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Rajani Kanta Chattopadhya Vs. Abinash Chandra Rai and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in2Ind.Cas.366
AppellantRajani Kanta Chattopadhya
RespondentAbinash Chandra Rai and anr.
Cases ReferredHunooman Persaud Pandey v. Musammat Babooee Mundraj Koonwaree
Excerpt:
mortgagee - minor--guardian--legal necessity--enquiry--application of money. - .....the parties was whether the mother of the minor defendant borrowed rs. 100 from the plaintiff for legal necessity and executed the mortgage bond in suit. the court of first instance found upon the question of the factum of the loan that there was no possible doubt. upon the question of legal necessity that court also found that there was legal necessity and that the plaintiff had made bona fide enquiry at the time which entitled him to protection. in this view the munsif gave the plaintiff a decree. upon appeal the subordinate judge has disposed of the case and reversed the decision of the court of first instance in a very summary and unsatisfactory judgment. he states that one of the points for decision is whether the mother and guardian of the minor defendant executed the bond for.....
Judgment:

Mookerjee, J.

1. This is an appeal on behalf of the plaintiff in an action to enforce a, mortgage security executed in his favour on the 6th January 1903 by the mother and guardian of the first defendant. The second defendant has been joined as a purchaser of the mortgaged properties at an execution sale held on the 11th June 1906. The question in controversy between the parties was whether the mother of the minor defendant borrowed Rs. 100 from the plaintiff for legal necessity and executed the mortgage bond in suit. The Court of first instance found upon the question of the factum of the loan that there was no possible doubt. Upon the question of legal necessity that Court also found that there was legal necessity and that the plaintiff had made bona fide enquiry at the time which entitled him to protection. In this view the Munsif gave the plaintiff a decree. Upon appeal the Subordinate Judge has disposed of the case and reversed the decision of the Court of first instance in a very summary and unsatisfactory judgment. He states that one of the points for decision is whether the mother and guardian of the minor defendant executed the bond for legal necessity. He then discusses that question in the following terms: 'There is no satisfactory evidence that the widow paid off any debt of her husband; cost of maintaining the minor is a vague term which cannot prove legal necessity.' This judgment presents a strange contrast to the careful decision of the Munsif who examined the facts and circumstances minutely and gave reasons in support of his conclusions. The learned pleader for the respondents has not seriously contested that this judgment is unsatisfactory. In my opinion it cannot be supported. The result, therefore, is that this appeal must be allowed, the decision of the Subordinate Judge set aside and the case remanded to him in order that he may consider whether the mother and guardian of the minor defendant executed the mortgage-bond for a legal necessity. In re-considering the case he will bear in mind the principle laid down by their Lordships of the Judicial Committee in Hunooman Persaud Pandey v. Musammat Babooee Mundraj Koonwaree 6 M.I.A. 393 : 18 W.R. 81. As pointed out in that case it is necessary for the mortgagee to prove that there was legal necessity which he can show by proof of actual pressure on the estate, of danger to be averted or of the benefit to be conferred upon it by the loan. But as was pointed out by their Lordships the lender is bound to enquire into the necessities of the loan, and to satisfy himself as well as he can, with reference to the parties with whom he is dealing that the manager is acting in the particular instance for the benefit of the estate. If he does so and acts honestly, the real existence of an alleged sufficient and reasonably credited necessity is not a condition precedent to the validity of his charge and he is not under any circumstances bound to see to the application of the money. If the Subordinate Judge finds that there was legal necessity or that the mortgagee bona fide enquired into the circumstances of the family and was reasonably satisfied that there was necessity, the plaintiff will be entitled to a decree. Otherwise the mortgage as against defendant No. 2 must be treated as inoperative. The costs of this appeal will abide the result.


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