1. This was a suit for money due on a simple mortgage executed by Ganga Bishen Singh, (father of three of the defendants) in favour of the plaintiff's father on the 26th August 1910. Defendants Nos. 2 to 16 were subsequent transferees.
2. The only defendant who contested the suit was Harish Chand, Defendant No. 4, who purchased a portion of the mortgaged property at an auction sale held in execution of a simple money-decree obtained by one Mt. Parmawati against Ganga Bishen, the mortgagor.
3. Among the defences set up by Harish Chand was the plea that Ganga Bishen as the father of a joint Hindu family was not authorized to mortgage the property without legal necessity. The trial Court found that the plaintiff had failed to prove legal necessity and accordingly dismissed the plaintiff's suit.
4. The plaintiff, in appealing to the Court of the District Judge, accepted the finding that legal necessity for the loan was not proved, but he contended that Harish Chand as a mere auction purchaser was not entitled to impeach the validity of the mortgage by putting the plaintiff to proof of legal necessity, The Court below decided this point against the plaintiff and dismissed the appeal. The same point; has again been argued before us in second appeal.
5. In the case of Huzamilullah Khan v. Mithu Lal (1911) 33 All 783, which was relied upon by the Court below, a Full Bench of this Court laid down the principle that a transferee of joint family property is entitled to contest the validity of a transfer made by one of the members of the family. On this principle it is clear that if Harish Chand, the transferee, has acquired the interests not only of Ganga Bishen, the mortgagor, but of the whole joint family then he is entitled to contest the validity of the mortgage executed by Ganga Bishen.
6. In the case to which we have referred it was held that the transferee, although he had acquired his title from one coparcener only, must be presumed to have made good his title as against the other co-parceners also by reason of the fact that he had held possession for more than 12 years. In such circumstances it was held that he represented the whole family,
7. The learned Counsel for the appellant seeks to distinguish the present case on the ground that the transferee has not been in possession of the property for more than 12 years. This is true. The transferee, Harish Chand, cannot base his claim to represent the whole of the joint family on the strength of possession for over 12 years but he can claim to represent the whole family on other grounds. It is shown by the judgment of the Court below that in 1915 two sons of Ganga Bishen brought a suit against Harish Chand, the auction-purchaser, for a declaration that they were not bound by the sale and that their interest still subsisted. It was definitely decided in that suit that Harish Chand had purchased not merely the personal interest of Ganga Bishen, but the whole interest of the family. In the present case, therefore, it has been judicially held that. Harish Chand has acquired the whole interests of the joint family and not merely the personal interest of Ganga Bisben. Harish Chand, therefore, represents the whole joint family, and on the principle laid down in the Full Bench ruling, referred to above, he is entitled to impeach the validity of the mortgage executed by Ganga Bishen and to put the plaintiff to proof of legal necessity.
8. We, accordingly, confirm the decree of the Court below and dismiss the appeal with coats including fees on the higher scale.