KUBERDAS DEVCHAND SONI Vs. JERKISH NAOROJI

JUDGEMENT

(1.) THIS appeal arises out of a suit upon a mortgage. In 1925 one Navroji Pestonji died leaving three children and a widow, by name Tehemina. In November, 1927, Tehemina was given letters of administration to his estate, and in 1929, purporting to act for herself and as guardian of her minor son, she mortgaged certain property to her brother Temulji for Rs. 4,000. In March, 1931, she executed in favour of the plaintiff the mortgage in suit, this time purporting to act for herself and her three minor children. The purpose of the mortgage was said to be the need to pay off the mortgage to her brother, and indeed the old mortgage was endorsed as satisfied on the day of the execution of the new mortgage. In 1934 she died, and another of her brothers, by name Bejanji, became guardian of her minor children. In 1936 the plaintiff brought the present suit. He alleged in his plaint that after Tehemina had taken out letters of administration and obtained property thereunder, including the two houses mortgaged, she mortgaged the houses to her brother for paying the assessment due on certain land, in other words for legal necessity and for the benefit of the estate, and that thereafter for herself and as guardian of her minor son she executed the second mortgage in favour of the plaintiff for the purpose of paying off the old mortgage, in other words for legal necessity and for the benefit of the estate. The written statement denied that there was any assessment due upon the property mentioned, and it also denied that Rs. 4,000 was borrowed from Temulji for paying the assessment; and the plaintiff was put to the proof of these things. Legal necessity was denied, and the authority of Tehemina to create a burden on the property of the minors was denied also, whether by the mortgage to Temulji or by the mortgage to the plaintiff. The trial Court found that the mortgage in suit was proved, but that it was not binding on the defendants except in so far as Tehemina's one-fourth share in the estate had come to them. It was held that the mortgage was not executed by Tehemina in her capacity of administratrix of the estate of her husband, and that it therefore could not bind the estate unless it were proved to have been passed for legal necessity; and on that question it was held as a, fact that no legal necessity was proved. The plaintiff has accordingly come in appeal.

(2.) THE first point argued by his learned counsel is that the trial Court was wrong in holding that the mortgage was not passed by Tehemina in her capacity of administratrix; and it is argued that once it is held that on a true construction of the deed she did act as administratrix of the estate, then by reason of Sections 211 and 307 of the Indian Succession Act, 1925, the estate would be bound by the mortgage. It is true that she was in fact an administratrix of the estate and had been given letters of administration; and the mortgage mentions that fact. But it seems to mention it only by way of explaining how possession of the property had come to the mortgagor and how from the mortgagor it went into the possession of her brother Temulji. But it is impossible on reading the mortgage by itself to read into it any indication that it was an administratrix as such who was mortgaging the property. It quite clearly says that she mortgaged for herself and as guardian of her minor children; and in the earlier mortgage (which stands on much the same footing) she said that she mortgaged the property for herself and her minor son. THE mortgage contains a covenant for the repayment of the amount due by all four of them, and that is hardly consistent with a mortgage executed by an administratrix as such. It is true that the plaint does mention that she had obtained letters of administration and in consequence thereof was in possession of the property to be mortgaged; but otherwise it does not suggest in any way that the suit was brought upon the footing that the mortgage was executed by an administratrix, and no amendment to that effect was ever sought. Nor is there any suggestion in the plaint that she had a right under Section 211 of the Indian Succession Act to mortgage the property on the ground that it vested in her as legal representative of her deceased husband, and the case was not tried on those lines at all.

(3.) THE appeal fails and must be dismissed with costs.