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Kanhaiya Lal Vs. Niranjan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1925All367
AppellantKanhaiya Lal
RespondentNiranjan Lal and ors.
Excerpt:
- .....for the sum of rs. 7,000, the whole of which was left with the mortgagee for the satisfaction of a prior mortgage of the 10th february, 1902 held by the defendant zamir-ul-hasan khan.2. the defendant nos. 1 to 4 met the claim with the plea that the document in question, if executed by gobind ram, was executed without consideration, and that there was no legal necessity to justify the mortgage. the defendant, abdul hamid khan, is said to have purchased a portion of the mortgaged property at auction in execution of a decree on a prior mortgage, to which gobind ram was a party. abdul hamid khan sold his rights to zamir-ul-hasan khan on the 2nd april, 1921. the defence of abdul hamid khan was that he had no interest subsisting in any portion of the mortgaged property; and that of.....
Judgment:

Kanhaiya Lal, J.

1. The decision of the Court below in this case cannot be sustained. The plaintiff seeks to recover the money due on a mortgagee effected by Gobind Ram, the father of the defendants Nos. 1 and 2 and the grandfather of the defendants Nos. 3 and 4, in favour of Dwarka Das on the 31st May, 1909. The Plaintiff is the son of Dwarka Das. The mortgage was effected for the sum of Rs. 7,000, the whole of which was left with the mortgagee for the satisfaction of a prior mortgage of the 10th February, 1902 held by the defendant Zamir-ul-Hasan Khan.

2. The defendant Nos. 1 to 4 met the claim with the plea that the document in question, if executed by Gobind Ram, was executed without consideration, and that there was no legal necessity to justify the mortgage. The defendant, Abdul Hamid Khan, is said to have purchased a portion of the mortgaged property at auction in execution of a decree on a prior mortgage, to which Gobind Ram was a party. Abdul Hamid Khan sold his rights to Zamir-ul-Hasan Khan on the 2nd April, 1921. The defence of Abdul Hamid Khan was that he had no interest subsisting in any portion of the mortgaged property; and that of Zamir-ul-Husan Khan was that his vendor had purchased the right of Gobind Ram in satisfaction of a decree on a prior charge and the property purchased by him was not therefore liable for the plaintiff's claim.

3. The Court below dismissed the claim, following the decision in Sahu Ram Chandar v. Bhoop Singh A.I.R. 1917 P.C. 61. The view taken by it was that the prior mortgage debt, for the satisfaction of which the mortgage in suit was executed, did not amount to an antecedent debt, inasmuch as no legal necessity was shown to justify a mortgage of the ancestral property by Govind Ram at the time. It was asserted on behalf of the defendants Nos. 1 to 4 that Gobind Ram was a man of immoral character and extravagant habits; but no finding was recorded by the Court below on that point.

4. The decision of their Lordships in Sahu Ram Chandra v. Bhoop Singh A.I.R. 1917 P.C. 61 has since been qualified by the later decision in Brij Narain Roy v. Mangla Prasad Roy A.I.R. 1924 P.C. 50. In the latter decision their Lordships have held that if the managing member of a joint undivided estate purports to burden the estate with a mortgage, and he happens to be the father, his sons aro bound by the mortgage if the mortgage is effected to discharge an antecedent debt. This is of course, subject to the ordinary rule that the sons can escape liability by showing that the antecedent debt was incurred for immoral or illegal purposes. The evidence adduced by the contesting defendants on the point is of a very vague and general character. All that it shows is that Gobind Ram, who was employed as a Sub-Registrar and had apparently inherited some property from his adoptive father, was addicted to immoral habits and that he spent money extravagantly to meet his licentious habits. There is no evidence, however, to show that the particular debt, for the payment of which the mortgage in suit was executed, was made for immoral purpose. On the other hand, there is evidence to show that it was executed mainly to pay certain prior debts due by the mortgagor. The defendants Nos. 1 to 4 are, therefore, liable for the payment of the money due on the mortgage in suit.

5. A portion of the mortgaged property, comprising 1 biswa 7 biswansis and 7 kachwansis of No. 2 khewat of the village Qiampur, appears to have been purchased by Abdul Hamid Khan in execution of a decree on the prior mortgage. That property has since been sold by him to Zamir-ul-hasan Khan. The plaintiff cannot enforce his mortgage against that property, because the mortgagor was a party to the decree in satisfaction of which that sale took place. The decree was passed in 1907 before the mortgage in suit was made. The findings of the Court below on the other points raised in the suit are not challenged here. The appeal is, therefore, allowed and the claim of the plaintiff decreed with costs and future interest at the stipulated rate from the date of the suit till six months from this date and thereafter at 6 per cent, per annum. The decree will be framed in terms of Order 34, Rule 4 of the Code of Civil Procedure and six months time will be allowed for payment. The decree will not affect the property purchased by Zamir-ul-Hasan Khan under the sale-deed executed by Abdul Hamid Khan in his favour on the 2nd April, 1921. Defendant No. 6 will get his costs here and hitherto from the plaintiff. The other defendants will bear their own costs throughout. Costs in this Court in either case will include fees on the higher scale.


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