The expenses incurred in defending a criminal case against the karta of a joint Hindu family are not avyavaharika debts and are binding on the sons.

P. V. B. RAO, J.

( 1 ) THIS appeal in forma pauperis is filed by the plaintiff against the judgment arid decree of the learned Additional Subordinate Judge of Puri dismissing the suit for a declaration of his rights to the suit properties and for setting aside the mortgage decree and the court sale in favour of defendants 7 and 8 and for delivery of possession or in the alternative for a claim of Rs. 16,000/- against all the defendants.

( 2 ) THE plaintiff's case is, briefly as follows: The suit properties were the ancestral properties of the plaintiff and his father defendant 9, and the latter mortgaged these properties to defendants 7 and, 8 for Rs. 3200/- on 18-9-36. A suit for sale was filed by defendants 7 and 8 against defendant 9 on the said mortgage bond without impleading the plaintiff in Original Suit No. 9 of 1939 in the Court of the subordinate Judge, Puri and in execution of the mortgage decree the suit properties were purchased by the decree-holders for a sum of about Rs. 4000/ -. The plaintiff alleges that the above said mortgage was not for legal necessity; that defendant 9 made false recitals in the mortgage deed; that the properties were mortgaged by defendant 9 for expenses incurred for his immoral habits and illegal purposes; that the properties at the time of sale were worth its. 20,000/-but were sold for the above amount of Rs. 4000/-; and that defendants 7 and 8 did not implead the plaintiff in the mortgage suit. Consequently the plaintiff contends that the mortgage decree is not binding on him and that defendants 1 to 6 who purchased those properties from defendant 8 as they fell to his share in a partition between defendants 7 and 8 with full knowledge of the collusive decree and illegal mortgage are bound to restore possession of the same to plaintiff.

( 3 ) DEFENDANTS 1 to 6 and 8 contested the suit. They contended that the mortgage suit was filed against defendant 9 only as he was the manager or the family; that the mortgage was executed for legal necessity and was not tainted with any illegality or immorality; that defendant 9 originally contested the mortgage suit but afterwards became ex parte; that he filed a petition to set aside the ex parte decree which was dismissed by the trial Court as well as by the appellate Court; that defendants 7 and 8 purchased the suit properties at a court auction and obtained delivery of possession and the latter who got those properties towards his share sold the same to defendants 1 to 6 who were in possession of the same; and that defendants 1 to 6 were bona fide purchasers without any knowledge of the alleged illegality or immorality of the mortgage debt, if any.

( 4 ) THE learned Additional Subordinate Judge dismissed the suit holding that the plaintiff signally failed to prove that the mortgage amount or any portion of it was spent for any illegal or immoral purposes; that the plaintiff was bound by his father's alienation for legal necessity; and that the plaintiff was not entitled to claim Rs. 16,000/-being, the difference in prices between the court sale and sale for which the properties were subsequently sold by defendant 8 in favour of defendants 1 to 6.

( 5 ) MR. M. S. Rao, the learned counsel for respondents 1 to 6 raised a preliminary objection that the appeal having abated against respondent 4, his legal representatives hot having been substituted in appeal, the entire appeal abated in toto.

( 6 ) DEFENDANTS 1 to 6 purchased the suit properties from defendant 8 under a sale deed dated 18-12-43. If is a joint purchase by all the six defendants' who are in possession of the properties. Respondent 4 died on 15-9-51 and a memo was filed by the learned counsel for the respondents on 17-8-54 informing the Court of his death on 19-8-54 the learned counsel for the appellant took two weeks' time for bringing the legal representatives of the deceased respondent 4 on record. Again on 6-9-54 further time was granted to the appellant for the same purpose.