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Thakur Das and ors. Vs. Achhan Kuar and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All125
AppellantThakur Das and ors.
RespondentAchhan Kuar and anr.
Excerpt:
hindu law - hindu widow--power of widow of sonless hindu to mortgage ancestral property--pardah-nashin woman, conditions necessary to the execution of a valid deed by--expectancy--mortgage purporting to be of property in which one of the professed executants had an interest in expectancy only. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board......john edge, kt., c.j. and banerji, j.1. the plaintiffs in 'the suit, in which' this appeal has been brought by the defendants, brought their suit in the court of the subordinate judge of bareilly to recover rs. 86,338-130, with costs of suit, interest during the pendency of the suit and future interest, by sale of certain ancestral property of the defendants, and they further prayed for, decree against the defendants personally. the suit was brought upon two mortgage bonds, dated respectively the 2nd of december 1877 and the 1st of april 1881. the bond of the 2nd of december 1877 was alleged to have been made by raja lalji on his own behalf, and by rani hulas kuar, rani achhan kuar and, kuar inayat singh through raja lalji as their general attorney. the consideration was stated in the bond.....
Judgment:

John Edge, Kt., C.J. and Banerji, J.

1. The plaintiffs in 'the suit, in which' this appeal has been brought by the defendants, brought their suit in the Court of the Subordinate Judge of Bareilly to recover Rs. 86,338-130, with costs of suit, interest during the pendency of the suit and future interest, by sale of certain ancestral property of the defendants, and they further prayed for, decree against the defendants personally. The suit was brought upon two mortgage bonds, dated respectively the 2nd of December 1877 and the 1st of April 1881. The bond of the 2nd of December 1877 was alleged to have been made by Raja Lalji on his own behalf, and by Rani Hulas Kuar, Rani Achhan Kuar and, Kuar Inayat Singh through Raja Lalji as their general attorney. The consideration was stated in the bond to be Rs. 10,000, the details of which, as given in the bond, were:

Rs. a. p.

On account of hundis ... ... ... 7,000 0 0

On account of interest upon the hundis ... 188 3 0

On account of the interest of the bond, dated

25th May 1877, in respect of the 2nd quarterly

payment ... ... ... 500 0 0

---------------

7,688 3 0

Cash ... 2,311 13 0

----------------

Total : 10,000 0 0

2. The bond of the 1st of April 1881 was alleged to have been made by Raja Lalji, Rani Achhan Kuar and Kuar Inayat Singh. The consideration was stated in the bond to be Rs. 20,000, the summary details of which, as given in the bond, were:

Rs. a. p. Rs. a. p.

Interest on two bonds ... ... 8,402 10 9

Deduct previous payment ... ... 302 10 9 ... 8,100 0 0

------------------

In respect of a Rukka, dated 1st December 1880.

Principal amount ... ... ... ... 10,475 0 0

In respect of the interest on the amount of the Rukka ... 1,300 14 0

In cash ... ... ... ... 124 2 0

-----------------

20,000 0 0

3. The details of the above sura of Rs. 8,100 as given in the bond were:

Rs. a. p.

Compound interest in respect of the bond for Rs. 20,000,

dated 25th May 1877, up to end of March 1881 ... 5,251 10 9

Compound interest in respect of the bond for

Rs. 10,000, dated 2nd December 1877, up

to end of March 1881 ... ... 3,151 0 0

Deduct previous payment ... ... 302 10 9 ...2,848 5 3

4. The details of the above sum of Rs. 10,475, as given in the bond, were:

Rs. a. p.

On 22nd June 1879, for revenue ... ... 2,000 0 0

On 5th November 1879, to pay interest to Intizam

Begam ... ... ... ... 1,575 0 0

On 17th May 1880, to defray expenses of daughter's marriage 2,000 0 0

On 2nd August '1880, to pay interest to Moti Ram Sah ... 4,000 0 0

On 9th October 1880, to pay interest to Intizam Begam ... 900 0 6

5. We have set out the above details of the sum of Rs. 20,000, as it will be necessary to consider them carefully later on.

6. The sum of Rs. 86,338-13-0 claimed is composed of the above-mentioned sum of Rs. 10,000 and Rs. 20,000 and compound interest on those sums amounting to Rs. 56,338-13-0.

7. The defendants pleaded, inter alia, that the bond of the 2nd of December 1877, was executed by Raja Lalji alone during the minority of the defendant Kuar Inayat Singh and without the knowledge of the defendants; that the property alleged to have been hypothecated by the bond was property which had belonged to Raja Khairati Lil and was at the date of the bond in the possession of his widow, Rani Hulas Kuar; that the defendants had at that time acquired no right to the estate other than a right of expectancy, and that, if the bond was the bond of Rani Hulas Kuar, there was no such necessity for the loan as enabled Rani Hulas Kuar to charge the estate beyond her own life interest in it.

8. The defendants admitted that they had executed the bond of the 1st of April 1881, but they pleaded, inter alia, that they had executed that bond under the influence and at the earnest request of Raja Lalji; that the transaction was not explained to them, and that they did not understand the document or that the debt admitted or incurred under the bond was such as would create liability upon the estate left by Raja Khairati Lal, which was at the date of the bond in the possession by right of inheritance of his daughter, Rani Achhan Kuar, who then had living two sons, the defendants, Kuar Inayat Singh and Kuar Shamsher Bahadur. The written statement of the defendants is somewhat obscurely and confusedly worded, but we have above given what we have understood to be the meaning of those paragraphs of the written statement which, in the view we entertain of this case, are material to our judgment.

9. The Subordinate Judge, after what appears to us to have been a perfunctory consideration of this by no means easy case, gave the plaintiffs a decree for sale, but dismissed their claim for a decree personally against the defendants., From that decree for sale the defendants have brought this appeal.

