JUDGMENT

1. The action out of which this appeal has arisen was brought by Seth Nandlal and Seth Mojilal, now deceased and represented by Champalal son of Seth Mojilal, respondent 1, for enforcement of a mortgage dated 12th October 1928 (Ex. P-14) executed in their favour by Baa Kishoresingh, mortgaging thereunder full proprietary rights in mauz Selda which he held in maufi rights. It is common ground that on Rao Kishoresingh's death in 1930, this village along with other property passed to the appellant, Ram Bhimsingh by right of primogeniture. Out of 21 defendants in the suit, Ram Bhimsingh who was defendant 1 was the only contesting defendant; the other defendants being: alienees from Ram Kishoresingh or their legal representatives supported the plaintiffs on the main point in contest.

2. It is not disputed that the property in, Rao Kishoresingh's family passed by the rule of primogeniture and in fact the point is settled by the decision of their Lordships of the Privy Council reported in 15 NLR 176.1 The grounds on which defendant 1 opposed the present suit were briefly as follows: (a) That the mortgaged property, mauza Selda was a part of the Bhamgarh Estate which was the ancestral property in the hands of Rao Kishoresingh and this estate was impartible and inalienable by virtue of the original grant as well as by the ancient family custom of the mortgagor's family, (b) The alleged consideration of the mortgage in suit was a personal debt of Rao Kishoresingh and was not binding on the property in the hands of the defendant, who got it by right of primogeniture. It was also averred that the mortgage was not justified by legal necessity as the mortgagor had no necessity to borrow having in his hands sufficient funds from income from the property and from Government pension, (c) That the-defendant was not aware of the fact of the mortgage and he therefore denied the execution, attestation and consideration of the mortgage in suit. The plaintiffs, in their replication, denied the defence completely, including the alleged inalienable character of the property. The alleged grant and also the family custom were denied and it was properly complained that the defence in that respect was very vague. In reply, defendant 1 in his oral statement dated 15th November 1938 averred that the Bhamgarh Estate was in the defendant's family from time immemorial and so far as tracable from Government record at least from the time of the Moghul Emperors, though the defendant has in his possession no sanad or any other document in evidence of the grant from the Moghul Emperors. The defendant asserted that the property was inalienable on account of the lost grant as well as the family custom of inalienability and he mentioned in his oral statement dated 16th December 1938 three judicial decisions in which the unsecured debt of the holder of the property was held not realizable from the estate after it passed into the hands of the successor. In the defendant's oral statement recorded on 4th January 1939 he admitted that in 1865 a sanad relating to this property was granted by the Government of India (British Government) to Rao Daulatsingh, the defendant's predecessor, granting full power of alienation by gift, sale, adoption or otherwise. It was, however, contended that this could not affect the pre-existing family custom against alienability. The plaintiffs, on the other hand, pleaded alternatively that even if there was any custom as alleged it ceased to exist after the grant of 1865 and also by the conduct of Rao Kishoresingh, the mortgagor.

3. The learned Judge of the lower Court, after a careful survey and a correct appreciation of the oral and documentary evidence on record, held that the mortgage deed in suit was duly executed and attested and it was for a valid and binding consideration and was justified even on the ground of legal necessity. It was further held that the Bhamgarh Estate was not inalienable by virtue of the grant or family custom and no such grant and family custom were established. The claim of the plaintiffs was decreed in full.

4. Defendant 1 (Rao Bhimsingh) has alone preferred an appeal against the decree of the lower Court and has reiterated the grounds raised by way of defence in the lower Court. The learned counsel for the appellant argued before us two points, first, that the due attestation of the mortgage deed in suit was not proved, and second, that the property mortgaged was inalienable and therefore the mortgage was void and inoperative in law.

5. On the point of attestation we are in complete agreement with the finding of the first Court and we did not, therefore feel the necessity of calling upon the respondents to answer.

