JUDGMENT

1. This second appeal arises out of a suit brought by the plaintiff-respondents on the basis of a mortgage bond executed on 23rd June 1914. The plaintiffs are the daughter's sons of the mortgagee. The defendants, when the suit was filed included the two mortgagors and their sons. During, the pendency of the:suit one of the mortgagors died. The mortgage bond was for Rs. 300 and this amount was recited in the deed as money for the price of a bullock previously purchased (because interest is calculated) and for the settlement of a running bahi khata account in respect of patty items of food.

2. The plaintiffs in para. 5 of their plaint based the liability of the sons of the actual mortgagors on the allegation that the debt was contracted for lawful necessity of the family and that the family had been benefited by the debt. It is important to notice that the liability of the sons of the mortgagors was not based on any allegation that the money was required to meet the antecedent debts of their respective fathers.

3. The trial Court found that legal necessity was not proved. The reasoning on which it came to this finding is as follows: It quoted two decisions of their Lordships of the Privy Council, Brij Lal v. Inda Kunvar AIR 1914 P.C. 38 and Banga Chandra v. Jagat Kishore AIR 1916 P.C. 110 as laying down that recitals in deeds could ordinarily only be evidence as between the parties to the conveyance or those who claimed under them, although, when a transaction was so ancient as to make it impossible for the parties to the suit to produce evidence to prove necessity, a recital as to necessity might be treated as of evidential value when consistent with the probability and circumstances of the case. The trial Court proceeded to consider the evidence apart from the recital and came to the conclusion that the evidence of Wazir Ahmad, an attesting witness, did not add any thing to the recital and that the evidence of Ishaq Lal was rendered unreliable by the fact that he was a pairokar of the plaintiffs and had not explained sufficiently his presence when the mortgage was executed. It further noted that, although in the bond there was a reference to the bahi khata accounts and to the page of the plaintiffs' bahi khata, those accounts had not been produced and there was no satisfactory reason given for their non-production. Lastly it held that the plaintiffs had delayed in bringing their suit on the mortgage and consequently were responsible for the difficulty of proving that the money was borrowed for legal necessity.

4. In appeal the Subordinate Judge help that the recital as to the debts was supported by the evidence of the marginal witness and might therefore be believed. He held that the mortgagors Bahadur and Jal Singh would not have recorded the necessity of the debts against their own interest and that of their family. He commented on the fact that Bahadur, the surviving mortgagor and the defendant, had not come into the witness-box. He excused the non-production of the bahi khata by saying that it was expecting too much from the grandsons of the mortgagee that they would have retained their grandfather's bahi khata for a period going back to 13 or 15 years. Lastly he was much impressed by the mention in the bond of the exact page of the bahi khata alleged to show the balance due on the running account for petty items of food. For these grounds he set aside the finding of the trial Court and found that the bond was executed for legal necessity.

5. We are not impressed by the reasons of the lower appellate Court for holding that there was evidence apart from the recital justifying the conclusion that the bond was executed for legal necessity and we would go as far as saying that there was no reasonable evidence apart from the recital (which we shall Consider later) for holding legal necessity proved. The marginal witness Wazir Ahmad merely stated that Bahadur and Jal Singh had admitted to him that the money was due. We are n