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Radha Bai Vs. Kamod Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All38
AppellantRadha Bai
RespondentKamod Singh and ors.
Excerpt:
.....act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the..........the last two of whom were minors on that date and executed the document through their guardian, kamod singh. the defendants nos. 6 and 7 are the sons of kamod singh and have been made parties as members of a joint hindu family. the defendants, bhagwant singh, ratan singh, hira singh and mangal singh are the sons of gandharp singh, who died in 1891. under the jhansi incumbered estates act, no. xvi of 1882 kamod singh and gandharp singh had been declared to be disqualified proprietors. one of the disabilities attaching to this declaration was that those persons were incompetent to mortgage their proprietary rights in land or any part thereof [see section 8, clause (c) (i)]. under section 28, clause (6) of the act, this disability extended to any person succeeding to the proprietary.....
Judgment:

Banerji and Aikman, JJ.

1. This appeal arises out of a suit for foreclosure of a mortgage made on the 10th of July 1896 by the defendants, Kamod Singh, Bhagwant Singh, Ratan Singh, Hira Singh and Mangal Singh, the last two of whom were minors on that date and executed the document through their guardian, Kamod Singh. The defendants Nos. 6 and 7 are the sons of Kamod Singh and have been made parties as members of a joint Hindu family. The defendants, Bhagwant Singh, Ratan Singh, Hira Singh and Mangal Singh are the sons of Gandharp Singh, who died in 1891. Under the Jhansi Incumbered Estates Act, No. XVI of 1882 Kamod Singh and Gandharp Singh had been declared to be disqualified proprietors. One of the disabilities attaching to this declaration was that those persons were incompetent to mortgage their proprietary rights in land or any part thereof [see Section 8, Clause (c) (I)]. Under Section 28, Clause (6) of the Act, this disability extended to any person succeeding to the proprietary rights of those persons, and therefore to the sons of Gandharp Singh after his death. It is an admitted fact that at the date of the execution of the conditional tale deed in question, the executants of that document were labouring under this disability. The Court below has on this ground refused to enforce the deed and grant a decree for foreclosure: but it has made a decree for money against Bhagwant Singh and Ratan Singh, two of the sons of Gandharp Singh, apparently overlooking the provisions of Section 28 to which we have referred above. If a money decree could be passed against those persons, there is no reason why a similar decree should not have been passed against Kamod Singh. The plaintiff appeals from the decree of the lower Court and contends that, having regard to the provisions of Section 43 of the Transfer of Property Act, she was entitled to a decree for foreclosure, inasmuch as the mortgagors were subsequently released from disability on the 3rd of November 1896. In our opinion this plea cannot prevail. The consideration for the loan was the mortgage of their property by the disqualified proprietors. Such a mortgage being forbidden by the provisions of the Jhansi Incumbered Estates Act, the consideration was one forbidden by law. It was also of a nature which if permitted would defeat the provisions of that Act. The agreement therefore was one the consideration of which was unlawful within the meaning of Section 23 of the Contract Act, and was consequently void. The provisions of Section 43 of the Transfer of Property Act cannot be applied to an agreement of this nature. This disposes of the first plea taken in the memorandum of appeal. The second flea is that the plaintiff is in any event entitled to a money decree against the respondents Nos. 1 to 5. This plea might have prevailed had the claim for a money decree not-been barred by the law of limitation. The bond provides that the amount secured by it is to be repaid by annual instalments of Rs. 700, half of which is to be repaid on the 15th of Pus Sudi and the other half on the 15th of Jeth Sudi every year. It further provides that on the instalments remaining unpaid for two years the mortgagors shall pay the whole of the amount together with interest in a lump sum. It is admitted that no instalment was paid. The last of the two years' instalments became payable on the 4th of June 1898. Therefore under the terms of the bond the whole amount secured by it became payable on that date and time began to run under Article 75, Schedule II of the Limitation Act, from that date. There is no question of waiver in this case. As the suit was not brought until after the expiry of six years from the date on which the whole amount of the debt became due, the claim for a money decree was barred. In this view the second plea taken in the memorandum of appeal must fail and the objection raised on 'behalf of the respondents under Section 561 of the Code of Civil Procedure must prevail, the result being that the plaintiff's suit must stand dismissed. We accordingly dismiss the appeal with costs, and, allowing the objections under Section 561 with costs, dismiss the plaintiff's suit. We do not) interfere with the order of the Court below in regard to the costs of the defendants in that Court.


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