6. The present definition of the term ‘attested’ as contained in Section 3 of the Transfer of Property Act, with the exception of words ‘and shall be deemed always to have meant’ was enacted by Act 27 [XXXVII] of 1926 and the words noted above were added by Act 10[X] of 1927 with a view to clarify that the definition had a retrospective effect. By Act 31[XXXI] of 1926 a proviso was added to Section 68 of the Evidence Act, according to which the examination of an attesting witness in proof of the execution of a registered mortgage deed was not necessary unless the execution thereof by the person by whom it purports to have been executed was specifically denied. As held in 52 Bom. 2192 a statement that the defendant had no knowledge of the mortgage bond does not constitute a specific denial. In para. 3 of the written statement filed by defendant 1 (appellant) in the present case, he stated that he was not aware of the fact of the mortgage in suit and the execution, attestation and consideration of the mortgage were therefore denied. It was nowhere specifically denied that it was signed by Rao Kishoresingh or that the signature appearing on the deed as the executant was not his. The plea would not therefore amount, within the meaning of the proviso to Section 68 of the Evidence Act, to specific denial and the examination of an attesting witness was not necessary the document could be legally proved by examining any witness who could depose to its execution such as Maujilal (P.W 3), one of the plaintiffs in the present case. We need not, however, pursue this matter further as we do not rest our judgment on this narrow basis.

7. The document bears the signature of two persons, viz., Balmukund and Amritrao as witnesses and they are examined as P.W 9 and P.W 10 respectively. In these provinces the witnesses depose usually in Hindi or in Marathi and it is translated and recorded in brief by the Judge in English. The deposition as recorded is not therefore a verbatim report of what the witness deposed. The deposition of Balmukund (P.W 9) as recorded is, ‘This (i.e, the mortgage deed dated 12th October 1928) was attested by me and executed by Rao Kishoresingh in my presence. Amritlal also attested in my presence.’ Similarly, the deposition of Amritrao (P.W 10) is ‘I attested it (i.e, the mortgage deed dated 12th October 1929) and it was executed by Kishoresingh in my presence.’ An experienced Judge who recorded these depositions would not have used the word ‘attested’ unless he was satisfied that what was deposed to by the witnesses satisfied the requirements of attestation as defined by Section 3 of the Transfer of Property Act. The depositions of these witnesses, which are not challenged by way of cross-examination on this point, leave no manner of doubt that the deed was executed and attested at the same sitting; the witnesses saw the executant sign and they in their turn signed in presence of the executant. We examined for ourselves the original document and we are satisfied that the document appeared to have been scribed, executed and attested with the same ink and there was nothing on the face of the document negativing the presumption of due attestation permissible in law according to the Well-known maxim ‘omnia præsumuntur rite et solenniter esse acta donee probetur in contrarmm; vide, 2 N.L.R 103 and 26 N.L.R 2774 at p. 281.

8. The learned counsel for the appellant contended that the evidence on record did not establish that the two attesting witnesses put their signatures in the presence of the executant and he relied on A.I.R 1939 P.C 117 : ILR 1939 KAR 222.5 We do not agree. It is true that no direct question on this point was put to the witnesses. But when it is positively deposed that the executant signed in the presence of the two attesting witnesses and the witnesses signed in the presence of each other and there is no suggestion that the execution and attestation was not done at the same sitting it is almost certain that the witnesses signed the document in the presence of the executant. The Privy Council decision relied on by the learned counsel is distinguishable as there the fact of due attestation was sought to be proved on the strength of the proceedings relating to registration including the signatures of the two identifying witnesses. Their Lordships duly pointed out that the particulars endorsed on documents under Section 58 of the Registration Act, did not include facts necessary for proving due attestation of the deed and the fact that the witnesses are present before the registrar for the purpose of identification only.

