1. This appeal is connected with First Appeal No. 437 of 1925, both of which arise out of the same suit.
2. The suit was instituted by Lala Kishan Sahai and two others as mortgagees against defendant 1, Raghunath Singh, his brother Khair Singh a minor, and Raghunath Singh's son, Bhopal Singh also a minor. There were two other defendants who were made parties as subsequent transferees.
3. The suit arose out of a mortgage executed on 12th July 1916 by Raghunath Singh, defendant 1, and his father Sewak Ram, who has since died. The amount borrowed was a sum of Rs. 4,000. The plaintiffs pleaded that the mortgage was executed for legal necessity and was therefore binding not only on Raghunath Singh, one of the mortgagors, but on his minor brother Khair Singh, and also his minor son Bhopal Singh. Bhopal Singh alone contested the suit through his guardian. His contention was that the mortgage was not supported by legal necessity.
4. The learned Subordinate Judge found that there were four items which went to make up the entire mortgage money. These were the sums of Rs. 1,586, Rs. 1,800, Rs. 64 and Rs. 550.
5. As regards the first sum the learned Judge found that it was borrowed to pay an antecedent debt payable by the mortgagors. Accordingly he found that both defendants 2 and 3 were liable to pay the sum. He found that the sum of Rs. 64 had been obtained to meet the costs of the execution of the mortgage bond. In his opinion this amount was for legal necessity. The learned Judge accordingly made a decree for the sale of the property mortgaged to recover these we sums.
6. As regards the sum of Rs. 1,800, the learned Judge found that it had been borrowed to pay the purchase money for a pre-emption decree, and ho thought that the members of the joint Hindu family could not jeopardize the ancestral family property in order to purchase fresh property. He accordingly held that the mortgage for the sum of Rs. 1,800 was not binding on the family.
7. As regards the sum of Rs. 550, the learned Judge found that it had been paid by the mortgagees, but that there was no legal necessity to support the same. The learned Judge accordingly granted a personal decree for the sums of Rs. 1,800 and Rs. 550 against the defendants. Evidently the learned Judge meant to pass a decree against Raghunath Singh alone, but the decree passed ran against all the first three defendants.
8. Appeal No. 380 is by the plaintiffs, and appeal No. 437 is by defendant 3, Bhopal Singh.
9. In appeal No. 380 of the plaintiffs appellants contend that on the evidence the entire mortgage money was borrowed, either for legal necessity, or for payment of antecedent debts. The first question that therefore arises, with respect to the sum of Rs. 1,800, is this: Was there a debt existing at the date of the mortgage which Sewak Ram and Raghunath Singh were bound to pay? The learned Counsel for the plaintiffs-appellants has relied on two cases, namely the case of Nathu v. Kundan Lal  33 All. 242, and the case of Kapildeo v. Thakur Prasad  36 All. 17, as laying down the proposition that where a Hindu father borrows money to pay the purchase money under a pre-emption decree, he borrows money to pay an antecedent debt. This opinion has been dissented from in later cases and they are Bhagwan Das Naik v. Mahadeo Prasad Pal A.I.R. 1923 All. 298, and Shankar Sahai v. Baichu Ram : AIR1925All333 .
10. We have considered the point and we are clearly of opinion that no debt, in the proper sense of the word, existed on foot of the pre-emption decree. The preemption decree gave the option to the pre-emptor to obtain property on payment of money. A pre-emption decree does not carry any order for payment. The decree is always conditional, namely, in case of payment, certain property would belong to the plaintiff, and in case of nonpayment the suit would stand dismissed, probably with costs. The mere fact that in the case of nonpayment of the purchase money a decree for costs would be passed against the pre-emptor, cannot invest the whole transaction with the character of a debt. It may be pointed out that the amount of costs is usually very small as compared with the purchase money. The appellants' case therefore, so far as it is based on the principle of antecedent debt cannot be maintained.
11. Next it was argued by the learned Counsel for the appellants that according to the recent Full Bench case of Jagat Narain v. Mathura Das A.I.R. 1923 All. 454 (F.B.), a head of a joint Hindu family is entitled to make a fresh purchase of property. It was argued that this case has shaken the authority of the case of Shankar Sahai v. Baichu Ram : AIR1925All333 , and other cases which decided that a transaction by one member of a joint Hindu family which can bind others must be of a defensive nature. We have accordingly read the Full Bench case and we are of opinion that the facts of the case actually bring themselves within the purview of the decision in the case of Shankar Sahai v. Baichu Ram : AIR1925All333 .
