SUNDERLAL Vs. SHRIKRISHNADAS

JUDGEMENT

(1.) This appeal arises out of a suit for enforcement of a mortgage dated 25 -9 -1944. The mortgage was executed in favour of plaintiff's father Lachhumal by Mahadeo Prasad, defendant No 1 and Sambobai, the widow of Mahadeo Prasad's cousin Munnalal both for her self and in her capacity as guardian of her minor son Sundarlal. The mortgage was anomalous and was intended to secure a sum of Rs. 14,000. Interest was agreed at Annas 7 per month. The mortgage was usufructuary but there was a personal covenant to pay within two years, On failure of payment as agreed the mortgagee had a right of sale. This mortgage was stated to have been executed by the mortgagors in order to pay two prior mortgages, first, dated 2 -10 -1935 for Rs.4,000 executed by Mahadeo Prasad and Munnalal in favour of Munsilal and his son Motilal. second, dated 9 -3 -1942 for Rs.6,000 executed by the defendants in favour of the same party. Besides the amount payable in respect of these two mortgages the mortgagors also required money for the maintenance of the joint family as also their joint family firm named Mahadeo Prasad Munnalal'. The defendants failed to pay the mortgage amount as agreed. Lachhumal the original mortgagee died on 1st of October 1949. The present suit is filed by his heirs on 28th May 1951 claiming Rs.14,000 as principal and Rs. 2,854 -10 -3 as interest in arrears. The total claim was for Rs.16,854 -10 -3.

(2.) DEFENDANT No. 2 Sundarlal and his mother defendant No. 3 contested the suit Mahadeo Prasad filed a separate written statement. Contentions raised by Mahadeo Prasad are no longer in dispute in this appeal and consequently it is not necessary to refer to them. Material contentions which survived in the present appeal are as to the binding character of the mortgage executed' by Mahadeo Prasad and Samboba, as against minor Sundarlal. It was contended that the mortgage in suit dated 25th September 1944 was not for the benefit of the minor or his estate.

(3.) THE trial Court on consideration of these two issues and on the basis of evidence adduced by the parties came to the conclusion that prior 'mortgages dated 2 -10 -1935 and 9 -3 -1942 had been executed by defendant No. 1 and Munnala for payment of prior debt of the mortgagees Munsilal and his son and for running the business of the family. It therefore held that the mortgage in suit binds the minor and his estate to the extent of Rs.10,300, which related to those mortgages. As regards the balance of Rs. 3, 00, it held that the plaintiffs had fared to make out the binding character of the mortgage to this extent in as much as it had not been established that it had been incurred by Mahadeo Prasad and Sambobai for any purpose in involving legal necessity. The trial Court passed a preliminary decree for sale of the mortgage properties as against defendants Mahadeo Prasad and Sambobai to the extent of Rs. 16,390, and as against Sundarlal to the extent of Rs. 12,055 -7 -0. The rest of the claim as against Sundarlal was dismissed. A usual preliminary decree for sale was accordingly passed subject to above mentioned term.