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Nand Ram Vs. Bhupal Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtAllahabad
Decided On
Judge
Reported in(1912)ILR34All126
AppellantNand Ram
RespondentBhupal Singh and ors.
Excerpt:
hindu law - mitakshara--joint hindu family--money borrowed by father at a high rate of interest--legal necessity--burden of proof. - - 5. the plaintiff, however, was not satisfied with the decree of the lower appellate court and preferred this appeal claiming compound interest as stipulated in the mortgage deed. we are of opinion that the plaintiff's appeal must fail......by bahadur singh, ancestor of the defendants nos. 1--5. the rate of interest stipulated for in the mortgage deed is rs. 2-4-0 per cent. per mensem, compound interest, with half-yearly rests. the plaintiff alleged that in accordance with the terms of the mortgage the total amount due to him exceeded rs. 17,000, but he claimed to recover rs. 2,500 only.2. the court of first instance was of opinion that the mortgage was made for the payment of government revenue, but that it had not been established that there was any necessity for borrowing money at the high rate provided for in the mortgage deed. that court made a decree for simple interest at the rate of 18 per cent, per annum, and the total amount decreed by it was rs. 432-1-0, that is, more than five times the principal amount.....
Judgment:

H.G. Richards, C.J. and Banerji, J.

1. This appeal arises out of a suit brought by the plaintiff appellant to enforce a mortgage, dated the 8th February, 1888, for Rs. 80, executed by Bahadur Singh, ancestor of the defendants Nos. 1--5. The rate of interest stipulated for in the mortgage deed is Rs. 2-4-0 per cent. per mensem, compound interest, with half-yearly rests. The plaintiff alleged that in accordance with the terms of the mortgage the total amount due to him exceeded Rs. 17,000, but he claimed to recover Rs. 2,500 only.

2. The court of first instance was of opinion that the mortgage was made for the payment of Government revenue, but that it had not been established that there was any necessity for borrowing money at the high rate provided for in the mortgage deed. That court made a decree for simple interest at the rate of 18 per cent, per annum, and the total amount decreed by it was Rs. 432-1-0, that is, more than five times the principal amount borrowed.

3. The plaintiff appealed and the defendants filed objections under Order XLI, Rule 22, of the Code of Civil Procedure. The lower appellate court in a somewhat sketchy judgment came to the conclusion that no undue influence had been exercised on the mortgagor and varied the decree of the court of first instance and allowed simple interest at the rate of Rs. 2-4-0 per cent, per mersem, that is, Rs. 27 per annum.

4. This was an inconsistent judgment, because the court should either have allowed compound interest at Rs. 37 per cent, per annum, which was the contract rate of interest, or if it considered that it was competent to interfere with the contract of the parties and reduce the rate, it ought to have set forth reasons for interfering with the decision of the court below.

5. The plaintiff, however, was not satisfied with the decree of the lower appellate court and preferred this appeal claiming compound interest as stipulated in the mortgage deed. The defendants have preferred the connected appeal No. 1864 of 1910, in which they urge that the court below ought not to have raised the rate of interest allowed by the court of first instance. We are of opinion that the plaintiff's appeal must fail. It has been held by a Full Bench of this Court in Chandradeo Singh v. Mata Prasad (1909) I.L.R. 31 All. 176 that where a plaintiff seeks to enforce a mortgage made by the father or manager of a joint Hindu family as against the joint family property, it lies on the plaintiff to show that the loan was contracted for the necessities of the family. We are bound to follow this Full Bench ruling, and therefore it lay on the plaintiff to prove that there was necessity not only for borrowing the money but for borrowing it at the exorbitant rate mentioned in the mortgage deed. In the case of Hurro Nath Rai Chowdhri v. Randhir Singh (1880) I.L.R. 18 Calc 311 their Lordships of the Privy Council held, in a case in which money had been advanced to a Hindu for the payment of Government revenue, that the plaintiff ought to have proved that there was a necessity to borrow the money at the high rate of interest agreed upon in the mortgage deed. This was, no doubt, the case of a widow acting as guardian of an infant, but in view of the Full Bench ruling of this Court to which we have referred, and also of the decision of their Lordships of the Privy Council in Kameswar Pershad v. Run Bahadur Singh (1880) I.L.R. 6 Calc 843 the principle which governs the case of a guardian of a minor and of a Hindu widow should be applied to the case of the father of a Hindu family. In this case the court of first instance found that the property mortgaged was of such value as to make the borrowing of money at such a high rate of interest unnecessary. It was also of opinion that it had not been established that there was any necessity for borrowing at such high, rate of interest. This finding was never seriously attacked, nor do we see how it could have been. We must, therefore, hold that, although there was necessity for borrowing the money, there was no necessity for borrowing at the high rate contracted for in the mortgage deed, and we are of opinion that in view of the long delay which the plaintiff has made in instituting his suit, the court of first instance was justified in reducing the rate of interest claimed to simple interest at the rate of Rs. 18 per cent, per annum. The result is that we must dismiss this appeal with costs, and we order accordingly.


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