Muhammad Rafiq, J.
1. Babu Ram Sewak Singh, defendant respondent No. 2, was implicated in the murder of one Mr. Lawrence Barber, in the district of Azamgarh, in the year 1915. While Babu Ram Sewak Singh was in jail he, with his two sons and his brother, executed a deed of mortgage for Rs. 10,000 in favour of Lala Ram Raghubar Lal, the defendant appellant before us. Subsequently Babu Ram Sewak Singh was tried and acquitted. On the 1st of April, 1920, the uncle of Babu Ram Sewak Singh, namely, Dip Narain Singh, brought, the suit out of which this appeal has arisen for a declaration that the mortgage deed of the 16th February, 1915, executed by Ram Sewak Singh in favour of Raghubar Lal, was fictitious and give a without legal necessity. The material allegations were made in paragraphs 4 and 5 of the plaint. They were as follows:
In 1915 Babu Ram Sewak Singh, defendant No. 3, was charged with the murder of Mr. Lawrence Barber. The criminal court had ordered an attachment of the, property in dispute, for the appearance of defendant No. 2, and if was apprehended that the property would be confiscated; hence defendant No. 2, who on account of previous connection and friendship had great confidence in defendant No. 1, executed, on the 16th of February, 1915, an entirely fictitious mortgage deed, without consideration, for Rs. 10,000 without any family necessity, and without the knowledge of the plaintiff. In this document lie hypothecated all the property in dispute specified below which belongs to the whole family.
The expenses of the said criminal, case were defrayed entirely from the income of the family property while Babu Ram Sewak Singh, defendant No. 2, was in jail. Contracting loans under such circumstances cannot be regarded as valid necessity by law.
2. There were other allegations impeaching the validity of the deed of mortgage, such as the high rate of interest and the absence of the consent of the plaintiff to the deed; which need not be considered at present. The claim was brought against Ram Raghubar Lal and the four executants of the mortgage deed. Ram Raghubar Lal was the principal defendant. Ram Sewak Singh and his brother, Sri Newas, filed a written statement in which they made no definite statements with regard to the allegations in the plaint, but stated that they had no objection to the claim of the plaintiff and, therefore, they may be exempted from the array of the defendants and costs. Ram Raghubar Lal did not put in an appearance and no defence was filed by him. The court of first instance tried the case ex parte and decreed it, i.e., the declaration sought by the plaintiff, in his relief No. 1, was granted. Ram Raghubar Lal, in his appeal to this Court, contends that the evidence produced by the plaintiff was insufficient, for the lower court to grant the relief that has been granted. It is argued on behalf of the appellant that the deed of mortgage of the 16th February, 1915, was challenged by the plaintiff mainly on two grounds, namely, that it was fictitious and without consideration, and, secondly, that it was given without any legal necessity. There is no evidence in support of either of these two allegations. On the other hand, the contention for (he plaintiff respondent is that the onus was upon Raghubar Lal to prove that the deed of mortgage of the 16th February, 1915, was a good and valid deed, i.e., that it was obtained for consideration and that there was a legal necessity at the time of its execution for creating a charge on the family property. It was further argued that though Ram Sewak Singh was in trouble at the time, the mere fact of his being in jail on the charge of murder would not entitle him to burden the joint family property as he was not the karta of the family nor has it been shown that the income of the family property was in sufficient to supply funds for his defence. In my opinion the contention for the appellant ought to prevail. Dip Narain, though karta of the family, came into court as a plaintiff to get a declaration that the hypothecation bond of the 16th February, 1915, wherein the property specified in the plaint has been hypothecated, is entirely fictitious and without consideration and was executed without any legal necessity, is null and void in. law and inoperative, and may be cancelled. It was, therefore, for him to prove that the deed of the 16th February, 1915, was fictitious and without consideration. He had distinctly stated in his plaint the reason why he described the document as fictitious. In paragraph 4 of the plaint he said that a warrant of attachment for the property of Bam Sewak Singh was out from the court of the Magistrate, and, in order to save the property, the mortgage in question was given without any consideration. Ram Raghubar Lal was a friend of the family and the deed was written in his favour, knowing that he would not take advantage of the mere execution of the deed, and the procedure would save the property from attachment and sale. These circumstances required evidence in their support. It was for the plaintiff to establish these circumstances. The fact that the defendant, Ram Raghubar Lal, was absent and the case was tried ex parte would not do away with the necessity of proving those circumstances. I, therefore, think that the declaration sought by the plaintiff, Dip Narain, that the deed of the 16th February, 1915, should be declared null and void on the ground that it was fictitious and without any consideration cannot and should not be granted to him in view of the state of the evidence on the record. The second ground upon which the deed in question is challenged is the absence of legal necessity. It is true that when a creditor wants to enforce a charge on the joint family property created upon it by one member of the joint undivided Hindu family, it is for the creditor to make out a prima facie case of legal necessity if the charge is challenged by the other members of the family on the ground that it was created without any legal necessity. In the present case it is not the creditor who is enforcing his charges against the family property. It is one of the members of the joint family who is seeking for a declaration that the charge created upon the family property should be null and void on the ground that it, was created without legal necessity. I should think that in such a case there should be some prima facie evidence given by the plaintiff before the creditor is called upon to give evidence with regard to the validity of his document. The facts alleged in the plaint themselves go to show that there was