K.B. Asthana, J.
1. Sri H. S. Nigam, learned counsel for the plaintiff appellants, has sought to raise an interesting point in support of this appeal. Learned counsel submitted that the debt having been incurred by the major members of the joint Hindu family for the purpose of the marriage of a minor member would not be binding on the joint Hindu family as the marriage of a minor being prohibited by virtue of the provisions of Child Marriage Restraint Act, 1929, the debt would be for illegal purposes and not for legal necessity. Reliance has been placed on Tattya Mohyaji Dhomse v. Rabha Dadaji Dhomse : AIR1953Bom273 , Rambhau Ganjaram v. Rajaram Laxman : AIR1956Bom250 and Hansraj Bhuteria v. Askaran Bhuteria : AIR1941Cal244 . Learned counsel for either party at the bar were not able to cite any case decided by the Allahabad High Court on the subject.
2. The undisputed facts of the case are that Daulatram and Ghanshyam, second and third defendants in the suit giving rise to this appeal, executed a simple mortgage on 19-4-1952 in favour of Smt. Naraini Devi, the first defendant in the suit, for securing a loan advanced by the mortgagee for the purpose of marriage of Horilal, a minor brother of the two mortgagors. A Suit No. 213 of 1958 then was brought by the mortgagee Smt. Naraini Devi for sale of the mortgage property. On 15-5-1959 a decree for sale of the mortgaged property was passed. In execution of the decree the mortgaged property was sold and was purchased by Babulal, the sixth defendant in the suit. The fourth and fifth defendants in the suit were Smt. Bhagwan Dei, widow of the said Horilal, and Km. Rajjo, the minor daughter of the said Horilal, respectively. The four plaintiffs were the minor sons of Daulat Ram and Ghanshyam, the mortgagors. The relief sought in the suit was sought on the allegations that Daulatram and Ghanshyam were gamblers, they had taken the loan not for any legal necessity but for immoral purposes and that they had taken the loan in their personal capacities and not as members or karta of the joint Hindu family, hence the mortgage debt was not binding on the family properties therefore the transaction of mortgage, the decree passed in its enforcement and the auction held in execution were void and not binding. A relief for permanent injunction was claimed against the sixth defendant Babulal, auction purchaser, from taking possession of the properties sold in execution of the mortgage decree. The courts below have recorded a concurrent finding that the loan was taken by Daulatram and Ghanshiam for performing the marriage of their brother Horilal. This finding is binding in second appeal as it has not been shown to be vitiated by any error of law or procedure. Indeed Sri Nigam for the plaintiff appellants did not challenge the correctness of the finding. The trial court recorded a finding that the loan was taken for legal necessity and on that finding dismissed the plaintiffs' suit. The lower appellate Court, however, took the view that the plaintiffs were not competent in law to question the transaction or loan incurred by their fathers as they were under a pious duty to discharge the debts, there being no evidence that the debts were taken for illegal or immoral purposes. The learned Judge of the lower appellate Court did not, therefore, think it necessary to go into the question whether there was any legal necessity.
3. Sri V. K. Gupta, appearing for the defendant respondents, submitted that on the concurrent finding of fact that the debt was taken in 1962 by Daulatram and Ghanshiam for performing the marriage of their brother Horilal, a member of the joint Hindu family, the legal necessity was proved and even though the learned Judge of the lower appellate Court may not have discussed me question it was implicit in his finding that there was legal necessity as the learned Judge did not find any evidence on record establishing any immorality or illegality on the part of Daulatram and Ghanshiam in incurring the debt. I am inclined to agree with this submission of Sri Gupta.
4. However, the question remains whether the minority of Horilal at the time of his marriage in 1952 would make the transaction of loan incurred by his elder brother as illegal and not binding on the family. There are some difficulties in the way of Sri Nigam in satisfying me that the plaintiffs were entitled to a decree on the proof of the fact that Horilal was only fourteen years of age at the time of his marriage as has been elicited from the evidence of Babulal, the sixth defendant. Firstly, the plaintiffs themselves pleaded in the plaint that Horilal was a major when his marriage was performed in the year 1952. I think the law is settled that a plaintiff cannot be allowed to succeed against his own pleadings. Secondly, no plea was raised in the plaint as to the non-binding nature of the mortgage debt grounded on the fact that the marriage of Horilal being violative of the provisions of the Child Marriage Restraint Act, 1929, any debt incurred for its performance would be illegal, devoid of legal necessity and will not bind the joint family property. Had such a plea been raised, the parties would have been at issue on the question of age at which the marriage of Horilal was performed. A child has been defined under the said Act as a person below eighteen years if a male. Babulal in his evidence stated that the marriage of Horilal was performed fourteen or fifteen years earlier. He was being examined in the year 1966. That would show that the marriage of Horilal was performed in the year 1952. Then Babulal further stated that Horilal must have been about fourteen years in age at the time of marriage. Sri Nigam for the plaintiff appellants has built up an argument for the first time in second appeal on this statement of Babulal. I do not think I would be justified in allowing a question to be raised for the first time in second appeal which materially depends upon finding of facts on which the parties in the court below were never at issue. The statement of Babulal, who admittedly is not a member of the joint family, elicited from him in cross-examination without the parties being at issue on that question, would hardly be conclusive of the age of Horilal at the time of his marriage. I am, therefore, not inclined to accept the contention of Sri Nigam for the appellants as there is no satisfactory evidence on record on the age of Horilal at the time of his marriage.
5. Even assuming for a moment that Horilal was below eighteen years of age in 1952 when he was married, I do not think a loan incurred by the major members of the family for performance of his marriage would not be for legal necessity or not binding on the joint family property. It is difficult for me to agree with the view of the learned Judges of the Bombay and Calcutta High Courts as adumbrated in the cases cited above. With respect to the learned Judges, I think the marriage of Hindu male below eighteen years of age with a Hindu girl below fifteen years of age is not invalidated or rendered illegal by the force of the Child Marriage Restraint Act of 1929. It will remain a valid marriage binding under the Hindu Law if otherwise performed under any recognised form of Hindu Law. It would be seen that the Child Marriage Restraint Act only restrains a marriage of minors and that is its objective, but does not prohibit the marriage rendering it illegal or invalid. It punishes those persons who arrange that marriage and actively participate in celebrating it. The minor spouses who get married are not punished under the Act. Once it be held that the marriage itself is not illegal or invalid under the Child Marriage Restraint Act, 1929, then a debt incurred by the major members of the family for marrying a minor member of the family will not be for an illegal purpose as the marriage is legal and the debt is incurred for the marriage. It may be that the consequence under the law would be that the major members be punished for their act in making arrangements for celebration of the marriage. I do not see any good reason, therefore, to hold that if in a Hindu joint family a karta or major member of the joint Hindu family incurs a debt for performing the marriage of a minor who is below the age prescribed under the Child Marriage Restraint Act, 1929 will be incurring a debt for illegal purposes as the marriage which would be performed would ]yet be binding and legal. For the reasons given above, it is difficult for me to agree with the view of the learned Judges of the Bombay and Calcutta High Courts.
6. I do not find any force in this appeal and dismiss it with costs.