9. We therefore hold, agreeing with the lower Court, that the mortgage deed in suit was duly attested.

10. The question which next calls for consideration is the alleged inalienability of the property and the invalidity of the mortgage in suit on that account. The appellants are at a disadvantage in this matter as in the first litigation regarding Bhamgarh Estate when ended with the decision of the Judicial Committee reported in 15 N.L.R 176 it was remarked by their Lordships that no restraint on alienation was imposed in other respects by this custom, i.e, by the special family custom pleaded in that case. The second litigation which ended with the decision of the Judicial Committee reported in 25 N.L.R 1216 was for specific performance of the agreement dated 11th November 1912 whereunder Rao Kishoresingh agreed to sell mauza Khedi, one of the villages forming part of Bhamgarh Estate. In this litigation, the custom, of inalienability, though highly relevant, was not pleaded and their Lordships of the Privy Council passed a decree for specific performance, though in view of the finding that compensation in money was an adequate relief as contemplated under Sections 12(c) and 21(a) of the Specific Relief Act, the relief actually granted was for payment of Rs. 20,000 as compensation. This decision was not possible if the property was inalienable and the agreement was void on that account. The Divisional Bench of this Court in I.L.R (1941) Nag. 6327 held that the Bhamgarh Estate was not inalienable and the family custom pleaded in that respect was not established; it is said that an appeal against this decision is pending before the Judicial Committee. In Miscellaneous Judicial case No. 17 of 1934 (Ex. P-16) and Miscellaneous Judicial case No. 24 of 1934 (Ex. P-29) the custom of inalienability pleaded by the present appellant was not established.

11. The defendant's plea that the property was inalienable by virtue of a grant by the Moghul Emperor as well as by ancient family custom lacks in clarity and in precision. As to precision, the appellant has not given the time and the occasion of the alleged grant or the particular Emperor who gave it though in one of his previous statements (Ex P-15) the appellant stated that he was informed by his father that the estate was given to their family by Muhammad Ghori. No sanad or a writing is produced in evidence of this alleged grant and the appellant admitted that he had none in his possession or to his knowledge. As to clarity the defendant has not pleaded that a family custom existed at the time of the alleged grant and was merely recognized thereby. If inalienability was based on the particular tenure that was granted then there is no scope for a family custom. The conduct of the family in confirmation of the tenure granted should not be confounded with a custom of inalienability which pre-supposes an absence of a grant or contract.

12. Let us, however, assume that what was meant to be pleaded was an ancient family custom subsequently confirmed by the alleged Moghul grant which is the most favourable interpretation for the appellant, though it is argued by the learned counsel for the respondent that the plea as actually taken destroys itself. It is, however, to be noted at this stage that, according to the appellant's plea, impartibility and inalienability are based on one and the same custom. This may be possible but inalienability is not a necessary concomitant or a necessary result of impartibility. It is so held in several cases but it may be sufficient to refer to the decision in 13 Beng. L.R 4458 which was noted with approval by their Lordships of the Privy Council in 10 All. 2729 at p. 288 where their Lordships observed thus:

“It had been previously held by the same Court in a case in 13 Beng. L.R 445, where the plaintiff alleged that the descent of the estate was governed by Mitakshara law, and that by the usage and custom of the family the estate was impartible and descendible according to the law of primogeniture on the male heirs of the original grantee, the estate was not on the case stated shown to be inalienable. Their Lordships think this is the correct view.”

13. Their Lordships further observed

“the inalienability of the estate depends upon customa which must be proved, or it may be in some cases, upon the nature of the tenure.”

14. It is admitted by the appellant that he and his father were members of a joint Hindu family governed by the Mitakshara and the family was governed by that law except to the extent to which it was abrogated by the family custom. It has also been held in A.I.R 1923 Mad. 40210 on a review of the entire case law on the subject that the succession to an impartible estate is governed by the rule of survivorship if it is joint family property and by the rule of inheritance if it is a separate property. It was so held in the well-known decision of their Lordships of the Privy Council known as the ‘Shivaganga case’ reported in 9 M.I.A 6611 and which was followed in numeroua casea. The property of a joint Hindu family governed by Mitakshara is not impartible and the father can alienate it for the satisfaction of his antecedent debta not tainted with illegality or immorality or for legal necessity of the family or the benefit of the estate. One who pleads against the ordinary law, such as the appellant does in the present case on the strength of the alleged family custom, has a heavy burden to discharge. It was observed by their Lordships of the Privy Council in 3 I.A 25912 that a custom must be ancient, certain and reasonable and has to be construed strictly. A custom cannot be enlarged beyond what is established by parity of reasoning. It is easier to prove a custom supplementing the law but the onus is necessarily heavy where a family custom is pleaded in derogation of the prevailing law as was observed by the Judicial Committee in 24 ALL. 27313 where a family custom was sought to be established by relying on four instances of a comparatively modern date. Their Lordships of the Privy Council observed:

“It is obvious that a family custom in derogation of the ordinary law cannot be supported on so slender a foundation.”

