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Ganesh Lal Vs. Khetramohan Mahaptra - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Judge
Reported in(1926)28BOMLR931
AppellantGanesh Lal
RespondentKhetramohan Mahaptra
Excerpt:
.....;it is enough to say that they failed in those proceedings and, on august 25 and 26, 1897, the mortgage decree was executed, and the mortgaged properties were put up for sale and purchased by behari lal himself for rs. 33,000 odd, at the time of the sale the mortgage debt amounted to something like rs. 5. 11. the learned judges of the high court have held that the defendants had established legal necessity in respect of the mortgage of july 23, 1884, and that consequently the sale under the mortgage decree was valid, but that they had failed to satisfy that the sale of july 23, 1884, q. the covenant on her failure to repay is as follows :if i fail to pay the whole of the principal and interest within the aforesaid term the creditor is competent to sue me in the court and realise the..........; it is enough to say that they failed in those proceedings and, on august 25 and 26, 1897, the mortgage decree was executed, and the mortgaged properties were put up for sale and purchased by behari lal himself for rs. 33,000 odd, at the time of the sale the mortgage debt amounted to something like rs. 80,000, in order to pay the balance of the mortgage debt, suryamani entered into a razinama or deed of compromise by which she agreed to transfer to behari lal her remaining properties in her hands belonging to the estate of her husband. in pursuanoe of this razinama she appears to have executed in 1899 a number of conveyances which are marked in the proceedings as o., q. 1, q, 2, q. 3 and q, 4, q 5, executed about the same time, stands in a different category.10. as already stated,.....
Judgment:

Ameer Ali, J.

1. Their lordships are relieved of the neceesity of narrating at length the facts of this complicated litigation, as the judgment under appeal summarises very clearly the history of the transactions in debate.

2. This is an ex parte appeal from the judgment and decree of the High Court of Patna which partly affirmed and partly reversed the Order of the Court of first instance.

3. A Hindu lady of the name of Suryamani, who died in 1904 or 1905, conveyed by mortgage and sale to one Behari Lal Pandit, the father of defendant No. 1, almost the whole of the property which had devolved on her as the widow of one Banamali Mahapatra, a native of Orissa, subject to the Mita-kshara law. Banamali appears to have died in the year 1863, leaving him surviving his widow, Suryamani, and two daughters, one of whom died not long after, childless ; the other Satyabhama, survived her mother, and was the original plaintiff in the present suit, which was instituted in the Court of the Subordinate Judge of Cuttack on September 17, 1916. iSatyabhama challenged in the action the validity of the transactions entered into between Suryamani and Behari Lal Pandit in respect of the properties conveyed to him by the widow. On Satyabhama's death her sons, the present respondents, were substituted in her place.

4. It is not disputed that Suryamani, on coming into possession of the properties left by her husband, had to meet heavy expenses connected with the litigation in which Banamali was involved. The High Court, in its judgment, refers to the circumstances which compelled her to alienate many of the properties which formed the subject of controversy in the present case.

5. In respect of the others the learned Judges of the High Court, differing from the trial Judge, have held, firstly, that the documents which purported to create the alienations were not properly explained to the lady, that she was an ignorant purdanashin woman and had no independent advice; and, secondly, that some of the alienations challenged by the plaintiffs were either for debts that were barred or not binding on the reversioners. They have also held that the principal mortgage purporting to have been executed by Suryamani was not executed in compliance with the provisions of the law 80 as to make it binding on Suryamani.

6. It is with regard to these findings that the present appeal before the Board is concerned.

7. On the defendants' side it is alleged that, on July 28, 1884, Suryamani entered into two transactions with Behari Lai Pandit : one was a mortgage for Rs. 30,500, the other a sale to him of certain properties for Rs. 8,000. The sale deed is marked in the proceedings as Exhibit Q. 6, and the deed of mortgage as Exhibit M,

8. In 1896 Behari Lal Pandit instituted a suit against Suryamani and her daughter Satyabhaina for enforcement of the mortgage. On August 28, 1896, Behari Lal pandit obtained an ex parte decree,

9. Their lordships do not think it necessary to refer to the steps taken by the ladies to set aside the ex parte decree ; it is enough to say that they failed in those proceedings and, on August 25 and 26, 1897, the mortgage decree was executed, and the mortgaged properties were put up for sale and purchased by Behari Lal himself for Rs. 33,000 odd, At the time of the sale the mortgage debt amounted to something like Rs. 80,000, In order to pay the balance of the mortgage debt, Suryamani entered into a razinama or deed of compromise by which she agreed to transfer to Behari Lal her remaining properties in her hands belonging to the estate of her husband. In pursuanoe of this razinama she appears to have executed in 1899 a number of conveyances which are marked in the proceedings as O., Q. 1, Q, 2, Q. 3 and Q, 4, Q 5, executed about the same time, stands in a different category.

