JUDGMENT Deoki Nandan, J. - This is a defendants second appeal in a suit for recovery of Rs. 14,500/- with interest, said to have been advanced as a loan by the plaintiffs Sachchida Nand Pandey and Lal Bachan Pandey both sons of Raghunandan Pandey on 9th February, 1959 to Madan Mohan Pandey, who was the father-in-law of the first plaintiff Sachhida Nand Pandey and father of the sixth defendant Shiv Kumar and the 17th defendant Smt, Rajeshwari and husband of the 7th defendant Smt. Santokhia. It was alleged that the family of the defendants was a Hindu joint family governed by Mitakshara ; that Madan Mohan Pandey was its Karta and the loan was taken by him in his capacity as such for construction of residential house, paying sundry creditors and purchase of Bullocks. The rate at which interest was agreed to be payable was 3 per cent per annum and the loan was made re-payable by the 1st June, 1962. The suit was filed on 24th May, 1955, after the death of Madan Mohan Pandey and the amount claimed was Rs. 17258/-which comprised of Rs. 14,500/- as principal Rs. 2,736/- as interest, Rs. 2/- as deficient stamp duty and Rs. 20/- as penalty in respect of the Sarkhat evidencing the loan which was described as an agreement. It may be mentioned here that the original Sarkhat bears four revenue stamps of 10 np. each but could not be said to be a promissory note because the amount was not payable on demand but was made payable by 1st June, 1962 and it was not said that the amount was payable to Sachchida Nand Pandey and Lai Bachan Pandey or to their order. I may here observe that the Munsarim of the trial Court had reported on the back of the original Sarkhat, when it was filed with the plaint, that it was an agreement and the deficiency in stamp duty amounted to Rs. 2/- and the penalty payable thereon was Rs. 20/-. The document was treated to be a bare agreement probably because it is not attested and otherwise too on its terms also it does not amount to a bond within the definition of that term as contained in clause (5) of Section 2 of the Indian Stamp Act, 1899. 2/- and the penalty payable thereon was Rs. 20/-. The document was treated to be a bare agreement probably because it is not attested and otherwise too on its terms also it does not amount to a bond within the definition of that term as contained in clause (5) of Section 2 of the Indian Stamp Act, 1899. The duty and the penalty having been made good, the document was admitted in evidence and having been proved to be genuine, though after some contest, it has been exhibited and is Ext. 25 on the record. 2. The relationship between the parties would appear from the following table : 3. Banwari and Ram Nagina were older in age than Madan Mohan. The suit was contested by Banwari, Ram Nagina and Bachchan sons of Darshan Pandey and also by Kamla, Madan Mohan's brother. They alleged that there had been a partition in the joint family in the year 1946 ; that Madan Mohan Pandey was not the Karta of the joint family and that the alleged loan was a fictitious transaction. It was also alleged that even if the loan was taken, it was not for any legal necessity. The members of the family were well to do and there was no occasion for Madan Mohan Pandey to take a loan from his own son-in-law. The following were the issues raised- 1. Whether the Sarkhat dated 9th February, 1959 has been genuinely executed by the late Madan Mohan Pandey for the consideration of Rs. 14,500/-. 2. Whether Madan Mohan Pandey was the Karta of alleged joint Hindu family of the defendants? Effect ? 3. Whether defendants 1, 2, 4, 6, 7, and 17 are living separately from each other ? If so its effect ? 4. Whether, in the alternative, the loan alleged to be incorporated in the Sarkhat in suit is backed by legal necessity or benefit to the joint family ? 4. The trial Court held against the defendants on all the points and decreed the suit for recovery of Rs. 17,258/- with pendentelite and future interest at 5 per cent per annum. The decree further provides that as against defendants nos. 1 to 5 and 8 to 16 the decree shall be executable only against the assets of the joint Hindu family in their hands. 5. 17,258/- with pendentelite and future interest at 5 per cent per annum. The decree further provides that as against defendants nos. 1 to 5 and 8 to 16 the decree shall be executable only against the assets of the joint Hindu family in their hands. 