15. The custom that is pleaded by the appellant is a family cuatom (Kulachar) as opposed to a local or a territorial custom (Deshachar). The onus of establishing a family custom is specially heavy and more difficult to discharge. Instances may not be absolutely necessary to establish cuatom but they furnish the best and most reliable evidence in proof of custom. To prove a family custom of a particular family instances from other families are not relevant unless the closest possible analogy between these families is established. Though there is a greater latitude in admission of evidence in proof of an ancient custom and even hearsay evidence is to a certain extent admissible, still the evidence must, before it is admitted in proof of a custom, conform to certain well established principles incorporated within the relevant provisions of the Evidence Act.

16. Before we enter into the actual proof of the alleged custom, it is necessary to note the previous history of the family as can be gathered from the Settlement Keport of Captain Forsyth published in 1870. Rajputs, the ancestors of the appellant, are said to have come from the north and they occupied the central Nimar some 20 generations ago. About 3 or 4 centuries prior to the Muhammadan conquest of Nimar, the Bilala families to which the appellant belongs: subdued Bhila and established themselves as chiefs. As they had amongst them an institution of a ‘Gaddi’ the succession to the property was by primogeniture. After the Mahomedan conquest these chiefs were deprived of whatever royal powera they had and they or at least some of them were constituted ‘Zemedars’ or fiscal officers and they were allowed to retain villages in their possession. It also appears that the Rajput families were given grants in lieu of military services which they were expected to render to the Muhammadan conquerors: vide para. 115 at page 58 of the Report. The exact character and nature of the estate and the tenure under which the property was held by these families under the Mahomedan rule is left in obscurity. There is no evidence in this case, either oral or documentary, which throws light on this point except the preamble to the sanad granted by the British Government on 18-12-1865. The preamble runs thus:

“Whereas you formerly held the office of Zamidar as a Pargana-officer in the District of Nimar enjoyed certain allowances, by way of Zirat, Jagheer, and cash percentages and whereas the services you rendered in that office will not in future be required by the Government…. etc.”

17. It is thus clear that the ancestors of the appellant were, under the Mahomedan rule, pargana officers and they were remunerated for their servicea in the shape of certain allowances and concessions.

18. It is apparent that the institution of a ‘gaddi’ necessarily requires a holder of a ‘gaddi’ and he is called ‘Gaddi-Nashin’. As only one-person can be ‘Gaddi-Nashin’ at a time, the succession to the ‘gaddi’ is according to the rule of primogeniture. It does not, however, follow that the estate held by the ‘Gaddi-Nashin’ or the holder of the ‘gaddi’ must be inalienable. In fact, the Emperors and Kings in ancient times, both Hindus and Mahomedans, were freely making grants of property in favour of religious institutions and even in favour of persons either in lieu of services rendered or otherwise. The property in their hands was thus not inalienable. It is well established that where property is descendible by rule of primogeniture the holder of the property is the absolute owner thereof and even if such property be joint Hindu family property governed by the Mitakahara the son or the sons of the holder have no vested interest in it. In 10 ALL. 272 the validity of a gift deed executed by the father in a Mitakshara joint Hindu family who had succeeded to the property under a rule of primogeniture was challenged. It was prima facie invalid under the school of Hindu law by which the family was governed. It was however held valid by their Lordships of the Privy Council because as a result of the custom of primogeniture even the eldest son of the holder of the property had no vested interest in the property and was not a co-sharer in it along with his father and consequently the father had an absolute right to dispose of the property by transfer inter vivos or by a will. This decision was no doubt criticized by Golapchandra Sirkar in his book on Hindu Law and by others as well. It is however binding on us and as was observed by their Lordships of the Privy Council very recently in 56 ALL. 46814 the view taken in that case has been in force so long that it cannot now be disturbed. The inalienability (save for a proper cause) of a joint family property is founded on the interest which other co-parceners have in the property and which they can enforce by a partition at any time they choose. The absence of vested interest by other coparceners and consequently the absence of power to demand a partition empowers the holder for the time being to alienate the property in any maimer he likes. The learned counsel for the appellant tried to distinguish the case of a mortgage from other testamentary and non-testamentary alienations but we do not see any force in that distinction.

