JUDGMENT
1. This appeal arises out of a suit on foot of a mortgage, dated the 23rd August 1898. A number of defences were taken and amongst others was the defence that there was no legal necessity for the mortgage. The mortgage, we may mention, was made by a Hindu widow of the name of Musammat Parbati. The Court of first instance found that the mortgage was duly executed and that the consideration was paid. That Court did not expressly go into the question of legal necessity, nor was it necessary for it to do so if the view which it took on the question of res judicata was correct. The lower Appellate Court confirmed the decree of the Court of first instance. The defendants, Chhitar Mal and Debi Ram, have appealed.. They are the purchasers of a part of the mortgaged property. It is contended on their behalf that the Court below was wrong in holding that the question of legal necessity or the amount due upon the bond was res judicata. In our opinion their contention is well founded. It appears that a previous suit was brought on foot of a mortgage, dated the 7th of February 1896, by one Janki Prasad in whom that mortgage had vested. He made defendants to the suit the widow, who was then alive, Murli and Hira, from whom the appellants derived their interest, and the present plaintiff as puisne incumbrancer. It may be mentioned that Murli and Hira were impleaded in that suit as “donees” from Musammat Parbati. The present plaintiff raised as a defence to Janki’s suit that the whole or a portion of the money due under his mortgage of the 23rd of August 1898 went to pay off prior mortgages and that, therefore, he was entitled to hold up the earlier mortgages as a shield against the mortgage of the 7th of February 1896. At that time neither Murli nor Hira alleged that the mortgage of the 23rd of August 1898 was made without legal necessity and it is contended on behalf of the plaintiff that they were then bound to raise this question and not having done so they or their successors-in-title cannot now raise the question, having regard to the provisions of Section 11 of the Code of Civil Procedure. In our opinion the matter cannot be regarded as res judicata. In the first place that was a suit between Janki and certain sets of defendants. No issue was ever framed between the different sets of defendants. The issues which were framed in that suit were issues between Janki and the defendants generally or such of them as contested the suit. No question as to the amount of the mortgage now in suit or of legal necessity in respect of that mortgage could arise or did arise. This being so the question of fact as to whether or not there was legal necessity for the mortgage now sued upon remains undecided. We may point out that the rate of interest was not less than Rs. 37-8 per cent. compound interest per annum with monthly rests. As we have pointed out in other cases, legal necessity must be shown not only for the loan itself but also for raising the loan at an exceptionally high rate of interest. The Court below seems to have thought that because the plaintiff was only claiming Rs. 4,000 the claim was a very modest one. It seems to us that the learned Subordinate Judge, whose judgment was affirmed by the lower Appellate Court, overlooked the fact that within two years of the date of the mortgage no less than Rs. 1,720 had been paid on foot of’ this mortgage. We may also mention that in the case of a mortgage by a Hindu widow it is not sufficient merely to show that the widow had incurred previous debts, but it must be shown that those debts themselves were incurred for legal necessity.
2. One other point was raised by the appellants viz. : that the plaintiff had broken up the integrity of the mortgage. This allegation was founded on the fact that some years ago the plaintiff accepted a sum on foot of the mortgage from the purchaser of part of the property and released that portion, This question is, in our opinion, concluded by the decision of this Court iu Lachmi Narain v. Muhammad Yusuf 17 A. 63 : A.W.N. (1895) 6.
3. Before, however, deciding the appeal we refer the following issues to the Court below:
(1) Was there any legal necessity for the loan taken by Musammat Parbati on the 23rd of August 1898, and, if so, was it for the whole or what part?.
(2) Was there any legal necessity for borrowing at the rate mentioned above? If not, what would be the reasonable rate of interest having regard to the nature of the security and the surrounding circumstances?
(3) As the result of the findings on the above issues what is the amount, if any, due on foot of the mortgage in suit?
4. The parties may adduce further evidence relevant to the above issues. On receipt of the findings the usual ten days will “be allowed for filing objections.