10. As already stated, Satyabhama, and after her death, the plaintiffs, as reversioners to Banamali's estate, challenged the sale deed of July 23, 1884, by which Beharilal purchased some of the property on July 23, 1884. They also challenged the mortgage deed of the same date and the transactions of 1899, evidenced by Exhibit O., Q. 1, Q. 2, Q. 3, Q. 4, and Q. 5.

11. The learned Judges of the High Court have held that the defendants had established legal necessity in respect of the mortgage of July 23, 1884, and that consequently the sale under the mortgage decree was valid, but that they had failed to satisfy that the sale of July 23, 1884, Q. 6, was for justifiable necessity or that she had in fact executed the sale-deed, or that it was read over and explained to Suryamani, and that apart from that she had no independent advice. They also held that the kabalas executed by the widow in 1899 were not binding on the reversioners.

12. In their lordships' opinion the evidence fully justifies the conclusions of the learned Judges. The deed of sale (Q, 6) was executed for Suryamani by a person of the name of Lakhan Mahanty, under a power of attorney which bears date July 29,1884, six days after the sale in question. The substance of the powers entrusted to Lakhan are set out in the Register of Powers of Attorney for 1884 as follows :-

S. (1)- Extract from the Register as Powers of Attorey for 1884.(From a Certified Copy)No. Date Name and Name and Abatraet of Power.of of Exe- addition of additionPower cution principal of Attorney----------------------------------------------------------------------22 29-7-84 Surjamoni Lakhan Mahanty

13. It will be noticed that this power was registered on July 29, whilst the sale was effected on the 23rd. Neither of the two witnesses to the execution of the power was examined, Under the Registration Act of 1877 the same provisions are made as under the Act now in force for safeguarding the interests of absent executants of documents when presented for registration by a person claiming to act by and under their alleged authority. Section 32 provides that ' every document to be registered under the Act, whether such a registration be compulsory or optional, shall be presented..,,by some person executing or claiming under the same...or by the representative or assign of such person, or by the agent of such person, representative or assign, duly authorised by power of attorney executed and authenticated in manner hereinafter mentioned.'

14. Their lordships concur with the High Court in holding that the sale-deed of July 23, 1884, which purported to be executed by Lakhan Mfthanty for Suryamani was not validly executed, and that the sale thereunder could not bind either Suryamani or the reversioners.

15. As regards the kabalas by which Suryamani purported to transfer her remaining properties to Behari Lal Pandit in discharge of the balance remaining over after the sale under the mortgage decree, their lordships also agree with the High Court that the claim on the personal covenant for the balance of the mortgagd-debt was barred by the statute of limitation (XV of 1877), long before the execution of the razinama and the conveyances thereunder. It will be noticed that the mortgage of July 23, 1884, by which Suryamani borrowed Es, 33,500 from Behari Lal Pandit on interest at the rate of one per cent, per mensem was repayable by her within six months from the date of the execution of the document. The covenant on her failure to repay is as follows :-

If I fail to pay the whole of the principal and interest within the aforesaid term the creditor is competent to sue me in the Court and realise the principal with interest thereon at the rate of Re. 1 per cent. per mensem from this day till the date of realisation and coats of the suit from me and from the mortgaged properties, and, if insufficient, from my other movable and immovable properties.

16. The decree on this mortgage, Ex. T. (1), made on August 28, 1896, was in the following terms :-

This suit is for raecvery of the principal of Rs. 33,500-0-0 and the balance of interest of Rs. 47, 228-8-0 in all Rs. 80,728-5-0 and the interest which will secure from the date of institution of the snit till that of realisation and the costs of the suit from the defendant and it: not fully realised from her the from the mortgage properties, except those exempted from mortgage liability at the request of the defendant) No. 1 by putting them np for sale and if insufficient the balance be realised from the surety defendant No. 2 and her properties.