legal necessity at the time that the deed in question was given. The plaintiff admits in his plaint that one of the executants, namely, Ram Sewak Singh, was in jail at the time on a very serious charge, i.e., of murder. The plaintiff, however, goes on to say that though Ram Sewak Singh was in jail on the charge of murder yet his defence was conducted from the joint funds. I think that if a member of a joint undivided Hindu family is standing his trial on a serious charge of murder and wants funds to defend himself and raises funds by creating a charge on the family property, he does so under necessity which may be called legal necessity under the Hindu law. In the present case the plaintiff has failed to show that the defence of Ram Sewak Singh was conducted from joint funds. The mere denial of legal necessity by Dip Narain when he comes into court as a plaintiff is, to my mind, not sufficient. I have, in reciting the case for the respondent, observed that the attitude of the plaintiff respondent with regard to this point is that if a member of a joint Hindu family is on his trial on a serious charge and raises money by hypothecating the joint family property, such hypothecation is not for legal necessity. No authority has been cited in support of this proposition. There are two cases in which the karta of the family raised money for his defence, Beni Ram v. Man Singh (1911) I.L.R. 34 All. 4 and Ramalingam Pillai v. Muthayyan : AIR1915Mad6 . The learned Counsel for the plaintiff respondent distinguishes those cases from the present one by stating that in the reported cases the karta of the family was implicated and he borrowed the money on the security of the family property. I do not think that there is any difference in principle where a karta of the family or a younger member of the family borrows money by hypothecating the family property in case he is in trouble in order to defend himself. I would, therefore, hold that the plaintiff, Dip Narain, has failed to make out a case for the declaration that he seeks in his plaint. I would further remark that on the terms of the mortgage in question the plaintiff respondent is not affected at all. The executants of the mortgage hypothecated their half share only in the joint family property. It is, however, said on behalf of Dip Narain that as the family was joint at the time of the execution of the mortgage, he (plaintiff) has an interest in each bigha of the property. That is quite true; but the terms of the mortgage do not affect his interest in the family property. In any case the granting of a declaration is a matter of discretion with the court, and, in my opinion, this is not a case in which such discretion should be exercised, I should, therefore, allow the appeal, set aside the decree of the court below, and dismiss the claim of the plaintiff. I would make each party bear its own costs.
3. I agree that the plaintiff, Dip Narain, ought not, in this suit, and on this record as it stands, to be granted any declaration whatsoever. I admit that the case is a very peculiar one and that I have felt considerable difficulty as to the proper order for us to pass. We do not know why the appellant Lala Ram Raghubar Lal failed to enter an appearance in the trial court. There is a finding in the judgment under appeal that notice of the suit had been duly served 'upon his mukhtar'am in the district of Fyzabad.' If Ram Raghubar Lal had made any attempt to obtain a re-hearing of the suit in the trial court, or had even in his memorandum of appeal to this Court formally challenged the finding that notice of the suit had been duly served on any person authorized to accept service on his behalf, I think other considerations would have arisen. On the other hand, if the plaintiff Dip Narain had, even by way of a subsidiary defence to the appeal, submitted a formal application supported by an affidavit, to the effect that he would have produced further evidence in the trial court if the court itself had not intimated that the evidence actually tendered was sufficient to warrant the passing of an ex parte decree, I should have felt much disposed to send the case back to the trial court to be fully tried out on the merits. Practically, however, so far as this Court is concerned, both parties to the appeal have elected to stand upon the evidence recorded in the court below. On that evidence I feel no doubt that the plaintiff was not entitled to a decree declaring the bond, in suit to be entirely fictitious and without consideration. There lay upon him, when he came into court as plaintiff, a certain burden of proof which, in my opinion, was by no means discharged by the single statement of one of the executants of the bond, to the effect that he personally had received no money in connection with the same. There remains the question whether a declaration regarding the legal necessity for the bond ought to be granted in this suit. As has been remarked by my learned brother, the question of the granting of a decree in a declaratory suit is always in the last resource a matter of discretion with the court. No doubt that discretion has to be exercised upon proper and legal, principles. But the present case is an altogether peculiar one. I am inclined to. doubt whether a plaintiff, coming into court like Lala Dip Narain Singh has done in the present suit, should have been allowed to raise the question of legal necessity before the mortgagee had made any attempt to enforce his claim against the mortgage security and while it was still open to the mortgagee to seek relief by way of a claim for a simple money decree, if it had not been for the allegations in the plaint regarding the wholly fictitious character of the document. At any rate I am clearly of opinion that, in the present state of the record, we ought to refuse to make any declaration on the subject of the legal necessity for this document. As for granting the plaintiff a declaration that the deed in suit was executed without his knowledge and information, or that it does not affect the interest in the joint family property, if any, which the said plaintiff would take on partition, I do not think it would be proper to grant any declaration to this effect. Except in so far as they would be mere statements of law, they could not be based upon satisfactory evidence on the record. For these reasons I agree in the-order proposed.
4. The order of the Court is that the appeal is allowed and the decree of the lower appellate court is set aside and the claim of the plaintiff is dismissed. The parties shall bear their own costs.