12. The facts of the Full Bench case were these. A Hindu family possessed property which was situated far away from the place of residence and it was found to be inconvenient to manage the property. The adult male members of the family sold the property with the express purpose of purchasing nearer home so that the purchased property might be better managed. As a matter of accident, it happened that the purchase money was lost because the bank, in which the money had been put for safe custody, had closed its doors. As has been laid down by the Privy Council and in the case of Inspector Singh v. Kharak Singh A.I.R. 1923 All. 403, to find whether a certain transaction is binding on the family or not, its nature must be examined at the date of the transaction and it should not be judged by what happened later. On this principle the fact that the money was lost owing to the bank having collapsed had no bearing. The transaction was found by the learned Judges to have been for the benefit of the family. It was in fact in its inception, an act which was designed to protect or defend the family from an inevitable recurring loss, the property by reason of its situation yielding less than nearer property would do. As we have stated, the facts bring the case within the principle enunciated in the case of Shankar Sahai v. Baichu Ram : AIR1925All333 . Indeed it has been put forward by the learned Counsel for the parties before us that a particular purchase which involves the mortgaging of the family property may in very special circumstances amount to a legal necessity. For example, there may be a small patch of land situate inside a larger area owned by the family and the owner of that patch of land may be a constant source of trouble to the family. In the circumstances the purchase may be justified. We need not express any opinion on a hypothetical case. It is sufficient to say that each case will have to be judged on its own merits, and on the law as it stands, we are of opinion that this particular transaction cannot be upheld and that the appeal must fail as regards this point.
13. The learned Counsel for the appellants prayed that we might remit the case for further enquiry to the lower Court. The ground of his prayer was that when the learned Subordinate Judge decided this suit the appellants did not adduce evidence on the merits, necessity, and financial advantages of the transaction, because the case of Shankar Sahai v. Baichu Ram : AIR1925All333 , was sufficient for the purpose. It was argued that the plaintiffs might have, in view of the Full Bench case of Jagat Narain A.I.R. 1923 All. 454 (F.B.), Supra led evidence to show that there did exist circumstances which justified the father and the son to make the purchase by the preemption suit, but we find that no such ground was taken in the memorandum of appeal, and we are also of opinion that a remand of an issue is likely to encourage the parties to adduce false evidence. We therefore cannot accede to this request.
14. For the plaintiffs-appellants it was then contended that in any case the amounts of Rs. 1,800 and Rs. 550 ought to come out of the pre-empted property. As to this there can be no doubt. The minor members of the family repudiate the transaction of the purchase of the pre-empted property. In the circumstances they cannot possibly object to a mortgage by Sewak Ram and Raghunath Singh of the property which they had acquired by pre-emption.
15. We now take up the cross-appeal No. 437 of 1925. As already stated the learned Subordinate Judge gave a personal decree against the first three defendants. The suit was instituted more than six years after the making of the mortgage. The mortgage money was payable on demand, and, therefore, the personal decree was barred, at the date of the suit. This was overlooked by the learned Subordinate Judge. The decree therefore will have to be amended so far as it gives a personal right against the first three defendants to recover the money.
16. The result is that we partly allow both the appeals. The decree so far it permits recovery of the sum of Rs. 1,650 and interest out of the ancestral property will stand, and the sums of Rs, 1,800 and Rs. 550, the total of which comes to Rs. 2,350, will be recovered with proportionate costs out of the pre-empted property. This sum will bear interest at the stipulated rate up to the date of payment and thereafter at 6 per cent per annum. This sum of Rs. 2,350 with interest and proportionate costs will be the first charge on the pre-empted property. If any thing is left out of the pre-empted property after satisfying the two sums and the interest and proportionate costs, it will be appropriated towards the balance of the decree. If the pre-empted property be insufficient to pay the two sums of Rs. 1,800 and Rs. 550 and interest and proportionate costs, the balance will not be recoverable by the plaintiffs. The personal decree granted by the Court below is hereby set aside. A fresh decree will be prepared in this Court giving effect to the directions given above. Six months are allowed for payment. The plaintiffs will have their costs which will be added to the mortgage money. The costs will be split up in proportion to the sums which have been declared recoverable from the pre-empted property and the ancestral property.
17. The appeal of Bhopal Singh sucs ceeds, but having regard to the false statement made in the written statement of Bhopal Singh, we do not award him any costs in this appeal, nor do we give to the plaintiffs-respondents any costs of the appeal. The result will be that in first appeal No. 437 of 1925 the parties will bear their own costs.