Gopal was edicted to gambling. The rest of the defendants did not contest the suit.

4. On February 3, 1958, the trial court framed 7 issues. The plaintiff examined 8 witnesses. The defendants did not produce any oral evidence. The trial court by its judgment, dated September 8, 1959, decreed the plaintiffs suit against defendants Nos. 1 and 2 for the amount sued for together with interest at the stipulated rate from the date of the suit till the date of the payment or the deposit of the amount in the court within six months, failing which the plaintiff was held entitled to pray for realisation of the money by sale of the mortgaged-property. Further interest was also allowed at the rate of six per cent per annum after the expiry of the period of six months.

5. Aggrieved against the above judgment and decree, defendants Nos. 1 and 2 have filed the present appeal. Learned counsel for the appellants raised the following points in the course of his arguments—

(1) That the trial court went wrong in holding that the mortgage deeds Exs. 1, 2, 3 and 29 have been duly proved;

(2) that the trial court fell in error in not agreeing with the defendants contention that the original mortgagor Kishan Gopal was edicted to speculation and, therefore; the debt being Avyavaharik is not recoverable from the appellants;

(3) that issue No. 5 was wrongly framed and, therefore, the case should be remanded to the trial court; and

(4) that the mortgaged property being ancestral, the burden of pr

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