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Ram Chandra Bahardar Vs. Abeda Khatun Sahebani and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in53Ind.Cas.562
AppellantRam Chandra Bahardar
RespondentAbeda Khatun Sahebani and ors.
Excerpt:
appeal - mortgage suit--mortgage executed by husband under power-of-attorney from wife--power-of-attorney not proved--remand, whether can be ordered. - 1. this is a suit on a mortgage executed by defendants nos. 1,2 and 4. the property mortgaged belongs to defendant no. 3. defendant no. 1 is the son of defendant no. 3. defendant no. 2 is her husband's brother. both the couris have held that defendant no. 3 never executed the document. it is not alleged by the plaintiff that she personally executed the mortgage deed, but he said that the document was executed by defendant no. 4, the husband of the lady, unier a power of-attorney from her. the power -of-attorney was not produced. it was pressed upon the appellate court that a remand ought to be granted to give the plaintiff an opportunity to produce and prove it. but having regard to the delay that had taken place in connection with that matter, the appellate court did not think fit to.....
Judgment:

1. This is a suit on a mortgage executed by defendants Nos. 1,2 and 4. The property mortgaged belongs to defendant No. 3. Defendant No. 1 is the son of defendant No. 3. Defendant No. 2 is her husband's brother. Both the couris have held that defendant No. 3 never executed the document. It is not alleged by the plaintiff that she personally executed the mortgage deed, but he said that the document was executed by defendant No. 4, the husband of the lady, unier a power of-attorney from her. The power -of-attorney was not produced. It was pressed upon the Appellate Court that a remand ought to be granted to give the plaintiff an opportunity to produce and prove it. But having regard to the delay that had taken place in connection with that matter, the Appellate Court did not think fit to grant a remand. That point has again been urged before us. We do not think that we can accede to that prayer. The plaintiff did not take any Steps to have the Sub Registrar examined in respect of that power-of attorney, nor has be attempted to give secondary evidence as to what that power contained. We do not think that at this stage we can accede to a prayer of this nature. The next question argued is this, that it has been held by the Appellate Court that the suit is barred by limitation so far as defendants Nos. 1 and 2 are concerned. The money was admittedly taken by them and it is said that fraud having been committed on the plaintiff, he is en*titled to the benefit of Section 18 of the Limitation Act. That overlooks this fact, ( that the claim against these two persons was of a personal nature. The property ; which was mortgaged belonged to defend- ant No. 3 and the plaintiff knew that his rights were as against these two persons, he knew at the time the mortgage was executed. He now says that fraud was committed upon him inasmuch as they conspired with defendant No. 4 in persuading him to believe that defendant No. 3 had really authorized the mortgage of this property. It appears that defendant No. 1 in his written statement said that defendant No. 3's property was included in the bond without her knowledge and consent simply at the request of the plaintiff, and through fair of the plaintiff it was done and to please him and that it was at the wrongful request of the plaintiff, defendant No. 2 included defendant No. 3's property in the deed. It was open to the plaintiff to go into that question at the trial as to whether any fraud had been practised upon him and to amend his plaint. There is no fraud shown by which the knowledge of his right to proceed against defendants Nos. 1 and 2 was kept back from him, We, therefore, think that there is nothing in that contention.

The appeal fails and is dismissed with costs,


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