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Tulsi Mahato and ors. Vs. Chethree Lal Roy and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in16Ind.Cas.379
AppellantTulsi Mahato and ors.
RespondentChethree Lal Roy and ors.
Cases ReferredChakouri Mahton v. Ganga Proshad
Excerpt:
attestation - mortgage-band--execution, proof of--one witness, proof by--evidence act (i of 1872), section 68--transjer of property act (iv of 1882), section 59--hindu law--mitakshara--debt incurred by father for litigation--immoral or illegal debt--son's liability to pay. - .....with interest and costs the claim was resisted not by the executants of the bond but by six grandsons of the first defendant who had been made defendants as interested in the equity of redemption. they put the plaintiffs to the proof of the mortgage, and appear to have suggested that the debt, if any, was incurred under circumstances which did not make it binding upon them as grandsons of the first defendant and sons of the other three defendants. they finally contended that the provision for payment of interest was in the nature of a penalty and consequently unenforceable. the court below has overruled these objections and made the usual mortgage decree which is attempted to be challenged in this appeal.2. it has been contended, in the first place, that the bond has not been duly.....
Judgment:

1. This is an appeal on be-half of the defendants in a suit to enforce a mortgage security. The mortgage was executed on-the 23rd July 1897 by the first defendant and his four sons one of whom was an infant at the time. The sum secured Rs. 4,775, was re-payable on the 6th February 1898, and carried interest at the rate of nine per cent, per annum with annual rests. No payment appears to have been made, and on the 28th January 1910, a few days before the expiry of the period of limitation, the mortgagees commenced this suit to recover the mortgage-money with interest and costs The claim was resisted not by the executants of the bond but by six grandsons of the first defendant who had been made defendants as interested in the equity of redemption. They put the plaintiffs to the proof of the mortgage, and appear to have suggested that the debt, if any, was incurred under circumstances which did not make it binding upon them as grandsons of the first defendant and sons of the other three defendants. They finally contended that the provision for payment of interest Was in the nature of a penalty and consequently unenforceable. The Court below has overruled these objections and made the usual mortgage decree which is attempted to be challenged in this appeal.

2. It has been contended, in the first place, that the bond has not been duly proved. There is no substance in this contention, because one of the attesting witnesses proves the execution, as also attestation by himself and by some of the other attesting witnesses who are dead. It has been faintly suggested that it was necessary to call two attesting witnesses. This plainly is not required by Section 68 of the Indian Evidence Act.

3. It has been argued, in the second place, that the provision for payment of interest is in the nature of a penalty. This objection is wholly groundless. As already stated, the rate of interest is nine per cent, per annum With annual rests. No doubt, the plaintiffs claim as. interest a sum of Rs. 9,269 upon the principal sum of Rs. 4,775. But it must be remembered that more than twelve years had Japsed before the suit was brought, and the sum claimed as interest would have' been due if simple interest had been calculated at 15 per cent, per annum, upon the principal sum. As was pointed out by this Court in the cases of Surya Narain Singh v. Jogendra Narain Roy Chowdhury 20 C. 360 and Prayag Kapri v. Shyam Lal 31 C. 138 the mortgagee is prima facie entitled to interest at the rate mentioned in the contract. The defendants have wholly failed to prove that the bond was taken under circumstances which made the provision as to the payment of interest not enforceable against them.

4. It has been argued finally that the debt was of such a character that no obligation is imposed upon the grandsons of one of the executants and the sons of the other executants, in respect thereof. No attempt, however, was made in the Court below to establish that the debt was either illegal or immoral. The recitals in the bonds indicated that a considerable portion of the debt was incurred with a view to satisfy a mortgage decree in execution whereof the properties covered by the present mortgage were about to be sold. The history of this debt has, not been traced further. The recitals in the instrument also show that, in so far as the other debts mentioned therein are concerned some were incurred for the purposes of a litigation. It cannot be affirmed as an inflexible rule of law that a debt incurred for the purposes of a litigation is either an immoral or illegal debt. Reference has been made in this connection to the decision in Pareman Dass v. Bhattu Mahton 24 C. 672. That, however, was a case of an entirely different description. It was found there that the debt was due on account of a Criminal act committed by the father, and the Court held that the obligation which arose under such circumstances could not be deemed enforceable against the sons or grandsons of the debtor. The authorities on the subject will be found reviewed in the case of Chakouri Mahton v. Ganga Proshad 12 Ind. Cas. 609 : 15 C.L.J. 228 : 16 C.W.N. 519 and the principle deducible from the cases analysed there, indicates that a debt of the description now before us cannot possibly be deemed an illegal or immoral debt.

5. All the objections urged on behalf of the appellants are unsustainable; the appeal is, therefore, dismissed with costs.


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