JUDGMENT

Wazir Hasan, A J C - This is the defendants' appeal. On the 9th July, 1917 Bisheshar Defendant No. 3 to the suit out of which this appeal arises and father of the minor plaintiffs, Badri Nath and Kedar Nath who are respondents to the appeal made a mortgage of the ancestral joint family property in favour of Gauri Shankar and Mangal Defendants Nos. 1 and 2 for a sum of Rs. 1,000. The property mortgaged was the family residential house with a compound attached to it and one shop similarly attached. The mortgagees were put in possession of this property. The usufruct was to be appropriated by the mortgagees in lieu of interest due on half of the mortgage-money. The other half was to carry interest at the rate of 24 per cent. per annum compoundable yearly. The mortgage was irredeemable for a term of 45 years.

2. The mortgagees have been continuously in possession of the mortgaged property. The suit now under appeal was instituted by the sons of the mortgagor as already stated to recover possession of this property on the ground that the alienation made by their father was not justified by any purpose recognised under the Hindu Law.

3. Several pleas were taken in defence to this suit. It was pleaded that the entire consideration for the alienation was binding on the plaintiffs because it constituted either antecedent debt or was incurred for legal necessity. It was also pleaded that the suit was premature in view of the terms of the mortgage making its continuance certain for a period of 45 years. It was further pleaded that the mortgagees had spent a large sum of money over the mortgaged property converting it from a kachcha structure into a pucca building and they were entitled to be recompensated for the money they had spent on the new construction.

4. The Court of first instance rejected all the pleas in defence and decreed the suit for possession. On appeal by the defendants mortgagees, the First Additional Subordinate Judge of Gonda held that out of the total consideration of Rs. 1,000 for the mortgage the sum of Rs. 660 constituted antecedent debt as being due under a prior mortgage executed by the same mortgagor in favour of the same mortgagees. He, therefore, modified the decree of the Court of first instance by imposing a condition for the payment of this sum of Rs. 660 by the plaintiff's before they could enter into the possession of the mortgaged property.

5. The first argument in second appeal is that as the bulk of the consideration for alienation has been found to be valid as constituting antecedent debt the Courts below should not have set aside the mortgage but that it should have been upheld with all its conditions. I am unable to accept this argument. I have to consider the propriety of the alienation as a whole. It may be that in certain cases where the bulk of the consideration for an alienation made by a father in respect of joint family property consists of antecedent debt or is justified by legal necessity the alienation may be held binding upon the sons; where there is much more in an alienation than the simple question as to the amount of the consideration that might be of a valid character the Court must consider it in its entirety and come to the conclusion in the particular circumstances of each case as to whether it should be upheld or set aside. This, it seems to me, is a proper method of dealing with questions of the nature that I have before me. It is more so in view of the fact that, sitting as a Court of Equity, this Court has jurisdiction to impose terms on reliefs that it might think proper to grant to one or the other of the two parties to a litigation. When the transaction before me is considered in all its bearing how does it stand? The family residential house is the subject of the mortgage. Rs. 500 are to carry interest at a highly unconscionable rate and finally we have the term of 45 years imposed on the continuance of the mortgage. As is pertinently pointed out by the learned Ad