ELIAS SALEH MOHAMED SAIT Vs. KHANMULL

JUDGEMENT

(1.) These arc connected appeals. They arise out of the decree and judgment of the learned District Judge, Civil Station, Bangalore, in O. S. No. 59 of 1949-50.

(2.) Appellants in Regular Appeal No. 154 of 1952-53 are defendants 1 to 7 in the suit, The plaintiff is the appellant in the connected Regular Appeal No. 196 of 1952-53. The suit in question was instituted on the foot of two mortgage deeds dated 12-1-1937 and 14-6-1937, executed by defendants 1 and 2 in conjunction with their deceased brother Ahmed Saleh Mohamed Sait. The principal sum secured, under the first mortgage is Rs. 20,000/-and under the second mortgage is Rs. 24.000/-. A sum of Rs. 51,200/- was claimed with future interest under the first mortgage marked as Exhibit 1 and a further sum of Rs. 60,200/- with future interest was claimed under the second mortgage marked as Exhibit II. The defendants admitted the execution of the suit mortgages but they pleaded that these deeds were executed under fraud, coercion and undue influence. It was further pleaded that the same were not supported by consideration. In the alternative, the defendants prayed for reliefs under the Mysore Money Lenders Act as well as under the Mysore Usurious Loans Act. It was also contended that the defendants 1 and 2 were minors on the dates of the said mortgages. Exhibits I and II. The trial Court has rejected the defence based on fraud, coercion and undue influence. It came to the conclusion that defendants 1 and 2 have not been proved to be minors on the dates of the mortgages, Exhibits I and II, and that the mortgages in question were fully supported by consideration. The Court below held that the mortgagors were entitled to relief under Section 17 of the Mysore Money Lenders Act. But in its opinion it is not permissible to go behind Exhibits I and II and the consideration mentioned in these deeds should be deemed to be the "original loan". Defendants 1 to 7 have challenged the correctness of the decision of the trial Court on the points held against them. But their learned Counsel quite appropriately did not press the pleas of fraud and coercion. He was content to rest his case on the plea of undue influence. The plea of minority of defendants 1 and 2 on the dates of Exhibits I and II was also not urged before us. The true scope of Sections 14 to 17 of the Money Lenders Act and Section 3 of the Mysore Usurious Loans Act was debated before us at length. Before examining these contentions it is necessary to set out briefly the events leading up to the execution of Exhibits I and II.

(3.) Defendants 1 and 2 and their deceased brother (Ahmed Salch Mohamed Sait) are the sons of late Saleh Mohomed Sait. The said late Saleh Mohomed Sait was a Cutchi Memon. He was residing within the limits of the former Civil and Military Station, Bangalore, and he is said to have had an agency business. He was in a fairly prosperous condition. He had a building in the Civil Station Area which fetched him a monthly rent of Rs. 650/-. He died in or about 1917, leaving behind him his widow (Rahamatbai) and his three minor sons (deceased Ahmed Saleh Mohammed Sait and defendants 1 and 2), and three daughters. At the time when the inheritance opened the parties were governed by Hindu Law in the matter of succession and inheritance. From the available evidence, it is clear that Ahmed Saleh Mohomed Sait was born in about 1909; defendant 1 must have been born sometime in 1915 and the second defendant was born a few months after the death of his father. The eldest son became major only in or about 1927. Till then the widow (Rahamatbai) was managing the property. Till about 1930, no debts appear to have been borrowed either by the widow (Rahamatbai) or by the deceased Ahmed Saleh Mohamed Sait. Under Exhibit V dated 20-5-1930 a sum of Rs. 6,000/- was borrowed. The said deed was a simple mortgage executed by the deceased Ahmed Saleh Mohomed Sait and defendants 1 and 2. Defendants 1 and 2 were minors at that time. Their mother (Rahamatbai) represented them as their guardian. Ever since this document, there have been continuous borrowings, in quick succession. Next in order of priority is Exhibit IV a mortgage dated 27-3-31 in favour of the plaintiff, for a sum of Rs. 22,000/-. This was followed by Ex. VI a mortgage with possession in favour of one Krishnalal. He is said to be a benamidar for the plaintiff. But there is hardly any evidence in support of this plea. This was followed by a usufructuary mortgage Ex, III dated 14th July 1933, in favour of the plaintiff. The consideration for this deed is Rs. 50,000/-. This transaction is the subject-matter of R. A. No. 134/53 arising cut of Original Suit No. 19/1943-on the file of the learned District Judge, Civil Station, Bangalore. The merits of this transaction will be considered separately. But ever since Ex. III the deceased brother of defendants 1 and 2 had been borrowing from the plaintiff in quick succession. To some of the transactions Defendants 1 and 2 were also parties. Plaintiff appears to have been their sole creditor ever since Exhibit III. Defendants 1 and 2 were quite young at the time when these loans were borrowed. The recitals in Exhibit 1 show that there was indiscriminate borrowing. It is contended that the deceased Ahmed Saleh Mohomed Sait was a profligate; his mother was illiterate and ignorant; Defendant 2 was a minor during most of the period; Defendant 1 was immature and both defendants 1 and 2 were under the influence of their deceased brother. It is alleged that the plaintiff exploited the irresponsibility of the deceased Ahmed Saleh Mohamed Sait and through him unduly influenced defendants 1 and 2. Most of the transactions are said to be prima facie unfair. From these we are asked to conclude that Exhibits I and II are the outcome of undue influence exercised by the plaintiff directly or through the deceased Ahmed Saleh Mohomed Sait. It will be seen that ever since Exhibit III defendants 1 and 2 or their deceased brother was not in possession of any immovable property. It is not shown that they had any other source of income. It is vaguely suggested that they had an agency business. There is no satisfactory evidence in support of that case. Nor is there any material on record from which we can conclude as to what income, if any, this alleged agency business was yielding to them. It may also be noted that on the dates of Exhibits I and II, the eldest brother (deceased Ahmed Saleh Mohomed Sait) was about 28 years old, the second brother (defendant 1) was 22 years old and the youngest (defendant 2) was 20 years old. To Exhibit II, the widow (Rahamatbai) was also a party. She had managed the property efficiently from 1917 to 1927. Both Ahmed Saleh Mohomed Sait and Rahamatbai died in about (1939). The validity of the transactions under Exhibits I and II remained unchallenged till about 1943. Defendants 1 and 2 sold the suit property to Defendants 6 and 7 on 22-1-1943 as per Ex. "C". It is only after the said sale, the validity of Exhibits I and II came to be challenged. In Exhibit "C" there is no mention of any undue influence having been exercised by the plaintiff. It is recited therein that they (Exhibits I and II) were taken by force and are not supported by consideration. These recitals are obviously false. The relevant allegations in the written statement are vague and lacking in particulars. In the written statement, there is no reference to any undue influence having been exercised on defendants 1 and 2 by the deceased Ahmed Saleh Mohomed Sait. The averments in the written statement are rambling and confused. There is no clear cut case. No issues were raised as regards any undue influence having been exercised by the plaintiff on the deceased Ahmed Saleh Momomed Sait or his (Plaintiff) having exercised any such influence on Defendants 1 and 2 through Ahrned Saleh Mohomed Sait. Under these circumstances, it is not possible to reject the complaint of the plaintiff that the contesting defendants are taking up a new case.