TUNGABAI Vs. YESHWANT DINKAR JOG

JUDGEMENT

(1.) THE question that arises in this appeal is whether a mortgage-deed executed by the appellant on May 17, 1926, whereby she mortgaged to Dinkar Krishna Jog, deceased (hereafter1 called the plaintiff), now represented by respondent No. 1, all her landlord property which had been left to her by way of "stridhan" to secure a loan of Rs. 7,000 is binding upon her. THE Subordinate Judge at Belgaum held that it was not, and his decision on this point was reversed by the High Court of Bombay.

(2.) THE plaintiff was a money-lender doing an extensive business and had made loans to the appellant's husband. THE latter at the time of this mortgage was heavily in debt; he had mortgaged all his own property and, being pressed for money, had nothing to offer by way of security for a further loan other than his already encumbered estate. He approached the plaintiff for a further loan of Rs, 7,000, but the latter was unwilling to lend it either on the security of the husband's encumbered lands or on a promissory note. So the only security which could be offered was the wife's land. THE appellant was married to her husband some years ago at the age of twelve, and is described by the Subordinate Judge as young in years and not very intelligent. She is quite illiterate; unable to read or write, but can sign her name. She has two children living, and her stridhan property, which brings in some Rs. 400 to 500 a year, is all that the family can depend on. Her husband managed the property entirely; she is evidently a submissive wife, and if her husband told her to execute a document, she did so at his bidding and without informing herself of the contents. THE plaintiff, who was an educated and keen businessman, admitted that he told the husband that he must have some letters from the appellant about the transaction, and accordingly four postcards were prepared and written by the husband to which the wife put her signature without knowing what was in them, and it would seem to be obvious that the plaintiff wanted them to strengthen his position should the transaction on which he was about to embark with the husband be called in question. He never saw her during the negotiations that he had with her husband, and according to him the only time he did see her was on the evening before the mortgage was executed, when he said he was in a hurry and that the business, of which it may be said she knew nothing, must be finished the next day. On May 17, in the morning, the husband told the appellant to come with him to Chikodi. He told her that a lease was to be registered. THEy went to the house of one Raghavendra, who afterwards witnessed the mortgage, and here it was prepared, though not in the wife's presence. THE plaintiff did not appear in the document as the mortgagee; it was taken in the name of one Damodar as benamidar or nominee for him. THEn when the parties went before the Sub-Registrar, the money was produced and passed over by some one whom the plaintiff sent for that purpose. Whether the appellant actually handed the money is in dispute, but it is really immaterial. She never got the Rs. 7,000; some of it was passed back to the plaintiff in discharge of the husband's outstanding debt, some to another creditor, and what balance there was the husband took.

(3.) THE High Court however in this case took a different view to that of the learned Subordinate Judge. It appears to their Lordship that the learned Judges directed their minds much more to the question of whether it had been proved that the plaintiff had been a party to a fraud committed by the husband than to what in their opinion is the true question in the case. It is unnecessary to decide whether there was actual fraud by the husband, it is enough to show that the wife was acting under his influence and not as a free agent. Nor can they agree with the criticisms of the High Court on the Subordinate Judge's findings as to the transaction being one into which a right-minded person would enter and as to its improvidence. It seems to have been assumed by the High Court that the husband required a loan to enable him to do business with some salt pans that he had taken from the Government. THE evidence does not in fact anywhere support this suggestion; it seems much more probable that he required the money to stave off pressing demands. Considering that he was at the end of his resources and that the income from the wife's property was all there was to support the family, it was a most improvident thing to mortgage their only means of livelihood for the purpose of using at any rate a substantial portion of the money to pay off antecedent debts of the husband, and an action which no right-minded person ought to have entertained. Accordingly their Lordships will humbly advise His Majesty that the appeal should be allowed; that so much of the decree of the High Court as varied the decree of the Subordinate Judge and decreeing the plaintiff's suit as against defendant No. 1 and ordering her to pay the plaintiff the decretal amount with costs and interest be set aside and the decree of the Subordinate Judge on this matter be restored. THE appellant should have her costs in the High Court, and such costs of this appeal as she is entitled to having regard to the fact that she has been given leave to appeal in forma pauperis.