1. This appeal arises out of a suit brought on foot of a mortgage, dated the 9th of February 1891. The mortgage was admittedly made by the father of a joint Hindu family. The consideration for the mortgage was a sum of Rs. 5,000, alleged to be due on accounts at the date of the mortgage, a sum of Rs. 6,500 represented interest calculated in advance, and Rs. 22,000 cash advanced to enable the mortgagor to purchase certain immoveable property. The principal amount was made re-payable by instalments extending over 16 years. The Court below has given a decree for Rs. 27,926-1.
2. The question which has been urged before us in the present appeal is that the sum of Rs. 5,000, assuming it ever to have been a debt at all, was, at the time of the execution of the mortgage, time-barred, and that, therefore, it was not permissible for the mortgagor as the father and manager of the joint Hindu family to revive a time-barred debt, and to create a mortgage for such time-barred debt on the family property. A ground was, no doubt, taken in the memorandum of appeal that on the evidence the Court should not have held that there was any debt at all. In our opinion, we ought to have no hesitation in accepting the finding of the Court below that the debt was an honest debt but that it was time-barred at the time of the execution of the mortgage.
3. The case resolves itself then into a question of law, namely, whether or not the father of a joint Hindu family can legally revive a time-barred debt and bind the family property to secure its re-payment. Having regard to the decision of the majority of the Full Bench in the case of Chandra Deo Singh v. Mata Prasad 31 A. 176; 6 A.L.J. 263 (F.B.); 1 Ind. Cas. 479 it seems to us that we must find the existence of family necessity before we can hold the family property bound. It is very difficult to say that there would ever be any necessity for the father or manager of the family to revive a time-barred debt. Prima facie and looked at from a worldly point of view, it is very much against the interest of the family to revive such a debt. The very question was decided by a Bench of this Court in the case of Inder Singh v. Sarju Singh 8 A.L.J. 1099: 11 Ind. Cas. 737. It has been contended before us that we ought to hold under the circumstances of the present case that it was in the interest of the family that the time-barred debt should be revived. It is urged that the money was advanced upon very easy terms, and that, therefore, we should hold that the money could not have been obtained except on the condition of reviving the debt. In our opinion, there is no sufficient evidence on the record to show that it was for the benefit of the family that the time-barred debt of Rs. 5,000 should be revived.
4. It has also been contended that the father, even if he could not bind his sons, could bind himself, and that, therefore, the payments which he made should be considered as payments made in respect of his interest in the property. We do not consider that this argument ia sound. In our opinion, the payments which were made must be attributed to payments made upon foot of the mortgage to the extent for which it was a good and valid mortgage, that is to say, to the extent of the family necessity proved. There is nothing to show that, the payments were made by father out of separate funds.
5. Under these circumstances, we would have been quite prepared to have excluded the sum of Rs. 5,000 from the mortgage and dealt with the mortgage as if it had been made for an advance of Rs. 22,000 and no more. If we did this, however, we certainly should give the mortgagee interest upon Rs. 22,000 or so much thereof as for the time being remained unpaid, at a reasonable rate. We think under the circumstances that 9 per cent. per annum would not be an excessive rate of interest. In the mortgage deed itself, it was agreed that interest at that rate should be paid on over-due instalments. We find, however, that if we were to treat the mortgage as a mortgage for Rs. 22,000 only and calculated interest at the rate of 9 per cent. (allowing the mortgagors credit for any sums where the instalments which were paid were more than sufficient to keep down interest), the amount due on such calculation would admittedly exceed the amount of the decree of the Court below. Under these circumstances, we see no reason whatever for interfering with the decree of the Court below, and we accordingly dismiss the appeal with costs including in this Court fees on the higher scale. The decree will carry future interest at the rate of 6 per cent. per annum from the date of the decree of the Court below. To this extent we allow the respondent's objection. We extend the time for payment for six months from this date.