JUDGMENT

Kanhaiya Lal, J. - The plaintiffs claim to be the reversionary heirs of one Gaya Prasad Misir, who died leaving two widows Mt. Jasoda Kunwar and Mt. Bindhachal Kunwar. He had a brother Mangla Prasad, who had died before him, leaving a widow, Mt. Sheerani Kuar. Gaya Prasad was indebted to a parson named Kamta Prasad, who obtained a decree after his death against his widows on the 5th September 1908. In execution of that decree Kamta Prasad got 150 maunds kham of grain in the possession of the widows attached on the 17th July 1909. It is not suggested that the grain attached was the produce of the time of Gaya Prasad. Gaya Prasad had, in fact, died over a year earlier. The widows paid up the decretal money by borrowing Rs. 400 from Gauri Shankar and executing a mortgage-bond for that amount in his favour and the question for consideration is whether that mortgage-bond was made for valid necessity and was binding on the reversioners.

2. The trial Court found that it was binding on the reversionary heirs of Gaya Prasad and that the rate of interest mentioned therein was not excessive. The lower appellate Court, however, found that though the widows were under no obligation to use any portion of the usufruct of their husband's property in payment of the debt, it was an act of "sheer improvident waste" on their part to mortgage property, which, judging by the valuation of the suit, was worth Rs. 3,000 to pay off a petty debt of Rs. 400 bearing interest at Re. 1-8-0 per cent, per mensem with yearly rests. It therefore, proceeded to declare that the alienation was not supported by legal necessity except to the extent of the principal money and that the mortgagee was not entitled to claim any interest on the same. It is obvious, however, that either the mortgage was made for legal necessity, i.e., to pay a debt due by the husband of the widows, or it was made without legal necessity. If it was made for legal necessity, the mortgagee is entitled to recover the amount due on the mortgage with interest thereon at the stipulated rate, unless the rate is shown to be unreasonable and excessive. The mortgagee could not have compelled the widows over whom he had no control to pay the interest, as it accrued due on the mortgage, to save themselves from a liability to compound interest. His duty was merely to receive what the widows might pay him either out of the income of the property left by their husband or otherwise. If the widows did not pay the interest due on the mortgage or the principal and interest due thereon within four years as stipulated, he is not to blame for it, and he cannot be made to suffer for the fault of others.

3. The lower appellate Court observes that

by the sale of 150 maunds of grain (which would be about 200 maunds by the standard weight) the whole debt might have been liquidated.

4. But the report of the attachment shows that the equivalent of 150 maunds of grain attached was 120 maunds by standard weight, and the evidence of Gopi Nath proves that on the objection of Mt. Sheorani Kuar, half of that grain was released. The rest was proclaimed for sale and the mortgage-deed recites that if that were sold, the widows would have no grain left in their house to eat. That was the representation on which the loan from Gauri Shankar to pay the decretal debt due to Kamta Prasad was obtained and there is nothing to show that the creditor had acted otherwise than in good faith in lending the money to pay up that decree. The mortgage in question is, therefore, binding on the plaintiffs, who admittedly came to know of it within a few months of the mortgage but have never taken any steps to get the interest paid by the ladies or to pay the principal or interest themselves since 1908.

5. It is suggested on behalf of the plaintiffs that the widows had an income of Rs. 500 per annum from their property and that it was an act of imprudent waste on their part to make a mortgage and pay nothing towards it. The defendants, however,