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Ghansham Singh Vs. Badiya Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in(1902)ILR24All547
AppellantGhansham Singh
RespondentBadiya Lal and anr.
Excerpt:
hindu law - hindu widow--alienation for legal necessity--duty of person advancing money to hindu widow--burden of proof. - - in regard to the first mortgage, the money was required to meet government revenue and partition expenses, and in the case of the second mortgage the money was required to meet partition expenses, government revenue, moneys expended on a well, and in the purchase of seed......rs. 282. upon appeal the district judge held on the evidence that both the mortgages were made to meet legal necessities. in regard to the first mortgage, the money was required to meet government revenue and partition expenses, and in the case of the second mortgage the money was required to meet partition expenses, government revenue, moneys expended on a well, and in the purchase of seed. accordingly so finding he has dismissed the plaintiff's claim with costs.3. it is now contended before us by the learned pleader for the appellant that the district judge ought to have found how much of the moneys advanced on foot of each mortgage were actually required to meet legal necessities. we are unable to follow him in this contention. if a mortgagee advances money after making proper.....
Judgment:

John Stanley, C.J. and Banerji, J.

1. This suit was brought by the plaintiff to have it declared that two mortgages, one made by the widow of Charan Singh and the other by his mother, were made without legal necessity and wore void, and for possession and mesne profits. Charan Singh was the owner of the property in suit. After his death his mother Jai Kunwar was recorded as owner. On the 8th of January, 1877, the mother and the widow together hypothecated a share in the village Nawsnagir to Madan Gopal to secure a sum of Rs. 300. Madan Gopal sued upon his mortgage and obtained a decree, and at the auction sale Ishri Prasad, father of the defendants, purchased the property on the 23rd of August, 1892. Again, on the 7th of February, 1881, the same parties mortgaged a share in another village called Kajrauth to one Murli Dhar. On his death the name of Ishri Prasad was entered in respect of the mortgaged property. The mother of Charan Singh died many years ago. His widow Dan Kunwar died on the 17th of November, 1896. After her death the present suit was instituted by the present plaintiff claiming to be the representative of Charan Singh.

2. The defence to the suit was that the mortgage was made for legal necessity. The first Court held that the first mortgage was not made for any legal necessity, and in respect of the property comprised in that mortgage decree the plaintiff's claim. As regards the second mortgage, the first Court held that it was made for legal necessity to some extent, that is, that money to the amount of Rs. 282 was required to meet a legal necessity; that as regards the balance, there was no legal necessity for the loan, and accordingly gave a decree to the plaintiff for possession of the property comprised in the second mortgage subject to the payment of Rs. 282. Upon appeal the District Judge held on the evidence that both the mortgages were made to meet legal necessities. In regard to the first mortgage, the money was required to meet Government revenue and partition expenses, and in the case of the second mortgage the money was required to meet partition expenses, Government revenue, moneys expended on a well, and in the purchase of seed. Accordingly so finding he has dismissed the plaintiff's claim with costs.

3. It is now contended before us by the learned pleader for the appellant that the District Judge ought to have found how much of the moneys advanced on foot of each mortgage were actually required to meet legal necessities. We are unable to follow him in this contention. If a mortgagee advances money after making proper inquiry for the purpose of ascertaining that the money is required for legal necessity, it is not incumbent on him to see that the money which he advances is applied to meet such legal necessity, nor is he, in our opinion, bound to ascertain that every pice of the money so advanced is actually required for a legal necessity. In the case of Amar Nath Sah v. Achan Kunwar (1892) I.L.R. 14 All. 420 their Lordships of the Privy Council observed that in order to sustain an alienation of property by a Hindu widow having a widow's estate, it must be shown that there was either a legal necessity for the alienation, or at least the grantee was led, on reasonable grounds, to believe that there was. There is nothing in their Lordships' judgment to suggest that there is any obligation on the lender in such a case to satisfy himself that the entire money which he is advancing is actually required for a legal necessity, provided he acts bond fide in the matter, and reasonably believes that the money is required to meet a legal necessity. This being our view the appeal fails and is dismissed with costs.


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