JUDGMENT :- Sri H.S. Nigam, learned counsel for lie plaintiff appellants, has sought to raise an interesting point in support of this appeal. Learned counsel submitted that the debt having been incurred by the major members of the joint Hindu family for the purpose of the marriage of a minor member would not be binding on the joint Hindu family as the marriage of a minor being prohibited by virtue of the provisions of Child Marriage Restraint Act, 1929, the debt would be for illegal purposes and not for legal necessity. Reliance has been placed on Tattya Mohyaji Dhomse v. Rabha Dadaji Dhomse, AIR 1953 Bom 273, Rambhau Ganjaram v. Rajaram Laxman, AIR 1956 Bom 250 and Hansraj Bhuteria v. Askaran Bhuteria, AIR 1941 Cal 244. Learned counsel for either party at the bar were not able to cite any case decided by the Allahabad High Court on the subject.

2. The undisputed facts of the case are that Daulatram and Ghanshyam, second and third defendants in the suit giving rise to this appeal, executed a simple mortgage on 19-4-1952 in favour of Smt. Naraini Devi, the first defendant in the suit, for securing a loan advanced by the mortgagee for the purpose of marriage of Horilal, a minor brother of the two mortgagors. A Suit No.213 of 1958 then was brought by the mortgagee Smt. Naraini Devi for sale of the mortgage property. On 15-5-1959 a decree for sale of the mortgaged property was passed. In execution of the decree the mortgaged property was sold and was purchased by Babulal, the sixth defendant in the suit. The fourth and fifth defendants in the suit were Smt. Bhagwan Dei, widow of the said Horilal, and Km. Rajjo, the minor daughter of the said Horilal, respectively. The four plaintiffs were the minor sons of Daulat Ram and Ghanshyam, the mortgagors. The relief sought in the suit was sought on the allegations that Daulatram and Ghanshyam were gamblers, they had taken the loan not for any legal necessity but for immoral purposes and that they had taken the loan in their personal capacities and not as members or karta of the joint Hindu family, hence the mortgage debt was not binding on the family properties therefore the transaction of mortgage, the decree passed in its enforcement and the auction held in execution were void and not binding. A relief for permanent injunction was claimed against the sixth defendant Babulal, auction purchaser, from taking possession of the properties sold in execution of the mortgage decree. The courts below have recorded a concurrent finding that the loan was taken by Daulatram and Ghanshyam for performing the marriage of their brother Horilal. This finding is binding in second appeal as it has not been shown to be vitiated by any error of law or procedure. Indeed Sri Nigam for the plaintiff appellants did not challenge the correctness of the finding. The trial court recorded a finding that the loan was taken for legal necessity and on that finding dismissed the plaintiffs' suit. The lower appellate Court, however, took the view that the plaintiffs were not competent in law to question the transaction of loan incurred by their fathers as they were under a pious duty to discharge the debts, there being no evidence that the debts were taken for illegal or immoral purposes. The learned Judge of the lower appellate Court did not, therefore, think it necessary to go into the question whether there was any legal necessity.

3. Sri V.K. Gupta, appearing for the defendant respondents, submitted that on the concurrent finding of fact that the debt was taken in 1962 by Daulatram and Ghanshyam for performing the marriage of their brother Horilal, a member of the joint Hindu family, the legal necessity was proved and even though the learned Judge of the lower appellate Court may not have discussed the question it was implicit in his finding that there was legal necessity as the learned Judge did not find any evidence on record establishing any immorality or illegality on the part of Daulatram and Ghanshyam in incurri

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