1. This is a defendant's appeal arising out of a suit for recovery of possession of a half-share in the estate left by the plaintiffs' father, Ram Ratan. The plea that the plaintiff is not the daughter of Ram Ratan has been disposed of by us in the connected appeal. The appellant was a mortgages from the Hindu widow, Mt. Ram Kali, under a deed dated 17th June 1915. He pleaded that he was a bona fide transferee for value and was protected under Section 41, T.P. Act. The plea of legal necessity was taken by him only by implication, but the other contesting defendants raised the question in an express form and an express issue was framed by the Court below at the trial on this question of legal necessity. The finding however is against mortgagee appellant.
2. The mortgage-deed of 1915 was for Rs. 1,600. It was recited therein that Mt. Ram Kali had stood in need of money for payment of rent to the zamindar and for construction of a house and that Ra. 1,300 were required in order to pay off a previous possessory mortgage-deed in favour of Sheo Chal Singh. She also took Rs. 100 for execution and completion of the document and for household expenses and received the sum of Rs. 200 which was stated to be required for payment of rent and the construction of a house. The earlier mortgage-deed in favour of Sheo Chal Singh was of the date 23rd June 1910 and was for a sum of Rs. 1,300. The amount was borrowed in order to pay off Rs. 1,098 to one Sobh Nath a previous creditor and another sum of Rs. 152 was required for payment to other creditors and a sum of Rs. 50 was taken for the expenses of the document. The document in favour of Sobh Nath has been lost and no attempt was made to produce a certified copy of the deed in case it was registered. But the oral evidence goes to show that that document in its turn was executed in order to pay off a debt due to Ram Naresh Ghaudhri under a document dated 19th June 1894. This document in its turn recited three sums of money had been required for payment to three previous creditors and a sum of Rs. 58 for expenses.
3. The mortgagee gave evidence to the affect that so far as the sum of Rs. 250 was concerned it was required by the lady for reconstructing her house. It appears that the house had fallen down owing to floods and it had to be reconstructed. He further stated that there were previous creditors, namely, Sobh Nath and Ram Naresh Chaudhri. He however did not have any personal knowledge of the purposes for which Ram Kali had borrowed the sums from these creditors and was not able to give any details. It is on this evidence that the learned Subordinate Judge has held that legal necessity has not been established. As regards the construction of the house his finding is in the following terms:
Defendant 4 and his witness 4 state that Ram Kali's house had fallen down during floods; und so she borrowed Rs. 200 for the reconstruction thereof, and the fact that she reconstructed it. There is no rebutting evidence on plaintiff's behalf on this point. In the circumstances I am not inclined to believe (sic) the defendant's evidence. I am therefore of opinion that Ram Kali borrowed Rs. 200 for the purpose of reconstructing the house.
4. But the learned Subordinate Judge went on to hold that this fact alone was not sufficient to establish legal necessity because she had in all three houses and she might well have lived in the remaining two houses. In our opinion the conclusion of the learned Subordinate Judge on this point is wrong. This house which had fallen down owing to floods was a part of the corpus of the estate and it was the duty of the Hindu widow to maintain it for the benefit of the reversioners. If the house fell down and she had to spend a small sum of Rs. 200 on rebuilding it the purpose was fully justified and the amount was borrowed for legal necessity. There is no evidence on the record to suggest that the other two houses were of such sizes as to be habitable by her nor is there anything to show that she could afford to do without the house that had fallen down. We think under the circumstances that this item must be upheld.
