SHIVRAMSA BENAKOSA MERWADE Vs. GURUNATHSA BHAVANSA KABADI

JUDGEMENT

(1.) THIS appeal arises from a suit to enforce a mortgage. The facts leading up to the suit may be shortly stated.

(2.) THE mortgaged property, which is house property, is more particularly described in para. 2 of the plaint. This property originally belonged to the family of defendants Nos. 1 to 7 and of which one Putosa was an ancestor. He died, in or about the year 1934. The family had an ancestral grocery shop which was in the name of Putosa. In 1934 Benakosa, the father of defendants Nos. 1 and 2, started a cotton dalali business in the name of defendant No. 7 who was then a minor. On January 30, 1936, a simple mortgage was executed in order to secure a sum of Rs. 8,000, the security for that amount being the house property in suit and some seven mortgage deeds which the family held as a mortgagee. The mortgage was executed by Benakosa for himself and as guardian of defendants Nos. 1 and 2, by Devansa for himself and as guardian of his brothers, defendants Nos. 4, 5 and 6, and by Benakosa as guardian of defendant No. 7. The amount secured was a sum of Rs. 8,000 consisting of four items: (1) Rs. 2,600 due to mortgagee Nagosa, (2) Rs. 1,542 in respect of a promissory note executed in favour of Nagosa, by Benakosa, (3) Rs. 2,000 which was a sum borrowed for the purpose of the Dalali shop and (4) Rs. 1,858 received before theSub -Registrar for payment of sundry debts.

(3.) THE plaintiffs' case, as set out in the plaint was as follows. After referring to the particulars of the mortgage, the plaintiffs went on to state in para. 3 as follows: Benakosa died a few days subsequent to the execution of the mortgage deed when he was joint with the defendants. At the time of the execution of the simple mortgage deed and at the time of the incurring of the debts mentioned therein he and all the present defendants were living jointly. Benakosa was the manager of the said undivided family. There were shops belonging to the joint family of theirs, that is, there were grocery and commission agency shops in the name of the deceased Putosa, the father of Benakosa, and in the name of defendant No. 7. The deceased Benakosa had entered into transactions in connection with the said shops for the family as the manager and 'Karta' (head) of the undivided family and had (also) entered into transactions and incurred debts mentioned in the mortgage deed. The debts had been contracted for the proper necessities of the defendants. Thereby the joint family of the deceased Benakosa and the defendants is benefited. There was no other means of paying off the said debts. Therefore, for paying off those debts and for paying off the sundry debts incurred for meeting the expenses of the family necessities the deceased Benakosa and Devansa who was then a major on the day on which the suit mortgage deed was to be executed, took some amount in cash and after properly considering the matter passed the suit mortgage deed which is kept herewith for Rs. 8000 in favour of the deceased Nagosa, for themselves as well, as for the remaining defendants who were then minors.