1. The plaintiff's suit for sale against a Hindu mortgagor and his descendants, was dismissed on the ground that the money was not borrowed for legal necessity. In the hypothecation bond the recital was that money was wanted to pay a pre-emption decree and to defray other necessary expenses. It is in evidence that on the same date, the 16th July 1910, Rs. 2,000 out of the consideration of Rs. 3,000, was paid into Court which passed the pre-emption decree and the pre-empted property was acquired by the mortgagor Ganga Singh. As regards the balance of the consideration we agree with the lower Court that there is no satisfactory evidence to prove legal necessity thereof. The learned Counsel for the plaintiff urged that money was wanted for the payment of revenue and to redeem family ornaments. The evidence, however, has not been believed by the lower Court and we are not prepared to disagree when we ourselves have not had an opportunity of seeing the witnesses.
2. The pre-empted property along with his own equal share in the same village was mortgaged with possession by Ganga Singh to one Meherban Singh for Rs. 12,500 in 1911. Subsequently Ganga Singh's sons sued Meherban Singh to have the deed cancelled and in the plaint of that suit the plaintiff of that suit, Hardeo Singh major and his minor brother and sons, claimed this pre-empted property as joint ancestral property. It is clear that Hardeo Singh thereby recognized the necessity for the pre-emption of the property for which purpose Ganga Singh borrowed the sum of Rs. 2,000 from the plaintiff of this suit. It will also be noticed that the property which Ganga Singh purchased for Rs. 2,000 was mortgaged with possession for more than three times that amount, i.e., Rs. 6,250.
3. The learned Judge of the lower Court held that money required for the payment of pre-emption decree could not be said to have been borrowed for legal necessity of the family. He relied on the Bench ruling in the case of Shankar Sahi v. Baichu Ram : AIR1925All333 . The head-note says:
Ordinarily a Hindu father cannot encumber joint ancestral property to acquire the necessary fund to pre-empt other property.
4. The word 'ordinarily' is explained by the learned Judges who were of opinion that the act of purchase must be a defensive act something undertaken for the protection of the estate already in possession. Quoting certain observations of their Lordships of the Privy Council in the case of Palaniappa Chetty v. Deivasikamony Pandara Sannadki  40 Mad. 709, their Lordships say that all the acts contemplated by their Lordships of the Privy Council were in the nature of a shield, that is, involving an expense which arose and which had to be met in order to keep alive the whole or some portion of the ancestral property, We have read the evidence in the case and we are of opinion that the present case satisfies the conditions laid down in the ruling quoted above. The plaintiff stated that Meherban Singh, son of Ram Singh, was a very influential person and for this reason. Ganga Singh and his family were afraid that if Meherban Singh became a co-sharer of half the property of the village there would be litigation. This statement was supported by the testimony of a Thakur of the mortgagor's brotherhood, Hira Singh and a former karinda of the mortgagor, Janki Prasad. They both stated that Ganga Singh and Meherban Singh were not on good terms, and there was an apprehension of dispute in future and loss to the ancestral property of Ganga Singh if Meherban Singh was permitted to take possession of the other half of the village.
5. When Ganga Singh had the necessity of mortgaging property to pay off debts, he did not mortgage only the pre-empted property or his ancestral property, but mortgaged the entire village to Meherban Singh to avoid disputes in case of his and Meherban Singh becoming co-sharers in the same village. The property which was pre-empted belonged to Ganga Singh's brother, and was sold by that brother to Meherban Singh. No evidence was led on behalf of the defence to contradict the allegation of the plaintiff that pre-emption was necessary to safeguard the interest of the family in the ancestral property. The defendant, Hardeo Singh, was examined as a witness after the plaintiff's evidence was concluded, but he did not contradict the statement made by the plaintiff and his witnesses. He and his witness Mohan Lal deposed falsely that the pre-emption resulted in a loss.
6. Obviously it did not result in a loss because the property which was purchased for Rs. 2,000 was a year later mortgaged for more than three times that amount.
7. For these reasons we are of opinion that the sum of Rs. 2,000 was borrowed for legal necessity. It was objected that I per cent per month, interest with yearly rests was excessive. We do not think that the interest was unusually high or that the manager of the family was imprudent to have borrowed at that rate of interest.
8. We set aside the decree of the lower Court and decree the plaintiff's suit for sale. The usual decree under Order 34, Rule 4 shall be prepared, The principal amount shall be Rs. 2,000, and interest at the bond rate shall run up to six months from to-day's date; after that the interest shall stop. The plaintiff shall receive proportionate costs of all the Courts and the defendants shall receive their costs in proportion to plaintiff's failure of the suit.