10. The property included in the bonds in suit is ancestral property which belonged to the joint Hindu family, the head of which in his life-time was Raja Khairati Lal of Bareilly. Raja Khairati Lal married Rani Hulas Kuar, and had by her one child, a daughter, the defendant Rani Achhan Kuar. The Rani Achhan Kuar married Raja Lalji and had issue three sons, the eldest of whom died many years ago, and the others of whom were the defendants Kuar Inayat Singh and Kuar Shamsher Bahadur. Raja Khairati Lal died in 1866. Rani Hulas Kuar died on the 22nd of June 1878. Raja Lalji died six or seven years ago, and Kuar Shamsher Bahadur died subsequently to the 1st of April 1881, and before the commencement of this suit. On the 2nd of December 1877, Kuar Inayat Singh and Kuar Shamsher Bahadur were minors. On the 1st of April 1881, Kuar Inayat Singh, being then between nineteen and twenty years old, was of age, but Kuar Shamsher Bahadur was then still a minor. Rani Achhan Kuar and Kuar Inayat Singh are the defendants to this suit. It must be kept in mind in considering this case that Raja Lalji never had any title to or interest in the property included in the bonds. In 1877, Rani Hulas Kuar's title was solely that of the widow of a sonless Hindu.

11. Assuming for the moment that the bond of the 2nd of December 1877, was the bond of Rani Hulas Kuar and was not the bond of the defendants and that they have not by their own acts precluded themselves from denying that the family property is liable to be sold in enforcement of that bond, the plaintiffs, in order to prove its validity as a mortgage affecting the interests of Rani Achhan Kuar and Kuar Inayat Singh in the estate which was of Khairati Lal, must prove that there was legal necessity for raising the money, the consideration for that bond, by a charge on Khairati Lal's estate, or that the mortgagees of that bond in advancing their money gave credit on reasonable grounds to representations that the money was wanted for such necessity. Lala Amarnath Sah v. Rani Achhan Kuar L.R. 19 I.A. 196, at p. 201.

12. If the bond of the 2nd of December 1877, was solely the bond of Raja Lalji, and not the bond of the defendants or of Rani Hulas Kuar, it did not operate as a valid mortgage of any of the property included in it, as Raja Lalji, in his capacity of son-in-law of Rani Hulas Kuar, husband of Rani Achhan Kuar and father of Kuar Inayat Singh, had no power under the Hindu law to charge the property which was of Khairati Lal with the payment of any debt, whether the debt was incurred by Raja Lalji for his own private purposes or was a debt necessarily incurred for the purposes of the family descended from Khairati Lal. The legal obligation of a Hindu son to pay his father's debts not tainted with immorality, extends only to the family property in which he and his father were jointly interested as members of a Hindu family, and to such self-acquired property of the father as has come to the son. It does not appear whether or not Raja Lalji had any property of his own. If he had, it is not shown that any property of Raja Lalji came to the hands of the defendants, or of either of them, and no property which was of Raja Lalji is the subject of this suit.

13. During the life-time of Rani Hulas Kuar her daughter Rani Achhan Kuar had no interest in the estate of Khairati Lal other than one in expectancy. After the death of Rani Hulas Kuar in 1878, and in 1981, Rani Achhan Kuar's title and interest was merely that of the sole daughter of a deceased sonless Hindu. Under the law of the Mitakshara, which applies in this case, the estate of a daughter in property inherited from her father 'exactly corresponds to that of a Hindu widow both in respect to the restricted power of alienation and to its succession after her death to her father's heirs and not her own.' (Mayne on Hindu Law and Usage, paragraph 526, 3rd ed.) In 1877, and thence hitherto Kuar Inayat Singh's sole title and interest was and is that of a reversioner. So far as the interest of Kuar Inayat Singh in the family property is concerned, as he was, in 1877 and 1881, not in possession, but merely one of the two reversioners who would, on the death of Rani Achhan Kuar, be entitled, if they survived her, to possession, he had in neither of those years any power under the Hindu law to create a mortgage or charge on the family property. Kuar Inayat Singh's interest in the family property in suit can only be affected by the mortgage of the 2nd of April, 1881, on proof that the debt was in fact one, or was, on reasonable inquiry by and statements made to the lenders of the money believed by them to be one, in respect of which his mother Rani Achhan Kuar, as a Hindu daughter in possession, could mortgage or charge the family property beyond her own then vested interest in it, or on proof that he, as one of the reversioners, by joining with his mother in executing the document of mortgage, led the lenders of the money to believe that such a necessity existed for the loan as enabled the Hindu daughter to create a valid mortgage on the family property beyond the extent of her own life interest. In the Collector of Masulipatam v. Cavaly Vencata Narrainapah 8 Moo. I.A. 529, their Lordships of the Privy Council, referring to an alienation made by a Hindu widow of property of her deceased husband, said (at p. 551): 'On the other hand it may be taken as established that an alienation by her which would not otherwise be legitimate may become so if made with the consent of her and husband's kindred.... The exception in favour of alienation with consent may be due to a presumption of law that where that consent is given the purpose for which alienation is made must be proper.' In Raj Lukhee Dabea v. Gokool Chunder Chowdhry 13 Moo. I.A. 209, at p. 238. their Lordships referring to an alienation by a Hindu widow said: Their Lordships do not mean to impugn those authorities which lay down that a transaction of this kind may become vali, by the consent of the husband's kindred, but the kindred in such case must generaly be under, stood to be all those who are interested in disputing the transaction At an events there should be such a concurrence of the members of the family as an events proesumption that the transaction was a fair one and one Justifid by Hindu Law. That it can be, as Mr. Field seeded to put it, a Gumption of law in the sense of 'proesumptio juris et de jure, their Ships do not think. It is no doubt an element to be taken into consideration and deserving of considerable weight in the estimation of all the evidence of the transaction.' In the present instance Kuar Inayat Singh's brother, Kuar Shamsher Bahadur, was alive on the 2nd of April 1881 and had then as much interest in the property as had Kuar Inayat Singh. Knar Shamsher Bahadur was not in any sense a party to the bond of the 1st of April 1881, It is not suggested that Kuar Shamsher Bahadur consented to the giving of the mortgaged indeed he could not have consented, for he was then a minor.