5. On appeal the four questions which were raised by the four issues framed by the trial Court, were raised by the lower appellate Court as the main points which arose for its determination. The lower appellate Court confirmed the findings and the decree of the trial Court but added that the decree shall be executable "against defendants nos. 1 to 6 and 8 to 16 only against the assets of the joint Hindu family in the hands of the said defendants." According to the lower appellate Court the trial Court "probably by over sight has omitted to pass the decree against defendant no. 6 Sheo Kumar son of Madan Mohan Pandey deceased." The lower appellate Court was not right in doing so. The decree that was passed by the trial Court was primarily passed against all the defendants but so far as defendants no. 1 to 5 and 8 to 16 were concerned, an exception was made in their favour by providing that the decree shall be executable only against the assets of the joint Hindu family in their hands. So far as defendants nos. 6, 7 and 17 were concerned, the decree could be executed against them personally as well for they were the heirs and legal representatives of Madan Mohan Pandey. 6. The lower appellate Court was in my opinion not right in correcting the decree of the trial Court on the ground of mistake. It is the decree of the lower appellate Court which suffers from mistake inasmuch as defendants Nos. 6 and 17 are omitted therefrom without any reason and defendant no. 6 is made liable only to the extent of the assets of the Hindu joint family in his hands although he would be liable as the sons of Madan Nohan Pandey personally, that is to say, to the extent of personal assets of Madan Mohan Pandey in his hands. 7. Having heard Mr. 6 is made liable only to the extent of the assets of the Hindu joint family in his hands although he would be liable as the sons of Madan Nohan Pandey personally, that is to say, to the extent of personal assets of Madan Mohan Pandey in his hands. 7. Having heard Mr. V.K.S. Chaudhry, learned counsel for the defendant appellants, the first thing which struck me in this case is that a simple suit for recovery of money was tried as if it were a suit for partition of succession or some right or interest in immovable property. I say so because apart from the question of the genuineness of the Sarkhat, which was not disputed before me, the only question which arose was whether the loan was taken by Madan Mohan Pandey from his own son-in-law for the purposes of the joint family, if any, of the defendants and if so whether Madan Mohan Pandey had the necessary authority to take loans for the purposes of the joint family so as to bind others. The first thing which needed to be seen was whether there was any joint family property or any joint family business or activity for the maintenance of which such loan was needed and if so whether Madan Mohan Pandey was authorised to take the loan as an agent of the joint family. 8. It was the case of the defendants that there had been a partition in the joint family in 1946, and Banwari Pandey and Ram Nagina Pandey were elder to Madan Mohan Pandey. The joint family owned agricultrual land in the village but most of its members were living and carrying on business outside the village. There was no suggestion that the business carried on by the members of the family or the properties owned by them outside the village were the joint family business and joint family properties Mitakshara Hindu Law of joint family does not apply to ownership and devolution of agricultural land. At any rate, even if the land had been Sir or Khudkasht or fixed rate tenancy, the Mitakshara Hindu Law ceased to govern it with the abolition of Zamindari. At any rate, even if the land had been Sir or Khudkasht or fixed rate tenancy, the Mitakshara Hindu Law ceased to govern it with the abolition of Zamindari. The members of the family could have continued to own agricultural land as co-tenure holders and so long as they did not divide the land according to their shares in the joint holding, they could even carry on and manage the business of cultivating the land as members of Mitakshara Hindu joint family. The three items for which the loan was alleged to have been taken in this case were repair of the residential house, purchase of bullocks and payment of sundry creditors. It was under the circumstances sufficient for the purposes of this case to find out ; (1) whether any part of the loan advanced was needed for purchasing bullocks in the course of carrying on the business of cultivation of agricultural land as a Joint Hindu family governed by the Mitakshara : (2) Whether there was any residential house of the Hindu Joint family of the defendants for repairing which it was necessary to take the loan (3) whether there were any sundry creditors of the Hindu joint family of the defendants and it was necessary to borrow money for paying them off, and (4) if so, whether Madan Mohan Pandey was authorised, whether as the Karta of such Hindu joint family of the defendants or as the person authorised by the Hindu Joint family to take the Joan on its behalf for the said purpose. 