1. This is an appeal by a defendant-mortgagee arising out of a suit for partition of certain properties. Originally a mortgage was made by Ram Dhan, the plaintiffs' grandfather, in the year 1902 in favour of the mortgagee's predecessor. Subsequently, after the grandfather's death and in the year 1919, three out of his four sons, Narain Singh Deo Sukh and Punni Lal, executed a fresh mortgage in lieu of the amount due on the previous document. It is conceded that Narain Singh was the eldest member of the family then alive and was the karta. Tikam Singh, the plaintiffs' father, the fourth son of Ram Dhan, was alive. He was probably not then in the village and was living with his father-in-law. He did not join in the deed. By 1919, when the second document was executed twelve years had expired since the first mortgage. In view of a clause entitling the mortgagee to recover the whole amount in case of default of payment of interest, the mortgage debt had become time barred according to the rulings of Gaya Din v. Jhuman Lal AIR 1915 All 189 and Shib Dayal v. Meharban : AIR1928All1 . In the present case the mortgagee had also pleaded payment of further interest so as to save limitation; but that plea was not substantiated in the opinion of the learned District Judge.
2. The Court of first instance held that the plaintiffs were bound by the mortgage of 1919 inasmuch as it had been executed in lieu of a debt due from the plaintiffs' grandfather Ram Dhan which was an antecedent debt. The learned appellate Judge has, however, come to a contrary conclusion and held that the plaintiffs are in no way bound to pay the mortgage of 1919. The learned advocate for the appellant contends that on the authority of a recent Full Bench case Gajadhar v. Jagannath AIR 1924 All 551 (F B). even a time barred debt is a good debt and can form a good consideration for an alienation by a managing member of a joint Hindu family. His contention is that a time barred debt is a debt under the Hindu Law which did not recognise any rule of limitation. That case however is clearly distinguishable. The Full Bench had to consider the power of the father of a Hindu son to transfer of property in lieu of an antecedent debt of his own which had become time-barred. The Full Bench came to the conclusion that such a debt although the remedy to recover it was barred, still existed as a debt and was therefore, an antecedent debt in lieu of which a father could alienate the property. The case of a mere manager of a Hindu family is however different. He has no power to alienate the property in lieu of any antecedent debt; of his own An alienation by a managing member can only be up-held if the transfer is for legal necessity or for the benefit of the family. The point to be considered, therefore, is whether the mortgage made by Narain Singh, the managing member of the family, can be said to have been for legal necessity. If the legal remedy to recover the debt of 1902 had become time-barred by 1919 there was obviously no 'necessity' to pay this amount. The mere fact that Narain Singh, Deo Sukh and Punni Lal imagined that they were bound to pay it would not necessarily make it a legal necessity so as to make the alienation binding on Tikam Singh In this view of the matter it is open to Tikam Singh or his sons to repudiate his liability under this mortgage on the ground of want of legal necessity.
3. The other point urged on behalf of the appellant is that when the partition comes to be made the share covered by the mortgage-deed of 1919 should if it can be done conveniently and without prejudice to the plaintiff' right, be allotted to the other brothers and their descendants. On this point the learned Judge has not expressed any opinion one way or the other. In fact all that he has held is that plaintiffs are entitled to one fourth property on partition and that the share of the plaintiffs is to be free of liability for the mortgage of 1919. The question what would be an equitable and just method of partition will come up for consideration when the final partition will be carried out. The appeal is accordingly dismissed under Order 41, Rule 11, Civil P.C.