14. If the mortgage of the first of April 1881, was not valid as against Rani Achhan Kuar the fact of Kuar Inayat Singh's having joined in the mortgage and not make it valid as against his interest in expectancy, for, according to the law of the Mitakshara as understood and acted upon in these provinces, he could not alone, even if he had enjoyed full coparcenary right in possession in the property, have validly sold or mortgaged even Ws own share without the consent of all the other coparceners, except for the necessary purposes of the joint family; and the Hindu law which prevails in these Provinces recognizes no power in a reversioner to sall or mortgage his interest in expectancy, even although he may be the heir apparent Section 6, Clause (a) of the Transfer of Property Act, 1882 (Act No. IV of 1882), although it does not, except in matters of procedure, apply ot transfers which took place before the passing of that Act, embodies a principle which had long been recognized as the law, at least in this part of India, applicable to Hindus.

15. Rani Achhan Kuar is a pardah-nashin lady who keeps strictly to the custom of the pardah. It is absolutely necessary, before holding that a pardahnashin lady or her property is liable on a contract alleged to have been made by her or in consepeuence of an alleged execution by her of a general power-of-attorney, to be reasonably satisfied that the liability she was incurring and the nature of the transaction were explained to her; and more particularly is this the case if it is sought, by reason of her having executed a document, to fix her and property with a liability to pay a debt, which, if with adequate power, could not have been enforced against her or her property. It is also necessary when money-lenders in this country seek to enfore against the property of a Hindu family a contract of mortgage made by a reversioner, who, although of age at the time, was then still of tender yerars and without experience of business, for the court, when the question is raised, to be satisfied that the reversioner understood the nature of the transaction and the effect of the contract which he was entering into, or that the reversioner, or the family property, in which the reversioner had an estate in expectancy only, was liable for the debt in respect of which the mortgage is sought to be enforced and that no unfair advantage was taken of the reversioner's youth and inexperience.

16. We shall now consider what were the transactions relating to each of the two bonds in suit here.

17. That the bond of the 2nd of December 1877, was executed by Raja Lalji is admitted. On behalf of the plaintiffs it has been contended that Raja Lalji executed that bond as the general attorney of Rani Hulas Kuar, Rani Achhan Kuar and Kuar Inayat Singh. It was not executed by Rani Hulas Kuar, Rani Achhan Kuar or Kuar Inayat Singh personally. The power-of-attorney relied upon by the plaintiffs is a mukhtarnamah of the 6th of March, 1877, (document No. 83). That mukhtarnamah was the subject of criticism by their Lordships of the Privy Council in Lala Amarnath Sah v. Rani Achhan Kuar L.R. 19 I.A. 196. The endorsement of the Sub-Registrar shows that before registering the mukhtarnamah he read it over to the two ladies and Kuar Inayat Singh and that they verified it. The Sub-Registrar does not appear to have taken the trouble to enquire whether Kuar Inayat Singh was then a minor or of full age. Kuar Inayat Singh was at that time between 16 and 17 years of age. It may be doubted whether any pardahnashin lady who was not a woman of affairs and possessed of a knowledge of business would understand the nature and scope of the power she was conferring by a mukhtarnamah such as that in this case. It not only purported to make valid all prior acts of Raja Lalji, but it purported to authorise Raja Lalji to borrow money, to execute documents, to hypothecate, mortgage, sell or otherwise transfer movable and immovable property, and to give a lease of any village, in whole or in part, at any rent he might think proper, and to do all such acts apparently without consulting the ladies or Kuar Inayat Singh. It was a document which, if the ladies thoroughly understood its effect, would have enabled Raja Lalji to divest them of every scrap of property which they possessed. There is no evidence before us to show that the nature and effect of that mukhtarnamah were explained to either of the ladies. Rani Achhan Kuar was examined in this case, and we believe her evidence, every word of which appears to us to be of importance. She said: 'The villages, buildings and other landed property at Bareilly, Shahjahanpur and Lucknow are mine. I got them from Rani Hulas Kaur, my mother, who inherited the same from her husband Raja Khairati Lal. On his (Khairati Lal's) death he left a considerable property both movable and immovable as well as out standings. Raja Lalji was my husband. I remember having executed a mukhtarnamah in his name with a view to manage the villages. I did not know that my estate was incumbered. I came to know of the existence of debt when the Paharwalas filed a suit.' And later on: 'Raja Lalji never consulted me in matters relating to the management of the estate. He was my elder, malik, and out of respect for him I could not interfere. Raja Khairati Lal was not indebted at the time of his death; he had ample money; why should he borrow?' The suit by the Paharwalas to which she referred was the suit brought by Lala Amarnath Sah and others upon a bond in favor of Moti Ram Sah of the 23rd of March 1873, (L.R., 191. A., 196). Kuar Inayat Singh (document No. 254) was examined in this case. It appears to us that his evidence, as well as that of Rani Achhan Kuar, was given with moderation and bears the impress of truth. As to Raja Lalji, he said: 'I have not received a single farthing on account of any of these two bonds (the bonds of the 2nd December 1877, and 1st of April 1881). Their amounts may have been taken by Raja Lalji.' And later on: 'There was no enmity between Raja Lalji and me. He should be considered my and may mother's well-wisher. A son considers his father his well-wisher, though the other may not be so at heart. It would appoar from the fact of institution of the suit and perusal of the bonds that he acted maliciously. Nothing else has been disclosed. It appeared from the bond sued on and the other bonds sued on previously that his proceedings were maid fide.' And still later on: 'On the death of Raja Khairati Lal the property was managed by Raja Lalji as one having sole authority. He did not use to consult Rani Achhan Kuar or me in regard to the management of the property. On his death, i.e., at the time of the death of Raja Khairati Lal, there were no debts due against the riyasat (estate), but on the contrary there were debts due to us from several persons.' As to the mukhtarnamah Kuar Inayat Singh said: 'Raja Lalji was a general attorney on my behalf. I do not fully understand the conditions applicable to general and special attorneys, but he used to do all works, and if this is the meaning of a general attorney the Court may consider him to be so,' and 'I admit the execution of the power-of-attorney executed in favor of Raja Lalji in 1877, but at that time I had not sufficient maturity of understanding to judge of what I was writing.'