17. The suit on the mortgage bond was not instituted until ten years after the debt became repayable. The decree for the balance, if the sale of the mortgaged properties proved insufficient, was against Satyabhama, who had stood as surety on the mortgage. Satyabhama was afterwards absolved from all liability as surety in the High Court. In the case of Ramdin v. Kalka Pershad it was held by the Judicial Committee that when a mortgagee sues on a personal covenant to make the mortgagor responsible for any deficiency in the realisation of the mortgaga debt out of the mortgaged properties, the claim would be barred in three years. That casa arose under the Limitation Act of 1871 (IX of 1871), and the came argument which has been advanced in the present case was submitted to the Board. Their lordships in that case held as follows (p, 14) :-

The second schedule places simple money demands generally under the three years' limitation, and under No. 65 the same limitation is applied to a single bond, and under the same limitation are placed bills of exchange, arrears of tent, and suits by mortgagors to recover surplus from mortgagee. The six years' limit embraces auita on foreign judgments and some compound registered securities, The twelve years' period is made applicable principally to suits in respect of immovable property, though it also applies to judgment and recognizances in India. Bet the counsel for the Appellant relied upon the language of the 132nd article of the second schedule, ' For money charged upon immovable property, twelve years.' His contention was that that period of twelve years applied to every remedy which the instrument carried with it, and gave twelve years for the personal remedy against the mortgagor as well as against the mortgaged property.

18. The Judicial Committee expressly overruled the contention that a claim for the balance of the mortgage debt based on the personal covenant came under Article 132 of Schedule II applicable to claims for money 'charged on immovable property.'

19. That case was followed by the High Oourt of Calcutta in Miller v. Runga Nath Mouliek I.L.R. (1885) Cal. 389 which arose under Act XV of 1877. There the learned Judges held as follows (p. 395) :-

We are of opinion that the decision of the lower Court upon the question of limitation is correct. The contention of the learned Counsel for the appellant that) Art, 132 of Sch. II of the Limitabion Act of 1877 refers to a claim to recover money charged upon immovable property quite irrespective of the remedy asked for, has been set at rest by the decision of the Judicial Committee of the Privy Council in the case of Ramdin v. Kalka Pershad (1884) L.K. 12 I.A. 12That decision was pasaed with reference to the corresponding article of the Limitation Act of 1871. That article provides a period of twelve years for suits for money charged upon immovable property. The Legislature in the present Limitation Act has used a different) phraseology, vis. ' to enforce payment of money oharged upon immovable property ' The language of the present Act, viz., ' to enforce, & C. ' is more in favour of the contention that the article in question refers only to suits ' to enforce payment of money charged upon immovable property ' by the sale of the said properly. This construction was put by the Judicial Committee of the Privy Council upon Article 132 of the Limitation Act of 1871, the language of which did not suggest it 30 clearly as that of the present Limitation Act, the claim be make the defendants personally liable has therefore been rightly held to be barred by limitation, the present suit having baen commenced more than six years after the accrual of the cause of action.

20. Article 65 of the second Schedule (Act IX of 1871) is reproduced in Act XV of 1877 as Article 66.

21. Their lordships are of opinion that the view taken by the High Court on the question of limitation is well founded. The eause of action on the personal covenant accrued to Beparydah Pandit when Soryamani failed to pay the mortgage debt, viz., within six months from the date of the mortgage. And the claim had become barred under Article 66 long before the execution of the razinama and the conveyances thereunder. Consequently, it is not neeessary to consider whether a decree under Section 90 of the Transfer of Property Act of 1882 is requisite in case of deficiency in the realisation from the mortgaged property. Admittedly no decree was asked for or made. Section 90 is now Order XXXIV, Rule 6, of the Civil Procedure Code of 1908.

22. As regards the consideration for Exhibit Q. 5, which was a conveyance, executed by Suryamani in favour of Behari Lal Pandit on November 25, 1899, it appears that Suryamani became liable for the arrears of Government revenue under Act XI of 1859 in respect of a mouzah which she held in her husband's estate with other co-sharers. To save the property from sale under the Act the co-sharers paid the revenue due from her and sued her for contribution. They obtained a decree and attached her dwelling house for the satisfaction of the debt. This is recited in Exhibit Q. 5, the kabala, by which she conveyed the property now claimed by the reversioners.

23. The learned Judges of the High Court relying on the case of Upendra Lal Mukherji v. Girindra Nath Mukherji 2 C.W.N. 425 have held that where a Hindu widow fails to pay her share of the Government revenue and after her death her co-sharer brings a suit for contribution, the reversionary heira of her husband's estate were not bound to satisfy the debt. But in the present case it has been found as a fact by the Subordinate Judge that the co-sharers had, in execution of their decrees for contribution, attached Suryatnani's dwelling-house, and that in consequence thereof she was compelled to raise money by executing the kabala, Exhibit Q. 5.

24. Their lordships are of opinion that sufficient evidence has thus been given by the defendants to show that there was a compelling necessity on the part of the widow for entering into this transaction, They accordingly vary the decree of the High Court by deleting the transaction covered by the deed of sale, Exhibit Q. 5. In other respects the decree and judgment appealed against will be confirmed and the appeal will be dismissed. As there is no appearance on behalf of the respondents it will be without coats.

25. And their lordships will humbly recommend His Majesty accordingly.


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