9. I may also observe that the question of legal necessity which is often raked in the context of an impugned alienation of joint family property did not arise in the present case. The question rather was whether, money was needed for maintaining any joint family property or joint family business. All this, of course, presupposed the existence of a joint family and joint family property,'as also joint family business of cultivation, but it was not necessary in the present case to find out whether there had been any partition, total or partial, and in respect of what properties, in view of the three specified purposes for which the loan was alleged to have been taken. The enquiry had to be a very limited one, only to see which was that residential joint family house which needed repairs or reconstruction of such magnitude and which was that joint family cultivation for which it was necessary to buy bullocks and which were those sundry creditors of the joint family to re pay whom, it became necessary for Madan Mohan Pandey to borrow the amount from his son-in-law. A very wide canvass appears to have been painted before the trial Court and before the lower appellate Court too. But the plaintiffs of whom the first plaintiff was the son-in-law, gave no further particulars of the purposes for which the money was needed and the Courts below were persuaded to ignore this aspect of the case by being told that a creditor was not bound to see to the application of the money borrowed. He had only to see that the amount was required for legal necessity. Even so it has not been explained that the family was not in a position to raise the money from its own resources, not to speak of showing that without borrowing the money, the residential house for repairing which the money was borrowed would have been destroyed or that the cultivation for which bullocks had to be purchased would have been ruined unless money had been borrowed for that purpose or that the sundry creditors to whom debts were due by the family would have caused a great deal of harm to the family unless they were repaid immediately by borrowing money. The statement of Sachchidanand, the first plaintiff who appeared as P.W. 8 would bear a reading on these points : "Yeh karj Madan Pandey ne makan banane, bail kharidne va kuch phutkar karj lautane ke liye liya tha. Yeh karj Madan Pandy ne bahaisiyat karta Khandan liya tha va usi sthiti me sarkhat likhi. Karj ki jarurat ke sambandh me maine jach kar li thi. Maine khud makan ko jakar dekha bhi tha Makan ban raha tha." Cross examined he stated that: "Smt. Rajeshwari Devi meri patni va Madan Pandey ki larki hai. Prativadigar ke pariwar ka hal mujhe apni patni se bhi gyat hua va mujhe sowyam bhi gyat hai. Meri shadi San 1932-33 me hui aur us samai alpvayask the. "1951 me Darshan Pandey mare Va tab se 1962 tak Madan Pandey hi is pariwar ke karta rahe. Prativadigar ke pariwar ka hal mujhe apni patni se bhi gyat hua va mujhe sowyam bhi gyat hai. Meri shadi San 1932-33 me hui aur us samai alpvayask the. "1951 me Darshan Pandey mare Va tab se 1962 tak Madan Pandey hi is pariwar ke karta rahe. 1962 se Banwari Pandey is pariwar ke karta hai." "Janana makan jo prativadigar ka maurusi hai usme karib 13 kamre niche ki manjil ma hai. upari ki 5, 6, kamre kharab halat ma hai. Us makan ke uttar Sateka makam namukammal hai jiske liye yeh karja liya gaya. Iske uttar Barwari Pandey neek aur baithaka bahasiyat karta khandan hal me banwaya hai. Is baithak ke phale uprokta maurusi janana makan me hi osare the jisrae chhat thi va usme mard log baithate the. Wah osara tut gaya va nave makan me sammilit ho gaya." "Vivadit karje ke atirkta is pariwar ke Bachan Pandey ne 2000/-Ram Bhawan Pundit ke nati se liya tha. Mere samne vah karj nahi liya gaya kintu kai bar uska takaja va panchayat hui. Yehrnamla Madan Pandey ke jiwan kal ka hai, va Madan Pandey se takaje hote hai. Uske liye adalati karyawahi aaj tak nahi hui." "Is Khandan par mere atirikta kisi aur byakti ne mahajan bankar dawa kiya hai ya nahi, mujhe nahi malum. Yeh galat hai ki is pariwar ne lakho rupaye dusaror ko karj diye hai." "Sarkhat 9, 10 baje Sabere likha gaya. Phutkar karja Mukhbilas Kalwar ka dal ki kimat ka baki tha, 100/- Aur bhi namak tel ka baki the unke pas bail