18. The result of the evidence to which we have referred, and which we believe, is that Raja Khairati Lal, who died in 1866, left on his death very considerable unincumbered landed and other property, and left no debts, and that Rani Achhan Kuar understood when she executed the mukhtarnamah of the 5tb of March, 1877, that she was executing a document which empowered her husband Raja Lalji to act as the attorney and agent of the family in the management of the villages, as,for instance, in granting leases, fixing and collecting rents and giving receipts, and the payment of the Government revenue and other such matters. At the time when the mukhtarnamah of the 5th of March 1877 was given it appears from the evidence above referred to that Rani Achhan Kuar or Kuar Inayat Singh had not the slightest reason to suspect that it was or would be necessary to borrow money or to mortgage or sell any part of the family property, and it may be safely assumed that the possibility of, or the necessity to provide for, any such contingency was not present to their minds, and that they did not know that the mukhtarnamah was making provision for the happening of contingencies which there was then, so far as they knew, no chance of occurring. There is no more reason to assume that the two pardahnashin ladies and Kuar Inayat Singh understood that the mukhtarnamah purported to empower Raja Lalji to mortgage and sell their family property in the future than there is for assuming that they understood that the mukhtarnamah purported to ratify and make valid mortgages and sales by Raja Lalji of their family property in the then past. On the other hand, as Rani Hulas Kuar and Rani Achhan Kuar were strictly pardahnashin ladies, and as the two male members of the family of Khairati Lalw?., Kuar Inayat Singh and Kuar Shamsher Bahadur were then minors, and as Khairati Lal's estate comprised much village property, it was convenient, if not absolutely necessary, that some one should be empowered to act as the agent and general attorney of the family in the management of the village property, and the person who would naturally be selected to manage the village property was under the circumstances Raja Lalji, who stood to the persons then interested in Raja Khairati Lal's estate in the position of son-in-law, husband and father. It is not proved, nor is there any suggestion in the evidence, that the scope and effect of that mukhtarnamah were explained to any one of the three persons who executed it. Neither Rani Hulas Kuar, nor Rani Achhan Kuar, nor Kuar Inayat Singh, who was then 16 or 17 years old, is shown be have any knowledge of business. It was Raja Lalji, and not they, who managed the estate of Khairati Lal after Khairati Lal's death. They were in the hands of Raja Lalji, who, apparently for his own purposes, and not in their interest, got them to execute the mukhtamamah in the form in which it appears. Unless the fact that Rani Aehhan Kuar and Kuar Inayat Singh executed the bond of the 1st of April 1881, in which reference' in most. general and vague terms is made to the bond of the 2nd of December 1877, be taken as proof that they knew on the 1st of April 1881, that Raja Lalji had made the bond of the 2nd of December 1877, and unless the evidence of Nand Kishore, on which we can place no reliance, is to be believed, there is absolutely nothing to suggest that Rani Achhan Kuar or Kuar Inayat Singh were aware, before the commencement of this suit, or that on Moti Ram Sah's bond, that Raja Lalji was, as their general attorney, acting upon any power to mortgage or sell their family property. The bond of the 25th of May 1877, has not been put; before us in evidence, and we are left in the dark as to that transaction and as to the person or persons by whom it was made. We have not been informed as to whether or not Intizam Begam obtained a mortgage bond, or if she did, by whom it was made. It was open to the plaintiffs, if it would have been to their interest, to have produced evidence as to those transactions with the object of showing that Rani Hulas Kuar, Rani Achhan Kuar, or Kuar Inayat Singh knew that Raja Lalji was pledging their credit or mortgaging their property, if such evidence would have shown anything of the kind. Raja Lalji knew, even if the Sub-Registrar had no reason to suspect the fact that his son whose signature he obtained to that mukhtamamah was a minor and that neither his wife nor his son had then any other interest than that of expectancy in the family property, in which he himself had no interest whatever; and yet, exercising the influence which he possessed as a son-in-law, a, husband and a father, and apparently without explaining the effect of the mukhtamamah, he procured the signatures to it of these two pardahnashin ladies and his minor son. It is impossible for us under such circumstances to hold that either Rani Achhan Kuar or Kuar Inayat Singh was bound by her or his execution of the mukhtamamah of the 5th of March 1877.

19. As Rani Hulas Kuar died on the 22nd of June 1878, it is unnecessary to. oonsider whether she was bound by her execution of that mukhtamamah unless and until it is proved that there was necessity for the making of the mortgage bond of the 2nd of December 1877, or that the lenders of the money were on proper inquiry reasonably satisfied that such a necessity existed.

