1. This appeal arises out of a suit instituted by Jagannath Prasad against Nathimal, Parmeshwari Das and Mt. Bibiramji in order to obtain a declaration that he was the owner of the property mentioned in the plaint and that the property was not liable to be sold in execution of the decree in suit No. 30 of 1927 of the Court of the Subordinate Judge of Muttra. This decree was one for the sale of the property mentioned in the plaint on the basis of a deed of simple mortgage executed by Parmeshwari Das in favour of Nathimal. It is alleged in the plaint that Nathimal advanced some money to Mt. Bibiramji and that Babu Parmeshwari Das stood surety for her to the extent of Rs. 8000, and hypothecated the property in suit in order to strengthen the security. It is further alleged that he had no right, title or interest in the property. The reply upon these allegations in the written statement of Nathimal is that it is denied that Parmeshwari Das had no power to hypothecate the property, but the rest is admitted. Jagannath Prasad is the son and Mt. Ramji Bibi the daughter of Parmeshwari Das. Parmeshwari Das is the adopted son of one Beni Prasad. The plaintiff alleged in his plaint that Parmeshwari Das had no interest whatsoever in the property, in suit which had come to him as his own property under a will executed by Beni Prasad to whom the property belonged. On the other side it was alleged by the defendants that Parmeshwari Das was the sole owner of the property.
2. The learned Judge of the Court below came to the conclusion that neither of the parties was telling the truth and that, in fact, the property in suit was the joint family property of Beni Prasad, who is now dead, Parmeshwari Das and Jagannath Prasad. The learned Judge also held that there was no legal necessity for the execution of the mortgage by Parmeshwari Das because no allegation of legal necessity was made on behalf of the defendants. In the result he passed a decree, as prayed by the plaintiff, in respect of half the property in suit. Learned Counsel for the appellant has argued that the learned Judge, on his findings, should have passed the decree in respect of the whole of the property, because the father of a joint Hindu family is not entitled to transfer even his own share of the property, unless there is legal necessity for him to do so. Learned Counsel for the respondents has not been able to controvert the general proposition of law, although in justification for the finding of the learned Judge of the lower Court it may be said that Jagannath Prasad had alleged in his plaint that he was living separate from Parmeshwari Das, and therefore it might perhaps have been the intention of the learned Judge to hold that the property had ceased to be the joint property of the father and the son. However that may be, it seems to us that the appeal must fail for another reason.
3. Learned Counsel for the respondents has pointed out that the question of legal necessity was never raised in the pleadings and that no issue was framed upon it in the Court below. There could obviously be no issue as the question did not arise out of the pleadings. It had been pleaded on the one hand that the property was the sole property of Jagannath Prasad, and on the other that it was the sole property of Parmeshwari Das. In these circumstances, it appears to us that it would be impossible to base any decree upon the finding that there was no legal necessity for the hypothecation. It would be contrary to all principles to record a finding upon this point against the respondents, when they had no notice either to plead legal necessity or to produce evidence upon the point. There was no issue in the Court below upon which the respondents could produce evidence to prove that there was legal necessity for the mortgage. Learned Counsel for the appellant has argued that it would have been impossible to say that the father of a joint Hindu family could have had any legal necessity to alienate the family property to secure the payment of a debt by another person. We are unable to say when numberless combinations of facts are possible; that there could be no combination in which there would be legal necessity for a transfer of this kind. We may mention that the original deed of mortgage has not been produced, and we know nothing of its terms. We consider we are bound to follow the very obvious legal principle that there should be no decision against a person who has not had an opportunity of being heard upon the point which is to be decided. We are, therefore, unable to hold that the plaintiff-appellant has established that the property mentioned in the plaint was not liable for sale in execution of the decree. The plaintiff-appellant has obtained a decree in respect of half the property and the defendant-respondents have acquiesced. In respect of the other half of the property the suit was rightly dismissed. We dismiss the appeal with costs.