5. The learned advocate for the appellant has strongly contended that his client has done all that could be reasonably expected of an ordinary transferee and that it must be held that he has discharged the onus which lay upon him to establish necessity. It is urged that the mortgagee has been able to trace back the debt to a time earlier than 1894 and owing to lapse of time it has now become impossible for him to produce any evidence to show what the actual necessity for the initial loan was. He has laid great stress on art observation of their Lordships of the-Privy Council in Niladri Sahu v. Chaturbhuj Das A.I.R. 1916 P.C. 112. That was a case where a shebait who had been extravagant had' borrowed money for the purpose of making some additions to a Math building and later on had renewed the debt. He shut up all avenues through which information-could be obtained, and then called upon the plaintiff to establish that there was necessity, a task which was made impossible for him. Pucka buildings situated in a part of the Math were used by the Math authorities as their own and they were functioning as they were intended to do and were being used by the worshippers who occupied and enjoyed them. The Math authorities were keeping the buildings and yet declined to pay for them. Their Lordships disagreed with the view of the Patna High Court that the procurement of a loan of money on easy terms for the purpose of paying off antecedent loans obtained on very oppressive terms can never in a case of this character be held to be a necessary proceeding unless the obtaining of the oppressive loan was at the time it was obtained a matter of necessity also. The observation was obviously made with regard to a case of the particular character which was be fore their Lordships. In that case it was actually found that although the remote cause of the Math's need was due to the profligate expenditure of the shebait the immediate cause of the borrowing was the Math's need of money to carry on and pay for its service p. 19 (of 25 A.L.J.). It was accordingly held by their Lordships that the transaction was fully justified and was binding on the Math.
6. It seems to us that that was a peculiar case of a Math and does not overrule the view which has prevailed in this Court as regards the burden of showing the existence of legal necessity in transactions entered into with Hindu widows, or at any rate, of showing a bona fide enquiry as to the existence of such necessity. In a recent Full Bench case of Chiranji Lal v. Banke Lal : AIR1933All273 , where the mortgage-deed in suit was of the year 1924 and was in lieu of amounts due under two previous mortgage-deeds of 1919 and 1916 and was itself held not to be binding on the other members, the Pull Bench considered it necessary to find out whether the earlier mortgages of 1916 and 1919 were themselves for legal necessity so as to be binding on the family. Obviously the mere fact that the mortgage in suit is a renewal of a previous mortgage or mortgages would not be sufficient to discharge the burden unless it is a case of an antecedent debt of a father. At the same time it would seem to be very hard on a transferee if he is called upon to pursue the inquiry and go back to a long period when evidence as to the existence of the necessity would have perished. If there were some recital in the deed, then on the recital coupled with the fact of the long lapse of time and other circumstances the Court may presume that necessity had existed. In view of the observations made by their Lordships of the Privy Council we would like to guard ourselves from being understood to hold that it is absolutely incumbent on a transferee to trace back the debts to their very origin in a remote period. Recitals or bona fide inquiries might well take the place of an actual proof of necessity.
7. In the present case however the document of 1894 which is the earliest one mentioned, it not being known whether the three previous creditors held parole debts or debts due on bonds, is on the record. It does not recite that the previous debts were due from the husband of Mt. Ram Kali. Her husband had died shortly before 1894 and if the money had been due from him one would expect it to have been recited in the document. There is no proof that the income from the estate in the possession of Mt. Ram Kali at that time was not sufficient for her maintenance. It is also clear that the case of a Hindu widow is slightly different because she has a life interest for the time being which she can freely mortgage. When therefore she made a mortgage of property in her possession in lieu of the debt professedly due from her one might expect that she was merely mortgaging her own life interest and therefore without any prejudice to the ultimate reversioners. Having regard to all the circumstances we are of opinion that with the exception of the sum of Rs. 200 which was required for the reconstruction of the house it has not been established that the other sums except one were required for legal necessity.
8. A sum of Rs. 100 was also required by her for her personal expenses and the costs of registration. As we are upholding the document in part it would only be fair to allow to the transferee a proportionate amount of this item as well. We accordingly hold that the mortgage dated 17th June 1915 executed by Mt. Ram Kali in favour of Ram Nayak Singh is binding on the daughters to the extent of Rs. 212-8-0 without any interest. If the mortgagee agrees, either of the two daughters can redeem their half share on payment of half the mortgage debt so found due. If he is not prepared to submit to partial redemption one of the daughters can redeem the whole on payment of the whole debt Rs. 212-8-0 with of course a right for contribution against the other in a separate suit.
9. We think that the parties should bear their own costs of this appeal. As there is a deficiency in the amount of the costs of printing and translation the decree shall not be prepared until the amount has been made good by the appellant.