JUDGMENT

Simpson, A J C - This is a second civil appeal. The plaintiff is the appellant. The appeal raises a very narrow point of law. The suit was one to enforce a mortgage. The mortgage-deed was executed by a Hindu father, and the property mortgaged belonged to the joint Hindu family, consisting of the father and his sons. It cannot, therefore, be enforced against the property, unless there was valid family necessity for the loan, or adequate enquiry and honest action on the part of the lender. In the words of their Lordships of the Privy Council in the leading case on the subject, Hannoomanpersaud Panday v. Babooee Munraj Koonweree (1854-57) 6 M.I.A. 393: "The lender is bound to inquire into the necessities for the loan, and to satisfy himself, as well as he can, with reference to the parties with whom he is dealing that the manager is acting in the particular instance for the benefit of the estate. But they think that if he does so inquire and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge, and they do not think that, under such circumstances, he is bound to see to the application of the money."

2. In the present case, there is a recital in the deed that the family property is about to be brought to sale under a decree, and that the money is borrowed for the purpose of satisfying the decree. There is a finding of fact by the lower Appellate Court that there was such a decree in existence and that the sale of the property under that decree had been fixed for the 21st of October. The date of the loan was the 24th of September. In spite of this finding, both the Courts below have decided that the plaintiff is not protected mainly on the ground that the amount of the decree exceeded Rs. 1,500, while the amount of the money borrowed was only Rs. 325 so that the plaintiff must have known that this amount of money was quite insufficient to save the property. Another point taken is that it was the duty of the plaintiff to see that the money was used for this purpose, and that he ought to have paid it into Court or to the decree-holder. Another point is taken by counsel for the respondents, although I do not find it in the judgment, that the interest on the decree was only 8 annas per cent. per mensem, while the interest on the mortgage is Rs. 1-6-0 per cent. per month, and that only 11 pies were to be sold while the mortgage extends over 3 1/2 pies fractional share.

3. The point for decision is whether a second appeal lies at all. A finding of the existence of necessity is a finding of fact. On this point I find that an appeal does lie. There is no finding of fact here against the existence of necessity. There is a finding that the plaintiff is not protected and one of the grounds on which this finding is based is undoubtedly a ground of law, namely, that the lender was bound to see to the application of the money. The decision on this point is directly contrary to the decision already quoted in the leading case on the subject. Having found that the lender did satisfy himself as to the existence of family necessity, the Court was wrong in law in finding that the plaintiff was under an obligation to see to the application of the money.

4. Coming to the second point, I know of no authority for the proposition that the lender is obliged to ascertain that the amount of the money, which he advances, is equal in amount to the entire debt which constitutes the family necessity. If there exists a necessity which would justify the use of the whole money borrowed the lender is then justified in making the advance, whether or not other funds will be necessary for the same purpose. I cannot agree that the only alternative is that the manager of a family should make up the amount by several other small loans. Surely it is entirely possible that he may have some funds of his own.

5. The fact that the interest on the mortgage was higher than