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Kamta Parshad Singh Vs. Sidh NaraIn Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Judge
Reported in14Ind.Cas.251
AppellantKamta Parshad Singh
RespondentSidh NaraIn Singh and ors.
Excerpt:
hindu law - alienation--consent of co-parcener--presumption. - .....in the suit is the son of sheo shankar singh. one of the defendants in the suit is the appellant kamta parshad singh, who was a son of sital singh. kamta parshad singh's defence was that the mortgages were not made for consideration and that they were not made either for lawful necessity or to discharge any antecedent debt. there was also a question as to the amount of interest to be allowed. the court fixed three issues: (1) whether sital singh executed the deeds for consideration; (2) whether the debts were incurred for family necessity, and (3) what amount of interest should be allowed. on the first issue, the subordinate judge found that the mortgages were made for the consideration stated in them. on the second he uses language which suggests that he was of opinion that the.....
Judgment:

1. This appeal arises out of a suit brought by the respondent, Sidh Narain Singh, for the recovery of Rs. 8,373-0-0 on the basis of two mortgages made on April 9th, 1863, and March 25th, 1861, by one Sital Singh in favour of Sheo Shanker Singh. The plaintiff in the suit is the son of Sheo Shankar Singh. One of the defendants in the suit is the appellant Kamta Parshad Singh, who was a son of Sital Singh. Kamta Parshad Singh's defence was that the mortgages were not made for consideration and that they were not made either for lawful necessity or to discharge any antecedent debt. There was also a question as to the amount of interest to be allowed. The Court fixed three issues: (1) Whether Sital Singh executed the deeds for consideration; (2) Whether the debts were incurred for family necessity, and (3) what amount of interest should be allowed. On the first issue, the Subordinate Judge found that the mortgages were made for the consideration stated in them. On the second he uses language which suggests that he was of opinion that the mortgages were made partly to pay off antecedent debts and partly for family necessity. But he recorded no definite finding on this point because the evidence showed that the defendant Kamta Parshad Singh was not alive when the mortgages were made and he was of opinion that Kamta Parshad Singh was C3n-sequently not entitled to challenge the mortgages. When, the appeal came before us in November, last we thought that the appellant had been taken by surprise on the question of the age of Kamta Parshad Singh and we called for a fresh finding on the question whether Kamta Parshad Singh was alive at the date of the transactions in question. The Subordinate Judge has submitted a finding to the effect that he was not alive when the mortgages were made. The appellant concedes that he cannot challenge this finding; but he contends that he is entitled to challenge the validity of the mortgages because there was living at the time of the mortgages a co-parcener of the mortgagor in the person of his son, Sheo Mangal, and that Sheo Mangal did not consent to the mortgages. The appellant also contends that it is not proved that the mortgages were made to discharge antecedent debts or for family necessity. The evidence shows that Sheo Mangal, a son of Sital Singh, was alive at the date of the two mortgages. The question whether he assented to the mortgages or not was not raised in the Court below and there is no evidence on the point one way or the other. No member of the family up to the day on which the written statement was filed in this case ever challenged either of the mortgages. According to the decision of this Court in Chuttan Lal v. Kallu 8 A.L.J. 15 : 33 A. 283 : 8 Ind. Cas. 719, we are at liberty to presume, in the circumstances, that Sheo Mangal consented to the mortgages. Apart from that, we consider that the evidence adduced by the plaintiff-respondent to prove that the motgages were made partly to pay off antecedent [debts and partly for family necessity was sufficient to call for an answer from the appellant. In the first of the two mortgages, it is stated that the money was borrowed to discharge a debt due to one Lachhmi Narayan. The sum secured by the second deed is said to have been taken to defray the expenses for the marriage of the two daughters of the mortgagor. Two witnesses deposed that the mortgagor stated to them that he had used the money for the purposes stated in the deeds, and there is some evidence that one Lachhmi Narayan was in possession of a part at least of the property covered by the mortgages and that he ceased to hold possession of that land in or about the year 1863. This fact supports the recital in the earlier of the two deeds. Considering the time which has elapsed, we think that the evidence produced by the plaintiff was sufficient to discharge the burden of proof that lay on him and to call for an answer from the appellant. No answer was forthcoming. We accept the decision of the Court below and dismiss this appeal with costs including in this Court fees on the higher scale.


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