9911796707
TMI Blog1926 (12) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... on his own application, apparently with a view to have determined in this action itself the question whether or not the equitable mortgage made by defendant 1 was binding on his half-share in the property. 3. It has thus come about that the pleadings in the case, so far as the liability of defendant 4 was concerned, were not as accurate as otherwise they might have been. On behalf of defendant 4, it being denied that the mortgage was binding on him, the parties went to trial on that issue generally, and Mr. Justice Krishnan who tried the case found it was so binding and granted a decree accordingly. It is from that judgment that defendant 4 has filed the present appeal. 4. In appeal it has been contended before us that the learned Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ately for the unexpired period of credit before which the payment is made. The contention, therefore, cannot be accepted that there is no debt due by the father before the expiry of the credit period, and in any case, it would have been obviously to the interest of defendant 1 to pay up the amount due even before the expiry of the credit period and earn a discount. 6. The learned vakil for the appellant referred in the connexion to the case of Bandhu Ram v. Ramkishun Sonar A.I.R. 1923 All. 535. It was held in that case that the amount secured by a mortgage not being payable for some considerable time could not be regarded as a pressure on the estate or the family as to justify an immediate alienation for the purpose of discharging it. Bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e original sum of ₹ 15,000 may be held to have been borrowed for paying off antecedent debts; but that is only the first item in the account; since then defendant 1 has paid into the credit of the account several sums of money. These payments would, according to the rules relating to the appropriation of payments, have reduced considerably the amount of the original debt; the amount now sued to be recovered, therefore, represents only moneys borrowed by defendant 1 subsequently: there is no evidence with regard to the purposes for which these later amounts were borrowed and, therefore, the suit mortgage cannot be supported in the absence of any evidence to show that these later borrowings were for the purpose of discharging the father ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule relating to appropriation of payments. 11. The view that we have thus taken on the two points argued before us would be sufficient to dispose of the appeal. But it seems to us that the decision of the learned Judge can be supported on a much broader ground. 12. It is admitted that defendants 1 and 4 belong to a caste or community of traders and that defendant 1's father was himself during his life time carrying on business in piecegoods. It is not contended before us that if the deceased father of defendant 1 had carried on such business till his death and defendant 1 had continued it subsequently he would not have been entitled to borrow moneys for the purposes of such business. But it appears that the business which was ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on possible. 14. From this it would also follow that too narrow a construction should not be allowed to be placed on such expressions as family trade or business and that with changes of civilizations and conditions what should be applied is not a rigid rule of law but the principle on which it is based. It seems to us absurd to suppose that if a family business should be found to have consisted in the purchase and sales of one commodity, purchase and sale of another commodity should be held to be outside the scope of the family business. The reductio ad absurdum of such a rigid rule may be seen if the rule is pushed to its logical extreme and it should be sought to be contended that the ancestral business consisted only on the purch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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