19. Let us consider one more argument of the learned counsel for the appellant at this stage. According to him the custom of inalienability should be presumed from the very fact that the property in the family was not alienated by the holders prior to Rao Kishoresingh and that it was retained in the family, foe, some centuries past. There is no evidence on record of transactions or alienations, if any, prior to 1865 and it is hazardous to speak definitely one way or the other on this point. The law on the subject is however clear. Their Lordships of the Privy Council observed in 10 ALL. 272 at p. 289 that the absence of evidence of an alienation without any evidence of facts which would make it probable that an alienation would have been made cannot be accepted as proof of a custom of inalienability. This is what was again observed by their Lordships of the Privy Council in 54 Cal. 955.15

20. The plaintiffs attempted to place on record a certified copy of the mortgage deed dated 11th February 1886 by Rao Ramsingji, the holder of the Bhamgarh Gaddi but it was not admitted by the lower Court on the ground that it was filed late. The document has been again produced in this Court and it is prayed that it should be admitted into evidence under O. 41, R. 27 of the CPC. In our opinion, it was the duty of the plaintiffs when they had to meet a case of inalienability to search at the very initial stage of litigation the public records and particularly the Registration department to find out alienations of property by the defendant's ancestors. We are not satisfied that the late production of the document was justified and in any case we see no sufficient ground to interfere with the discretion exercised by the lower Court judicially. We have, however, on record documents showing alienations by Rao Kishoresingh from 1923. These documents are Exs. P-25, P-24, P-23, P-22, P-21, P-20 and P-19. These are sales of malik makbuza and maufi lands in villages appertaining to the Bhamgarh Estate. Further Rao Kishoresingh mortgaged one of the malguzari villages on 12th April 1927 and thereafter the entire property consisting of maufi and malguzari villages in the Bhamgarh Estate was mortgaged by Rao Kishoresingh and the appellant on 17th April 1929. It was primarily to satisfy the debt due on the mortgage dated 12th April 1927 that Rao Kishoresingh executed the mortgage deed in suit on 12th October 1928. The appellant explained his association in the execution of the mortgage deed dated 17th April 1929 on the ground that it was due to undue pressure of his father. We do not find much substance in the explanation. The appellant applied on 8th February 1930 to an executing Court (vide Ex. P-17) for extension of time to satisfy the decree on the ground that he was raising funds by alienating his property. It is thus clear that not only Rao Kishoresingh but even the appellant regarded the property as alienable. The learned counsel for the appellant attempted for the first time before us to restrict the custom of inalienability only to villages held in maufi rights, thereby suggesting that the transfers of malguzari villages and malik makbuza lands did not offend against the custom of inalienability. The plea of the defendant was that the Bhamgarh Estate was inalienable. This estate as has been deposed to by Sujatkhan (D.W 4) and Ramchandrarao (D.W 9) consisted of three maufi villages, four malguzari villages and lands. The learned counsel cannot be permitted to narrow down or extend the scope of the custom as pleaded. Besides the above alienation, Rao Kishoresingh alienated village Malegbon as deposed to by Haji Abdulji (D.W 1) and Sahib Mahtabsingh (D.W 2). This village, according to the evidence on record, formed part of the Bhamgarh Estate but was given for maintenance to the junior branch of the family i.e to Thakur Sher-singh, Rao Kishoresingh's paternal grand-father (vide genealogical table of the family in the Privy Council case 15 N.L.R 176 at p. 178). If the custom of inalienability existed in the family this village as well was inalienable. The three judicial orders mentioned by the appellant in his pleadings, at p. 4 of the record are not relevant. In those orders it was held in execution proceedings that a debt of the holder of the ‘Gaddi’ cannot be realized from estate attached to the ‘Gaddi’ after it passed into the hands of the successor by right of primogeniture. These were cases of unsecured debts and have to be distinguished from cases of alienations. The debts are not binding as the holder of the property for the time being does not at his death leave the property attached to the ‘Gaddi’ as his assets and his successor takes that property in his own right and not as a legal representative of the holder (the deceased). Thus, there is no judicial decision in which the family custom of inalienability has been found in the appellant's favour. It appears from Ex. P-28 that the applicant applied to the Debt Conciliation Board in 1935–1936 and agreed to alienate malik lhakbuza lands in mauza Mundi in satisfaction of his debts due to a creditor, Gulabchanda Manikchanda.