20. It is well established law in India that as against reversioners a recital in a mortgage of the family property made by a female having a limited estate that the mortgage money was advanced for necessary purposes, as, for instance for the payment of Government revenue, is not evidence that there was in fact any necessity for the loan. Such a recital does not even suggest to our minds, that the mortgagees of the 2nd of December 1877, made any reasonable inquiry as to the existence of any necessity for the loan. That bond recites that the Rs. 10,000 were borrowed for the purposes of paying the 'Government revenue, seed and takavi expenses, &c.;' The detail at the end of the bond represents that a cash payment of Rs. 2,311-13-0 was made and that the balance was in respect of money due on hundis and for interest. None of the accounts which have been produced in evidence suggest that any portion of that Rs. 10,000 was advanced for any necessary purpose of the family. The only oral evidence which, if true, suggests that any portion of that Rs. 10,000 was borrowed for necessary purposes is that of Nand Kishore, (document, No. 251). He is a pleader practising at Bareilly and is the father of Govind Prasad, one of the persons in whose favor the bond of the 2nd of December 1877, and that of the 1st. of April 1881, were made. NandKishore was not ostensibly a party to either of those bonds or interested in them. Govind Prasad was at the date of the bond of 1877, 18 or 19 years old, and it does not appear how he at that early age had acquired money to lend on mortgage, but, according to the detail at the foot of the bond, one half of the Rs. 10,000 was advanced by Govind Prasad. Govind Prasad (document No. 250) said: I am not fully acquainted with the circumstances of the two bonds on the basis of which I have instituted this suit. They should be ascertained from my manager, Munshi Nand Kishore, pleader, who is my father. The debt was advanced through him.' And in cross-examination: 'Munshi Nand Kishore defrays the expenses of this case on my behalf.' Govind Prasad apparently knew little or nothing about the bonds or his suit. Nand Kishore in his evidence made a statement in reference to the bond of the 1st of April 1881, to which he was not ostensibly a party, which indicates that he and not Govind Prasad was the lender of the money. He said: 'After that I refused to give money. Then they executed a bond for Rs. 20,000 in my favor.' A careful consideration of the evidence of Nand Kishore has satisfied us that it is such as an unscrupulous lawyer, who had become aware of the difficulty of fixing Rani Achhan Kuar and Kuar Inayat Singh and their family property with liability, would give. In our opinion his evidence must be regarded with the greatest suspicion. He said, in reference to the bond of the 2nd of December 1877: 'Rs. 10,000 was borrowed owing to drought to pay revenue. The five persons executed a bond for Rs. 10,000, through Raja Lalji, the general attorney. Some money was given in cash and some money was set off against the interest due under the old bond. Rani Hulas Kuar was alive at that time. The bond was executed on her behalf through Raja Lalji.' Later on he said: 'I was not present when the bond of 1877 was written.' In cross-examination Nand Kishore said: 'The bond for Rs. 10,000, the basis of the claim, was not signed by Kuar Inayat Singh. I do not verbally recollect how much money in cash was given in respect of this bond. A detail of it is given in the bond. The money of the bond for Rs. 10,000, was not given before me. It was given by Mohan Lal, but not in my presence. I know that a conversation about the transaction of the bond of 1877 was held with me and Mohan Lal, but there was more conversation with Mohan Lal than with myself. I had a talk with Raja Lalji and Kuar Inayat Singh. Nawab Abdul Aziz Khan, pleader, sat at that time. The conversation with Mohan Lal did not take place before me. There was a drought in 1877. Revenue was demanded from them and all other raises. Raja Lalji told me that there was a demand of revenue and that I should give him money, and that I should make arrangement for money.' Mohan Lal is dead, so is Raja Lalji. Kuar Inayat Singh swore positively that Raja Lalji did not consult him in regard to the management of the property, and that he had not received a single farthing on account of either of the bonds in suit. He was not cross-examined as to any conversation with Nand Kishore. With the single exception of the recital in 'the bond of the 2nd of December 1877, not one piece of evidence has been put before us in corroboration of Nand Kishore's statement suggesting that the Rs. 10,000, or any part of it, was advanced for the payment of Government revenue. We are not satisfied with the evidence of Nand Kishore, and we find that it is not proved that there was any necessity for the bond of the 2nd December 1877, or that those who advanced the Rs. 10,000, made any inquiry as to the necessity for the loan.

21. The earned Counsel for the defendants-appellants raised further points as to the bond of the 2nd of December 1877, as to which, holding the views which we have already expressed, we do not think it necessary to give any opinion. One of such points was this: In the commencement of the bond it purports to be by Raja Lalji, son-in-law, Rani Hulas Kuar, wife, Achhan Kuar, daughter and Kuar Inayat Singh, daughter's son, 'and heirs of Raja Khairati Lal deceased.' The bond was executed by Raja Lalji alone, and nowhere in the bond or in its execution does it purport to have been executed by Raja Lalji as the attorney or on behalf of any one except himself, and he in the bond is falsely described as one of the heirs of Raja Khairati Lal. It was contended that the bond was not executed by Raja Lalji under the mukhtarnamah of the 5th of March 1877. We were referred to Story on Agency, paragraphs 145 to 150, and paragraph 160 A; Paley on Agency, 3rd ed. p. 180; Act No VII of 1882, Section 2; 44 and 45 Vic. c. 41, Section 46; to the observation of Cotton, L.J. in In re Whitley Partners, Limited, L.B. 32 Ch. D. at p. 338, and to Leake on Contracts, 3rd ed. p. 400. It was contended that the endorsement by the Sub-Registrar of the 6th of December 1877, could not affect the construction of the bond and was not evidence against the defendants that the bond had been executed by Raja Lalji as the attorney of anyone.

22. It was also contended on behalf of the defendants that as the bond of the 2nd of December 1877, was not in fact executed by the grantors of the mukhtarnamah of the 5th of March 1877, Raja Lalji had no authority under the special powers as to registering documents contained in that mukhtarnamah to register the bond on behalf of anyone but himself in his individual capacity, and that the registration as against the defendants was invalid and consequently that Section 49 of the Indian Registration Act 1877, (Act No. Ill of 1877), applied.

23. We should now consider the transaction relating to the bond of the 1st of April 1881.

24. The bond of the 1st of Aprill881, was executed by Raja Lalji and Kuar Inayat Singh by their putting their signatures to it, and by Rani Achhan Kuar by her seal being put to it. That bond purports to be for interest amounting to Rs. 8,100 on the bond of the 2nd of December 1877, and another bond for Rs. 20,000 of the 25th of May 1877 and for the following items:

Rs. a. p. 'In respect of the Rukka of 1st December 1880. Principal amount . . . 10,475 0 0In respect of the interest on the amount of theRukka .. . . .. 1,300 14 0In cash ' ..,, . . 124 2' 0Making a total of Rs. 20,000.

25. The particulars of the sum of Rs. 10,475-0-0 as stated in the bond are as follows:

Rs. a. p. On 22nd June 1879, for revenue . . 2,000 0 0On 5th November 1879, to pay interest to IntizamBegam . . . . 1,575 0 0On 17th May 1880, to defray expenses of daughter'smarriage . . . . 2,000 0 02nd August 1880, to pay interest to Moti RamSah . . . . 4,000 0 0On 9th October 1880, to pay interest to IntizamBegam . . . . 900 0 0

26. The bond of the 25th of May 1877, has not been sued upon, and we have no information concerning it or of the transaction with Intizam Begam referred to in. the above detail beyond that contained in the evidence of Nand Kishore.

