1. The plaintiffs-appellants in this case sued upon a mortgage of the 1st of March 1902. The, suit, which was filed in the month of July 1919, was within limitation by reason of the period prescribed for payment; but it is not denied that the plaintiffs' remedy against the mortgagors personally had long since become time-barred. The mortgagors were four brothers and it is admitted that they constituted on the date of the mortgage the adult members of a certain joint family., The suit is against three of the original mortgagors and a grandson of the fourth who is since deceased. The only question in issue before us in this appeal relates to the liability of the said grandson by name Kapil Deo Singh. The mortgage was for a thousand rupees; the details of the consideration have been fully set forth in the deed itself and in the judgments of the Courts below. Rs. 585 were set down as due on account of the principal and interest of five previous mortgage-deeds executed by different members of the family. The balance was paid in cash. The Trial Court came to the conclusion that the evidence produced on behalf of the plaintiffs was sufficient, under all the circumstances, to establish family necessity in respect of the entire consideration and it passed a decree for sale accordingly. Against this decree Kapil Deo Singh alone appealed. The lower Appellate Court has affirmed the finding of the Trial Court in respect of so much of the consideration as was paid in cash, and this matter is no longer in dispute before us. The learned District Judge however came to the conclusion that legal necessity was not proved in respect of any part of the item of Rs. 585 and the appeal before us challenges that finding. Inasmuch as the five mortgage-deeds which went to make up the consideration for this item of Rs. 585 were each and all of them alienations of joint family property, it is impossible to treat those deeds as in themselves evidence of antecedent debt in respect of which a fresh alienation of the joint family property on the part of the managing members could be justified. Certain arguments have been laid before us, the general effect of which is to ask us to reconsider the evidence as a whole, to take into account the circumstances of the case, the dates of the various transactions and to affirm the finding of the Trial Court rather than that of the lower Appellate Court. Most of the considerations so urged upon us would really only be admissible if this were a first appeal, On the question of necessity or no necessity we are bound by the finding of the lower Appellate Court, except in so far as that can be shown to offend against some principle of law. We have come to the conclusion that as regards a fraction of this part of the consideration the learned District Judge has committed an error in law. One of the earlier mortgage-deeds was itself executed in statisfaction of an older parol debt incurred on the 20th of April 1896. The learned District Judge seems to have thought that the liability to pay this parol debt could not be imputed to the defendant Kapil Deo Singh because that particular debt had been incurred by Lalu Singh, who was not the grandfather, but a brother of the grandfather, of the said Kapil Deo Singh. It seems to us however that the lower Appellate Court has in coming to this conclusion lost sight of the fact that the present suit is after all upon a mortgage-deed of which one of the executants was the grandfather of Kapil Deo Singh. We must take it, therefore, that this young man's grandfather accepted the debt which Lalu Singh had incurred as a debt properly payable by the joint family and for which he was himself liable along with the rest. We think this circumstance is sufficient to warrant a finding that to the extent of Rs. 100 with a proportionate share of interest thereon accruing, that is to say, Rs. 17 more as interest up to the year 1900, there was lawful necessity for the mortgage-deed in suit.
2. Before disposing of the appeal there is one other point which it is perhaps incumbent upon us to mention. It was contended on behalf of the appellants that the lower Court was not justified in finding on the materials before it that the defendant Kapil Deo Singh was alive on the 1st of March 1902 when the deed in suit was executed. Now, in the first place the finding in question, is really one of fact, so long as it rests upon a reasonable inference which the lower Appellate Court is entitled to draw from facts either proved or admitted before it. It is not open to interference on our part. Moreover, the plea is not in accordance with the frame of the plaint itself. If the plaintiffs had desired to plead that the mortgage which they were seeking to enforce was one contracted by all the members of the joint family living on the date of the mortgage and that Kapil Deo Singh, having been born subsequently to the date of the alienation, became from the date of his birth interested in the joint family property as it stood then, that is to say, subject to this alienation, the plaintiff should have said so plainly. It seems to us that on the contrary when they pleaded in the third paragraph of their plaint, and undertook to prove, that the debt was incurred for family necessity, they practically precluded themselves from raising this plea at a later stage.
3. The result is that we modify the decree of the lower Appellate Court, to this extent that we add to the sum of Rs. 414-15 for which that Court has held this mortgage to be valid, a further, sum of Rs. 117, The interest account will be worked out proportionately upon this basis. The appeal, therefore, succeeds to this extent and for the rest is dismissed. Parties must pay and receive costs throghout, including in this Court fees on the higher scale, in proportion to failure and success. As we modify the decree of the lower Appellate Court we further extend the period of payment to a date three months from the date of this judgment.