1. The issue remanded to the Court below has been decided in the affirmative, the learned Subordinate Judge holding, as the Munsif did before him, that the loan taken by the ladies was for legal necessity. This finding has been challenged on the grounds that it is based only on recitals in the deed itself and because no notice was given by the lower Court to the respondent to appear on the date fixed for determination of the issue. The latter ground has not been pressed. As regards the former the learned Subordinate Judge has considered other evidence which he has held to corroborate the recitals in the deed and to prove that actually be money was applied to the purpose alleged therein.
2. We have it then that Mt. Katori lent money to the widow of Asharfi Lal for legal necessity and secured the debt by the execution of the mortgage bond. The property secured proving insufficient she obtained a decree for the balance under Order 34, Rule 6 and attached the money now in suit.
3. The lower appellate Court has held that the case is covered by the authority of Kallu v. Faiyaz Ali Khan (1908) 30 All. 394. The learned Counsel for the respondent relies on the same ruling and also cites Dhiraj Singh v. Manga Ram (1897) 19 All. 300. In both these cases however there is one important difference which makes them distinguishable from the present case, for in both the debt, though for legal necessity, was unsecured. In Kallu v. Faiyaz Ali Khan (1908) 30 All. 394 the Court remarked at page 398 'when Deokishen lent money to Mt. Gaura in 1883 he chose to do so on, her personal security. He did not obtain from her any mortgage of her husband's property. That being so we hold that any decree which he obtained on his simple money bond could only bind the rights and interests of his debtor on whose personal security he had advanced the money, Mt. Gaura is dead. She had only a widow's estate, and with her death the rights and interests in the property in suit purchased in execution of the decree against her came to an end.' So too in Dhiraj Singh v. Manga Sain (1897) 19 All. 300 the learned Judgea say 'the plaintiff, if he had chosen, could before lending his money, have obtained from the Hindu widow the security of the ancestral property by obtaining a mortgage. He did not choose to demand a mortgage before advancing his money he accepted the personal liability of the widow. He now seeks to get a decree under which he can bring to sale the ancestral property in the hands of the reversioners. He seeks a decree which would bind that property. In other words ha is seeking a decree in this suit, there, being no assets of the widow in the hands of the reversioners, which he could only have obtained if he had a valid charge on the ancestral property.' Here the facts are precisely the opposite. The creditor did obtain a mortgage and it is in execution of the decree she obtained on that mortgage that she got the further decree under Order 34, Rule 6 under which she now seeks to take the money in suit. I hold that she is entitled to do so and allowing the appeal I restore the decree of the first Court. The appellants will get their costs throughout including in this Court fees on the higher scale.