27. If the views which we have already expressed be correct, neither Rani, Achhan Kuar, nor Kuar Inayat Singh, nor the family property which was of Raja Khairati Lal was liable under the bond of the 2nd of December 1877. For the Rs. 4,000 interest to Moti Ram Sah [144] neither Rani Achhan Kuar, nor Kuar Inayat Singh, nor their family property was liable. That Rs. 4,000 was due under the bond which was sued upon in the case of Lala Amamath Sah v. Rani Achhan Kuar L.R. 19 I.A., 196. As to the items of Rs. 1,575-0-0 and Rs. 900, all the information appearing on the record put before us is the following statement of Nand Kishore: 'Raja Lalji and Inayat Singh asked me to get some more money advanced to them. Accordingly I got Rs. 30,000-0-0 advanced to them by the wife of Usman Khan. His wife's name is Intizam Begam; and she obtained a decree.' Kuar Inayat Singh was not asked a single question in cross-examination suggesting that he had made any such request of Nand Kishore or that he had been in any way liable to Intizam Begam for a debt or under a bond or under a decree. We place no reliance upon the evidence of Nand Kishore; and beyond that evidence and the fact that Kuar Inayat Singh executed the bond of the 1st of April 1881, nothing has been put before us to suggest, much less to prove, that Kuar Inayat Singh was in any way liable for any debt to Intizam Begam. For all that appears, that debt and the liability for it may have been Raja Lalji's alone. Nand Kishore's evidence, beyond the fact that the seal of Rani Achhan Kuar had been put to the bond of the 1st of April 1831 after that bond had been at one side of the pardah read to some one whom he did not see and who was at the other side of the pardah, does not suggest that Rani Achhan Kuar was under any liability for any debt to Intizam Begam or even knew that any money was owing by any one to Intizam Begam.

28. If the item of Rs. 2,000 was advanced on the 17th of May 1880 to defray the expenses of the marriage of Raja Lalji's daughter, these expenses would in ordinary course be borne by her father Raja Lalji, and not by Raja Khairati Lal's estate, and it does not appear why Rani Achhan Kuar or Kuar Inayat Singh or their property should have been liable in respect of those marriage expenses, if they were in fact incurred. As to the interest on the bond of the 25th of May 1877, beyond the entry of the following particulars in the bond of the 1st of April 1881: 'Compound interest in respect of the bond for Rs. 20,000, dated 25th May 1877, up to end of March 1881. Rupees 5,251-10-9,'--the recital in the bond of the 1st of April 1881, that Rs. 20,000 had been found due by Raja Lalji, Rani Achhan Kuar and Kuar Inayat Singh, on two bonds, one of which was stated in the bond of the 1st of April 1881, to be a bond of the 25th of May 1877, and the following statement of Nand Kishore: 'In 1877,1, on behalf of Govind Prasad jointly with Baij Nath, (again said) Magni Ram and Mohan Lal advanced a loan of Rs. 20,000 to four persons, viz., Hulas Kuar, Achhan Kuar, Inayat Singh and Raja Lalji,'--there is nothing before us to suggest any liability of Rani Achhan Kuar or Kuar Inayat Singh or their family property in respect of that loan of Rs. 20,000 or the interest on it. On the 25th of 'May 1877, Rani Hulas Kuar was alive and in possession of the family property for the estate of the widow of a sonless Hindu. The interests of Rani Achhan Kuar and Kuar Inayat Singh were merely expectancies, and Kuar Inayat Singh was a minor, and further, there is nothing to show that Rani Hulas Kuar or Rani Achhan Kuar knew of that loan of the 25th of May 1877, or that the transaction was explained to them or that they or Kuar Inayat Singh or the family derived any benefit whatsoever from the loan of that Rs. 20,000 of the 25ih of May 1877. It may be inferred from the evidence of Rani Achhan Kuar and Kuar Inayat Singh that they knew nothing of the loan of the 25th of May 1877.

29. Another item of those which made up the Rs. 20,000 of the bond of the 1st of April 1881, was that of Rs. 2,000 which, according to the bond, had been advanced on the 22nd of June 1879, for the payment of Government revenue. Outside the bond of the 1st of April 1881, no evidence has been' put before us to show that the Rs. 2,000 or any part of it was required in 1879 for the payment of revenue, or indeed that any such sum was advanced for any such purpose, or that the Government revenue could not have been paid at that time out of the rents of the family property. This is what Nand Kishore said as to he consideration for the bond of the 1st of April 1881: 'Out of the amount of the bond for Rs. 20,000 the executants took some Lucknow hundis to pay the debt due to Sah Badri Das, because they were in debt, and they further stated that some money was required to meet the expenses of the marriage of the daughter, and a portion of the money was set off against the interest due under the old bonds, and Rs. 124 and odd annas were paid in cash.' Nand Kishore said nothing in connection with that bond as to any necessity for the payment of the Government revenue. If any reliance is to be placed on the details given in the bond of the 1st of April 1881, no part of the consideration except the sum of Rs. 124-2-0 was advanced after the 9th of October 1880. The sum of Rs. 1,300-14-0 was, according to the detail in the bond, interest on a rukka of the 1st December 1880, given in respect of the items which made up the sum of Rs. 10,475. The item of Rs. 124-2-0 most probably represented the cost of the stamped paper upon which the bond of the 1st of April 1881 was written and the expenses of preparing the bond and getting it registered. We have gone thus at length into the items composing the sum of Rs. 20,000 of the bond of the 1st of April 1881, in order to ascertain, if possible, what was the consideration, if any, for Rani Achhan Kuar and Kuar InayatSingh making themselves and their family property liable for the payment of the Rs. 20,000 with interest at the rate of 14 annas per centum per mensem, not to speak of a liability for compound interest at 12 per cent, per annum on six-monthly rests.

