RAM NAYAK Vs. MT RUP KALI AND ORS

JUDGEMENT

(1.) This is a defendant s appeal arising out of a suit for recovery of possession of a half-share in the estate left by the plaintiffs father, Ram Ratan. The plea that the plaintiff is not the daughter of Ram Ratan has been disposed of by us in the connected appeal. The appellant was a mortgages from the Hindu widow, Mt. Ram Kali, under a deed dated 17th June 1915. He pleaded that he was a bona fide transferee for value and was protected under Section 41, T.P. Act. The plea of legal necessity was taken by him only by implication, but the other contesting defendants raised the question in an express form and an express issue was framed by the Court below at the trial on this question of legal necessity. The finding however is against mortgagee appellant.

(2.) The mortgage-deed of 1915 was for Rs. 1,600. It was recited therein that Mt. Ram Kali had stood in need of money for payment of rent to the zamindar and for construction of a house and that Ra. 1,300 were required in order to pay off a previous possessory mortgage-deed in favour of Sheo Chal Singh. She also took Rs. 100 for execution and completion of the document and for household expenses and received the sum of Rs. 200 which was stated to be required for payment of rent and the construction of a house. The earlier mortgage-deed in favour of Sheo Chal Singh was of the date 23rd June 1910 and was for a sum of Rs. 1,300. The amount was borrowed in order to pay off Rs. 1,098 to one Sobh Nath a previous creditor and another sum of Rs. 152 was required for payment to other creditors and a sum of Rs. 50 was taken for the expenses of the document. The document in favour of Sobh Nath has been lost and no attempt was made to produce a certified copy of the deed in case it was registered. But the oral evidence goes to show that that document in its turn was executed in order to pay off a debt due to Ram Naresh Ghaudhri under a document dated 19th June 1894. This document in its turn recited three sums of money had been required for payment to three previous creditors and a sum of Rs. 58 for expenses.

(3.) The mortgagee gave evidence to the affect that so far as the sum of Rs. 250 was concerned it was required by the lady for reconstructing her house. It appears that the house had fallen down owing to floods and it had to be reconstructed. He further stated that there were previous creditors, namely, Sobh Nath and Ram Naresh Chaudhri. He however did not have any personal knowledge of the purposes for which Ram Kali had borrowed the sums from these creditors and was not able to give any details. It is on this evidence that the learned Subordinate Judge has held that legal necessity has not been established. As regards the construction of the house his finding is in the following terms: