JUDGMENT : Lyle, J. This is a suit on a simple mortgage, executed on the 19th of August, 1900, by Gokul Pershad and Pirbhu Dayal, in favour of the plaintiffs. Gokul Pershad died five years ago. His survivors are Sheo Sampat and Nand Kumar Lai, defendants 1 and 2. The only defendant who contests the suit is Tirbeni Pershad, defendant No. 10, who is a transferee from Ram Bharose, defendant No. 9, a subsequent mortgagee from defendant No. 2, Nand Lal and defendant No. 3, Pirbhu Dayal. His contention is that Gokul Pershad and Pirbhu Dayal being members of a Hindu joint family had no right to dispose of the family property except for the purpose of paying off an antecedent debt or for legal necessity. The only point for decision is whether the mortgage now in suit was executed to pay off an antecedent debt or not. In support of the contention that it war, so executed reliance is placed in the first place on the recitals in the deed in suit. In my opinion, these recitals are no evidence against the appellant. They might be evidence against one of his mortgagors, Pirbbu Dayal; but they are certainly not evidence against Nand Kumar Lal, his other mortgagor. Nand Kumar Lal is not now a minor and must, therefore, have been alive in 1900. Where one member of a Hindu joint family disposes of the family property so as to defeat the claim of another member it is surely clear that the recitals in a document executed by the first member cannot be evidence against the second, the very man whom he is attempting to defraud. The only other evidence to prove the contention that this money was borrowed to satisfy an antecedent debt, consists of the deposition of Ram Narain, plaintiff. All that Ram Narain proves is that his mortgagors told him that they were borrowing money in order to pay off the debt of one Baij Nath. He made no enquiry whatever to satisfy himself that any money was really due to Baij Nath. He merely accepted the bare statement of his mortgagor. On this point I would refer to the Privy Council ruling in Hunooman Pershad Pandey v. Babooee Munraj Kunwaree, [1856] M.I.A., Vol. VI, p. 393. He made no enquiry whatever to satisfy himself that any money was really due to Baij Nath. He merely accepted the bare statement of his mortgagor. On this point I would refer to the Privy Council ruling in Hunooman Pershad Pandey v. Babooee Munraj Kunwaree, [1856] M.I.A., Vol. VI, p. 393. On page 424 I find the following passage: “Their Lordships think that the lender is bound to enquire into the necessities for the loan and satisfy himself as well as he can with preference to the parties with whom he is dealing, that the manager is acting in the particular instance for the benefit of the estate.” In the present case no such enquiry was admittedly made. It is, however, argued on behalf of the respondents, that the finding of the lower appellate court, that the money was borrowed for legal necessity is a finding of fact based on evidence and this Court cannot go behind it. The evidence of Ram Narain is not disputed. The appellant admits that the facts deposed to by him may be quite correct. But the question is what is the legal result of these facts. This is, in my opinion, a point of law which can be raised in second appeal. All that Ram Narain's evidence establishes is that his mortgagors told him that they wanted the money to pay off an antecedent debt. This does not establish the fact that the money was in fact borrowed for the purpose of discharging such debt. In my opinion, the decision of the lower courts is wrong. I, therefore, decree the appeal and dismiss the suit, as regards defendant No. 10, the present appellant, with costs.