JUDGMENT

Muhammad Rafiq and Lindsay, JJ. - The suit which has given rise to this appeal was brought to enforce a mortgage, dated the 24th of May, 1907, executed in favour of the predecessor in interest of the plaintiffs by three mortgagors, Mahadeo Prasad Pal, Harihar Prasad Pal and Banke Bahadur Pal.

2. Of these the only survivor is Mahadeo Prasad, who was impleaded as the first defendant. Banke Bahadur died without issue, while Harihar Prasad, also deceased, is now represented by his two sons and a grandson, defendants 2, 3 and 4.

3. The fifth defendant is a grandson of Mahadeo Prasad.

4. The suit was resisted by the sons and grandson of Harihar Prasad, who pleaded that the property mortgaged was joint family property and that the mortgage debt had not been incurred for any family necessity nor for any purpose which would render the family property liable for its discharge.

5. The lower court dismissed the suit, finding that there was no legal necessity for the loan.

6. The learned Subordinate Judge was pressed with the plea that at any rate, the joint family had derived a benefit from the taking of the loan. He was, however, of opinion that although the mortgage might have been binding if the family had got some benefit from the loan, it was not proved that any such benefit had accrued up to the time the suit was brought.

7. The facts of the case are not now in dispute. They are as follows:

One Dan Bahadur Pal, a step-brother of the mortgagors, was the owner of a laluqa in the Partabgarh district in Oudh. He died in March, 1906, and Mahadeo Prasad put forward a claim to succeed, him. His case was that the estate was held under a primogeniture sanad, descending to a single heir and that he was the heir entitled to succeed. His claim was opposed by one Adya Bakhsh Singh, the daughter's son of Dan Bahadur, who claimed under a will.

8. The first contest between the parties was in the revenue court, where each sought to have mutation made in his favour. Mahadeo Prasad lost his case there. The revenue court of first instance ordered mutation in favour of Adya Bakhsh, on the 8th of October, 1906, arid this order was affirmed by the Board of Revenue on the 8th of February, 1907. In the year 1912 Mahadeo Prasad, with the assistance of a financier, one Seth Kanhaya Lal, brought a suit in the court of the Subordinate Judge of Partabgarh for recovery of the estate. Ho won his case in the first court but lost it on appeal in I lie court of the Judicial Commissioner of Oudh.

9. Thereafter Mahadeo Prasad obtained leave to appeal to His Majesty in Council but before the case could come on for hearing, the parties filed a compromise before the Judicial Commissioner and the appeal was withdrawn.

10. This fact was not within the knowledge of the court below when it gave judgment, but a certified copy of the compromise has been filed before us which shows that some property out of the estate of Dan Bahadur has been awarded to Mahadeo Prasad.

11. The mortgage now in suit was, as we have said, executed on the 24th of May, 1907, for a sum of Rs. 4,000.

12. All this money, except a sum of Rs. 401-2-0, was left with the mortgagee to pay off four usufructuary mortgages executed between the 0th of June and the 30th of October, 1906. The balance, Rs. 401-2, was said to have been taken by the mortgagor to defray (he stamp and registration charges in connection with the mortgage and to meet unspecified household expenses.

13. The learned Judge of the court below finds that the sums borrowed under the four mortgages of 1906 were spent in support of the claim for mutation put forward by Mahadeo Prasad in the revenue courts--a claim which, as already stated, failed. He further finds that the mortgagee knew that these sums had been borrowed for the purpose of that litigation.

14. As regards the balance of Rs. 400 odd his finding is that no legal necessity for the borrowing of this sum was proved, and that the mortgagee made no inquiry.

15. It has been argued before us, as