30. It is not shown to our satisfaction that Rani Achhan Kuar and Kuar Inayat Singh received any consideration for the bond of the 1st of April 1881.

31. Let us now see if they or either of them understood the transaction which Raja Lalji induced them to enter into in 1881. Rani Achhan Kuar swore and we believe her, that she had never borrowed any money from Thakur Das and Baij Nath of Pilibhit or Govind Prasad of Bareilly and that she had not known until the present suit was filed and the demand was made against her and Kuar Inayat Singh that Raja Lalji had borrowed any money from the plaintiffs or their firms. Nand Kishore said that Shankar Sahai read the bond of the 1st of April 1881, to Rani Achhan Kuar and brought it back to him where he was sitting after her seal had been affixed to it. Later on he admitted in cross-examination that he never saw Rani AchhanKuar, and he said: 'I did not see anyone with my own eyes affixing the seal. I did not see the person with my own eyes to whom the bond was read out. There was apardah between. I saw the seal from a distance and not from near. It was in the hand of Shankar Sahai. He affixed the seal. I do not recollect wherefrom Shankar Sahai got the seal.' There is not one word of evidence placed before us to show that the bond of the 1st of April 1881, or any of the items in it was ever explained to Rani Achhan Kuar. It was a bond which required considerable explanation, and to be carefully explained, if it was desired by Raja Lalji and Nand Kishore that Rani Achhan Kuar and her son Kuar Inayat Singh should understand the transaction to which it referred and the liability 'which they were asked to undertake in executing it. One use which was made of that bond in the Subordinate Judge's Court, and also before us in this appeal, was to found an argument that Rani Achhan Kuar and Kuar Inayat Singh by executing that bond admitted a liability of themselves and their family property under the bond of the 2nd of December 1877, and indeed a comparison of the bonds of the 1st of April 1881 and the 2nd December 1877 leads us to the conclusion that the object of the reference in the bond of the 1st of April 1881 to the bond of the 2nd of December 1877, and of making the interest in arrear under the bond of the 2nd of December 1877 part of the consideration for the bond of the 1st of April 1881 was to obtain evidence, by the execution of the bond of the 1st of April 1881 by Rani Achhan Kuar and Kuar Inayat Singh, that they hid admitted a liability of themselves and their property under the bond of the 2nd of December 1877. Under the bond of the 2nd of December 1877, the ordinary interest payable was at the rate of one rupee per centum per mensem and the condition as to compound interest was as follows: 'In case of default in payment of interest every three months, the interest will be added to the principal and the creditors will be entitled to take (charge) compound interest at the rate of one rupee four annas per cent, per mensem without regard to the due date or after the expiration of the term at their pleasure.' Under that condition the interest, Rs. 2,848-5-3, in arrear on the 31st of March 1881, under the bond of the 2nd of December 1877, would have borne interest at the rate of one rupee four annas per centum per mensem; whereas by making that interest, Rs. 2,848-5-3, as was done, part of the principal consideration for the bond of the 1st of April 1881, it would bear only ordinary interest at the rate of 14 annas per centum per mensem, and the compound interest on the six-monthly rests under the bond of the 1st of April 1881 was at the rate of only one rupee per centum per mensem. Nand Kishore, who negotiated on behalf of the money-lenders the transaction of the 1st of April 1881, volunteered no explanation of the reasons which induced the moneylenders of 1877 to forego the more advantageous terms of interest as to the sum of Rs. 2,848-5-3, and we cannot conceive what other object they could have had than that of attempting to make evidence to fix Rani Achhan Kuar and Kuar Inayat Singh and their family property with liability for the bond of the 2nd of December 1877. If that was their object it would most probably have been frustrated if the bond of the 1st of April 1881 had been explained to Rani Achhan Kuar and Kuar Inayat Singh. What chance of explanation or of independent advice had Rani Achhan Kuar or Kuar Inayat Singh? It was not to the interest of Raja Lalji to explain to his wife that she was incumbering her ancestral property. Although Shankar Sahai was an agent of the family, he was, as appears by the Sub-Registrar's endorsement on the bond of the 2nd of December 1877, as far back as 1877, the agent of Raja Lalji arid he was not likely to give information or explanations to Rani Achhan Kuar or to Kuar Inayat Singh which Raja Lalji was unlikely to give. Shankar Sahai, although an agent of the family, was obviously not a confidential servant of Rani Achhan Kuar. She was pardahnashin as to him, and Kuar Inayat Singh tells us that Achhan Kuar did not appear before Shankar Sahai. Even Nand Kishore makes Shankar Sahai stand on the outside of the pardah whilst reading the bond of the 1st of April 1881 to some one who was on the other side of the pardah. Is it likely that Rani Achhan Kuar had the deed of the 1st of April 1881 explained to her by Kuar Inayat Singh? Kuar Inayat Singh had just come of age, he was then 19 or 20 years of age. In our opinion he entered as blindly into this transaction as did Rani Achhan Kuar. He had no experience of business. Raja Lalji managed everything. Kuar Inayat Singh said: 'I signed the document of 1881, because filial duty prevented me from disobeying his (Raja Lalji's) order. Also his influence as father prevented me from disobeying his order.' We do not believe the statement of Nand Kiahore that--'Inayat Singh signed himself after seeing and understanding all the accounts.' That Kuar Inayat Singh may have seen that details of the Rs. 20,000 were stated in the bond is possible, but that he understood the accounts, or what those details represented, or what the object of the bond was, or what might be the inference to be drawn from his execution of it, we do not believe. In our opinion Kuar Inayat Singh blindly executed the bond at the bidding of his father Raja Lalji. Nand Kishore, who, on behalf of the mortgagees, negotiated that transaction and saw to the execution of the bond must have known perfectly well that he was dealing with a help-less woman and her equally helpless son who had no one to advise them. Except the sum of Rs. 124-2-0, to which we have referred, not one farthing was advanced on the execution of the bond after the 1st of April 1881. The balance of the Rs. 20,000, if the detail given in the bond can be treated as reliable evidence for any purpose, consisted of advances made between the 22nd of June 1879 and the 9th of October 1880, not proved in our opinion to have been made to these defendants or for the benefit of their property, and of interest upon loans, for some of which loans neither these defendants nor their property were liable, and for the remainder of which loans it is not in our opinion proved that these defendants or their property was liable. That the plaintiffs, or those whom they represent knew that the property which they sought to have mortgaged to them was not the property of Raja Lalji and was the family property left by Raja Khairati Lal, or that they were aware that there was no necessity for incurring the debts appears to be a reasonable inference from the fact that they sought to make the Hindu woman in possession and one of the immediate reversioners parties to the bonds so as to bind them, if possible, for advances previously made. They went further, for Nand Kishore attempted to prove at the trial that Kuar Inayat Singh was of full age in 1877. It was proved that he was then a minor, and subsequently, as appears from the finding on the 2nd issue framed by the Subordinate Judge, it was admitted that Kuar Inayat Singh was a minor at the date of the execution of the bond of the 2nd of December 1877. Even if it be assumed that Kuar Inayat Singh understood the scope and effect of the bond of the 1st of April 1881, that fact would not in our opinion entitle the plaintiffs to the relief claimed by them.