nahi the, kuchh mar gaye the kuchh bik gaye the. Madan Pyndey ne us samay bataya tha 10,000/- ke lagbhag makan me lagega va 4000/- ke lagbhag bail kharidne me. 400/- ya 500/- phutkar karj dene the. Yeh bat pahli bar mujhe Madan ke kahne se hi malum hui. Maine swayam iski janch ki." 10. It would be obvious from the above statement that the loan of Rs. 14,500/- could not have been borrowed for paying off sundry creditors. The statement about the need for buying bullocks is to vague to be true and the statement about the need of money for construction of house does not show that the need was so urgent or pressing as to have necessitated borrowing money for the same. 14,500/- could not have been borrowed for paying off sundry creditors. The statement about the need for buying bullocks is to vague to be true and the statement about the need of money for construction of house does not show that the need was so urgent or pressing as to have necessitated borrowing money for the same. The alleged needs do not pass the test of a legally necessary purpose or term legal necessity or benefit of the estate, to justify alienation of joint family property. But as observed above this was not a case of any alienation of joint family property. It would have been sufficient for the purposes of the present case if it had been shown that the money which is said to have been borrowed by Madan Mohan Pandey was actually spent by him on the construction or the repairs of a house belonging to the joint family or on the members of the family, but there is no such material of evidence in the case. In the absence of such material and evidence every other enquiry becomes irrelevant, for even if there had been a joint family and even if Madan Mohan Pandey had been its Karta. The defendants could not have been made liable to re-pay the loan unless it were shown that Madan Mohan Pandey had in fact used the borrowed money for joint family purposes. 11. There is one more reason why it is unnecessary to enter into the controversy that was raised in the two Courts below in this case. The reason is that it was stated before me by Mr. Faujdar Rai, who appeared for the plaintiff respondents that the full decretal amount had been satisfied and there was no question now of executing the decree against any assets of the joint family in the hands of defendant nos. 1 to 5 or 8 to 16. According to Mr. Faujdar Rai. the whole amount of decree was paid by Mangala Pandey, plaintiff-respondent no. 5. Mr. V.K.S. Chaudhary contested that statement and claimed that his client, namely, the defendant-appellant had also contributed equally towards the payment. Be that as it may be decreed having been satisfied and on the face of the tender of payment which was produced before me, it appears to have been satisfied by Mangala Pandey, plaintiff-respondent no. 5. Mr. V.K.S. Chaudhary contested that statement and claimed that his client, namely, the defendant-appellant had also contributed equally towards the payment. Be that as it may be decreed having been satisfied and on the face of the tender of payment which was produced before me, it appears to have been satisfied by Mangala Pandey, plaintiff-respondent no. 5, there can be no question of any execution of the decree against the assets of the joint family in the hands of any of the defendants, nor can there be any question of restitution so long as the decree is maintained against defendants nos. 5, 6, 7 and 17 for doing which there can be no difficulty as they did not contest the plaintiff's claim. But Mr. V.K.S. Chaudhary contended that the findings arrived in this were likely to cause a great deal of confusion in the management of the affairs of the family in future. As noticed above, the approach of the two Courts below to this case has not been correct and much of the enquiry that has been made by them was unnecessary. 12. Under the circumstances it appears expedient in the interest of justice to set aside the findings of the trial Court on issues nos. 2, 3 and 4 and that of the lower appellate Court on points nos. 2, 3, and 4 but maintaining the finding of the trial Court on issue no. land of the lower appellate Court on point no. 1 to maintain the decree for recovery of Rs. 17,258/- with pendentelite and future interest at 5 per cent per annum and costs to the extent to which they have already been paid, against defendants nos. 5, 6, 7 and 17 only and to dismiss the suit against the other defendants. The appeal is accordingly allowed in part and the decree under appeal is modified as aforesaid. The parties shall bear their own costs in this Court.