The burden of proving that a mortgage by a Hindu father was not for legal necessity lies on the sons challenging the mortgage.

M.R.Sharma, J.

1. The following pedigree table will be useful for understanding the facts arising out of this second appeal:-

- JANGIRI LAL ____________________|_____________________ | | Han Rai Brij Lal (defendant No. 2) |___________________________________________|_____________________________________________ | | | | | | | Bhisham Basti Ram Ved Prakash Shivsharan Ram Gopal Mohan Lal Sudh Chand Dass (Def.No.3) Parkash (Def.No.2)

2 I have not indicated to the names of two daughters and wife of Brij Lal, who also joined as plaintiffs in the suit filed before the learned trial Court. It was held that they had no locus standi to bring this suit and this matter was not challenged in this appeal. The facts giving rise to the litigation may briefly be stated as follows.

3. Brij Lal now a respondent and defendant No. 2 before the learned trial Court, mortgaged a house mentioned in the body of the plaint with the appellant for a sum of Rs. 10,000/- vide registered deed dated February 21, 1947. The respondents brought the suit in the learned trial Court on the ground that his house formed part of the coparcenary property and the mortgage effected by Brij Lal, their father, being without any valid necessity, was not binding upon them. Since they were in possession of the house, they prayed that a declaration in that behalf may be granted in their favour. Brij Lal had been declared insolvent and the Insolvency Court vide its order dated February 18, 1960, directed that the house be sold subject to the charge of the appellant and the proceeds thereof be placed at the disposal of the receiver for being utilized in accordance with law. The appellant in his written statement denied that the house was a joint Hindu family property qua the plaintiff-respondents and further stated that the mortgage was for legal necessity. He also submitted that the suit was barred by limitation and the two daughters of Brij Lal, namely, Tara Wati and Shimla Devi, and Bhagwanti wife of Brij Lal, had no locus standi bring in the present suit. The learned trial Court raised two preliminary issues regarding its jurisdiction to try the suit and also whether the plaint disclosed any cause of action. These issues were decided against the respondents vide order dated February 26, 1962, passed by the learned trial Court. On merits the parties went on trial on the following on the following issues:-

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(1) Whether the receiver is necessary party to the suit?

(2) What is the effect of the orders dated the 23rd November, 1955, and 18th February, 1960, passed by Insolvency Court on this case?

(3) Whether the plaint was properly valued for purposes of court-fee?

(4) Whether the suit in the present from is maintainable?

(5) Whether the suit is collusive ?

(6) Whether plaintiffs have no locus standi to sue?

(7) Whether the property in suit is joint Hindu family property)

(8) Whether the mortgage in question was for legal necessity?

(9) Whether the suit is barred by time?

(10) Relief.

4. The learned trial Court held that the official receiver was not a necessary party and the orders dated November 23, 1955, and February 18, 1960, did not have the effect and calling upon the plaintiffs to prove that the mortgage debt was immoral in nature. The plaint was held to properly valued and on the question to locus standi it was held that the respondents Nos. 1 to 5 had a right to file the suit and their two sisters and mother were incompetent to do so. The house was held to belong to the joint Hindu family and the mortgage in dispute, according to the learned trial Court, was not proved to have been made for that the suit was collusive and also barred by limitation. As a result of these findings, the learned trial Court dismissed the suit filed by the respondents.

5. In appeal, the learned lower appellate Court came to the conclusion that the suit was not collusive and on the question of limitation it held that the suit was within time. The issue regarding legal necessity was al