21. The sanad granted by the Government of India (Ex. 1-P-(A)) on 18th December 1865 appears from its recitals to be a fresh grant with fresh conditions and not a mere recognition or a renewal of the grant, whatever and wherever it may be, by a Moghul Emperor. This fresh grant was accepted by the appellant's ancestor in substitution of whatever allowances and concessions were enjoyed by him from the Moghul period. The power of alienation mentioned in this sanad may be due either to the fact that the property was alienable from 1865 or to the decision of the Government of India to grant the property with power of alienation. In either case it is quite clear from the sanad that after 1865 the Bhamgarh Estate was not inalienable and the subsequent conduct of Rao Kishoresingh and of the appellant is consistent with this position. It is remarked in Captain Forsyth's report, p. 143, that quit-rent was imposed in view of the free-hold tenure being made transferable. The British Government, as a conqueror was not bound by the grants made or allowances given by the conquered (vide, A.I.R 1947 P.C 116) though the conqueror may respect the same with such variations as may be deemed proper. The special tenure with an incident of inalienability if created by a Moghul grant must come to an end with the termination of that grant and the incidents attached to the property now are those which are granted by the last grant, which in this case was the grant by the Government of India on 18th December 1865. The appellant cannot, therefore, rely on the alleged grant by a Moghul Emperor as the foundation for the right of inalienability claimed by him. It is however dear, as held by their Lordships of the Privy Council in 15 N.L.R 176 that neither the alleged Moghul grant nor the sanad of the Government of India would destroy the family custom, of the appellant's family if it existed before these grants. We have, therefore, to find out from the evidence on record if family custom in favour of inalienability before the Moghul grant is established.

22. There is no documentary evidence on record in favour of the custom pleaded and even the report of Captain Forsyth does not speak of the existence of a custom in pre-Moghul times. Sir Reginal Craddock in his note on the status of zamindars in the Central Provinces expressed an opinion in 1889:

“It must at once be conceded that these zamindarg never had any transferable rights in their estate until they were given proprietary rights.”

23. He was speaking of Bhandara, Balaghat and Raipur zamindars. Even assuming that the same applied to Nimar zamindars — there is no basis for this assumption it does not take us very far. In the first place, we have not been told the evidence on which this opinion is based, and secondly much evidentiary value cannot be attached to the opinion expressed in these re-ports, however eminent the author of the report may be: vide, 24 N.L.R 25.17 It may be, as observed in I.L.R (1941) Nag 632 at page 641, that impartibility and inalienability are often so closely associated that a young officer, as Sir Reginal Craddock was in 1889, considered that what was impartible was also inalienable. This opinion does not more over support the appellant as even according to it, the Bhamgarh Estate of the appellant would be alienable at least after 1865. We concur in what was observed by the Divisional Bench of this Court at p. 644 in I.L.R (1941) Nag. 632:

“Further in this case we have the grant. This grant (Ex. D-9) shows that Rao Doulat Singh in 1865 was given a quit-rent tenure with fall power of alienation. We are not disposed in this case to restrict the rights of this family to those conferred by this Sannad. We are prepared to assume that if we looked ??? it to the ancient rights we should find something different from a quit-rent holding. We should find a joint Hindu family with an impartible estate devolving by a custom of primogeniture. But we can find nothing to show that this estate was inalienable. On the contrary for many years past the person in enjoyment has alienated.”

