1. This was a suit by the respondents upon a mortgage made in their favour by the appellant on the 7th of December 1395. On the date of the mortgage, the appellant, with his brothers, Durga Prasad and Shiam Sarup and their children, constituted a joint Hindu family, and the appellant describes the property mortgaged as Mushtarkai-Durga Prasad waghaira. The respondents originally impleaded in this suit the appellant's brother, Shiam Sarup, but at their instance, his name was struck off the record, and the case proceeded against the appellant alone. The appellant put forward various defences, but the only one which I need notice now, was that the mortgage was invalid inasmuch art the property was the property of the joint family. The Munsif held that this defence was not open to the appellant and decreed the claim in full against the appellant and directed that in case of non-payment, the defendant's share in the property should be sold. An appeal to the District Judge was dismissed. The District Judge also held that it was not open to the appellant to plead the invalidity of his own mortgage.
2. In second appeal, it is contended that the decisions of the Courts below on this point are erroneous. 'It is pointed out that the mortgage itself discloses the fact that the mortgaged property was not the property of the mortgagor alone, but belonged to the joint family of which the appellant was a member. It seems to me that a mortgage of this kind is not void altogether, but is' voidable only at the instance of the persons whose rights are invaded by it. With reference to certain cases which have been cited in the course of the arguments, there appears to be a distinction between a mortgage of a tenure such as an occupancy tenure in Agra, the transfer of which is forbidden by the Legislature, and a mortgage of property, the transfer of which is not forbidden by the Legislature but is voidable at the instance of other persons. The case appears to me to be covered by the decision in Joti Prasad v. Aziz Khan 6 A.L.J. 5 : A.W.N. (1908) 263 : 5 M.L.T. 47 : 1 Ind. cas. 53 : 31 A. 11 where it was pointed out by this Court] that if the original mortgagor had been alive, he would not have been permitted to plead that he had no authority to make the mortgage. In that case, the mortgagor had mortgaged not only his own share but the shares of his sisters in the property. The case of Kidar Nath v. Naipal Singh 8 A.L.J. 1308 : 34 A. 155 : Ind. Cas. 922 was the case of a mortgage of a tenure, the transfer of which was forbidden by the Legislature. The third and fourth grounds of appeal have been abandoned. The decision of the lower Appellate Court appears to me to be correct. I dismiss the appeal with costs.