32. The only relief to which they may be entitled, if at all, is a decree for the sale of the property mortgaged in the two bonds on which their suit is founded. Having regard to the law of limitation they are not entitled to a decree personally against either of the two defendants. As we have shown above, the bond of the 2nd of December 1877 is not binding on Rani Achhan Kuar. It has not been proved that she executed the bond of the 1st of April 1881, with a knowledge of its contents and of the effect of it on her property. So far therefore as her interests in the property are concerned, the mortgages on which the plaintiffs rely cannot be enforced against those interests.

33. Kuar Inayat Singh has no present vested interest in the property. His interests are those of a reversioner expectant on the death of his mother, Rani Achhan Kuar. A mortgage of such interests during the life-time of Rani Achhan Kuar cannot affect the property in the hands of Rani Achhan Kuar. We have pointed out in an earlier part of the judgment, that, under the Hindu law which prevails in these Provinces, there is no power in a reversioner to sell or mortgage his interests in expectancy. Under the ordinary law in this country also he has no such power. The Code of Civil Procedure, 1882, exempts in Section 266, Clause (k), contingent interests of this description from liability to sale in execution of a decree. The same was the rule under the Code of 1877. Under Act No. VIII of 1859 also it was held, in Ram Chunder Tantra Doss v. Dharmo Narain Chuckerbutty 17 W.R.F.B. 15, that the interest of an heir according to Hindu law, expectant on the death of a widow in possession was not property, and was not rendered liable to attachment and sale in execution of a decree by Section 205 of that Act. Kuar nayat Singh, therefore, could not pass any title to the plaintiffs under the mortgage of the 1st of April 1881, and in any view their suit is liable to be defeated.

34. To sum up, we find that in 1877, Kuar Inayat Singh was a minor, and consequently was not bound by his execution of the mukhtarnamah of the 5th of March 1877, or by the bond of the 2nd December 1877.

35. We find that the mukhtarnamah of the 5th of March 1877 was not explained to Rani Achhan Kuar, and that she understood the mukhtarnamah merely conferred power on Raja Lalji to act as the agent of the family in the management of the village property, and did not understand that it conferred power on him to mortgage or sell the family property, and that she was not bound by it.

37. We find that Raja Lalji had no authority to execute the bond of the 2nd of December 1877, on behalf of Rani Achhan Kuar, or of Kuar Inayat Singh, or to borrow money on their account.

38. We find that it is not proved that there was any family necessity for borrowing the money, the alleged consideration for the bond of the 2nd of December 1877, or for the mortgaging of the family property.

39. We find that it is not proved that the mortgagees of the bond of the 2nd of December 1877 satisfied themselves upon any reasonable inquiry that there was any family necessity for the making of that bond. We find that neither Rani Achhan Kuar nor Kuar Inayat Singh nor their family property is liable by the bond of the 2nd December 1877.

40. We find that the bond of the 1st of April 1881 was not explained to Rani Achhan Kuar, and that it is not proved that she understood that bond or the liabilities it purported to create or admit.

41. We find that it is not proved that there was any family necessity for the making of the bond of the 1st of April 1881, or that the mortgagees of that bond satisfied themselves upon any reasonable inquiry that there was any family necessity for the making of the bond.

42. We find that it is not proved that Rani Aohhan Kuar or Kuar Inayat Singh, or their family property was under any liability in respect of any part of the money, the alleged consideration for that bond, or that they or either of them received any consideration for the making of the bond.

43. We find that the bond of the 1st of April 1881 is not proved to be a. bond binding upon Rani Achhan Kuar or her interest as a Hindu daughter in the family property, and that under such circumstances, and Kuar Shamsher Bahadur being then alive and having an equal interest with Kuar Inayat Singh in the family property, and Kuar Inayat Singh having merely an interest in expectancy in the family property and being-incapable under the Hindu Law of mortgaging or selling his interest in expectancy, no valid mortgage of the family property was effected by the bond of the 1st of April 1881, and no valid mortgage existed to the making of which he, as a reversioner, could consent.

4. We further find that Raja Lalji either with the active assistance of with the knowledge and connivance of Nand Kishore, who was acting for the mortgagees of the bond of the 1st of April 1881, took an undue advantage of his position as father and of the youth and inexperience and want of business; knowledge of Kuar Inayat Singh, in procuring the execution of the bond of the 1st of April 1881, and that when Kuar Inayat Singh executed that bond the did not understand its object or its effect.

5. The Subordinate Judge on the ground of limitation dismissed the claim of the plaintiffs for a decree personally against Rani Achhan Kuar and Inayat; Singh. From that dismissal there has been no appeal.

6. We allow this appeal, and dismiss with costs in both Courts so much of the plaintiffs' suit as was not dismissed by the Subordinate Judge.


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