24. The oral evidence on record, even if accepted, does not establish the custom of inalienability either before or after the alleged grant by a Moghul Emperor. (After discussing the oral evidence with regard to the custom of inalienability their Lordships proceeded as follows.)

25. The family custom, unlike local custom can also be put an end to this was pointed out by their Lordships of the Privy Council in 1 Cal. 186.18 It was held in 27 ALL. 203 that though the burden of proving discontinuance of a custom is on the person who pleads it, slight evidence may be sufficient to discharge that burden, if other circumstances and the conduct of the members of the family which relies on that custom are consistent only with the discontinuance of the custom. In the present case, proprietary right with power of alienation was ranted in 1865 and accepted by the appellant's ancestor. Thereafter the appellant's father and the appellant himself alienated several items of property and did acts which are inconsistent with inalienability of the family property. Thus it is proper to infer that the custom of inalienability was discontinued at least from 1865.

26. The mortgage deed in suit was for a consideration of Rs. 6500 of which Rs. 4354-15-3 were due on a prior mortgage bond dated 13th April 1927 for Rs. 3500 and Rs. 2-45-0-9 were required for the expenses of litigation in connection with the estate. The mortgage deed of 13th April 1927 for Rs. 3500 was executed for the discharge of an antecedent liability of Rao Kishoresingh due to Abbas Ali Bohara who had assigned the same in favour of the mortgagees. Thus, out of Rs. 6500 Rs. 4354-15-3 were due on account of the antecedent debt of Rao Kishoresingh and, according to the Mitakshara School of Hindu law, would be binding on his son, even apart from the question of legal necessity. Maujilal (P.W 8), one of the mortgagees, has deposed to the bona fide enquiry made by him as to the needs of Rao Kishoresingh and of his being reasonably satisfied that Rao Kishoresingh was in need of Rs. 2145 for the purpose of litigation it is clear from this record that Rao Kishoresingh had to fight out very costly litigations to acquire and preserve the Bhamgarh estate and he succeeded in doing so. He had naturally to incur heavy costs and had to borrow money for the litigations. The mortgagee was eatisfed on bona fide enquiry that Rao Kishoresingh's representstions regarding his needs were true. He was not bound to see to the application of the money borrowed. In these circumstances the mortgage debt would be binding on the appellant, assuming that he had succeeded to the estate under ordinary Hindu law by right of survivorship. As the property was governed by the custom of primogeniture the right of Rao Kishoresingh to mortgage the property was absolute and his son, the appellant, has no right to challenge the same.

27. Our conclusions therefore are: (i) That the mortgage deed sued upon was duly executed and attested, (ii) That the defendant failed to establish that the Fhaingnrh estate was inalienable as a result of a grant from a Moghul Emperor. No such grant is established; at any rate, it is not established that the property was inalienable according to the tenure granted, (iii) It is not established that the property was inalienable as a result of an ancient family custom. No such custom is established either before the alleged grant by a Moghul Emperor or thereafter, (iv) That the plea of inalienability as a result of tenure granted, if any, by the Moghul Emperor is not available to the appellant as the result of a fresh grant by the British Government in 1865 with power of alienation, (v) That the custom of inalienability, assuming that it ever existed in the appellant's family, was discontinued or put an end to in 1865 and it did not exist thereafter, (vi) That the mortgage was binding against the appellant on the ground that the debt was partly for the antecedent debt of the-father and partly for legal necessity; the mortgagee having satisfied himself about the same on reasonable and bona fide enquiry, (vii) As a result of the custom of primogeniture Rao Kishoresingh had an absolute right to mortgage the property and that right was not liable to be challenged by the appellant in the same mannes as a joint Hindu son could do, if the property mortgaged was ancestral or joint family property. None of the other grounds raised in the memorandum of appeal were urged before us. They were either expressly or impliedly abandoned. The appeal is dismissed with costs.

28. Appeal dismissed.