TRILOK SINGH Vs. DWARKA PRASAD GUPTA

JUDGEMENT

(1.) This appeal is by defendant No. 2 to an action for a declaration that two mortgages created by defendant No. 3 on 3-3-1948 and 24-8-1948 were not binding on the joint family of the plaintiffs and defendant No. 3, and for recovery of possession of the houses given in mortgage and also for mesne profits.

(2.) There was one Ramautar Sah, husband of plaintiff No. 3. He had three sons, (1) Rampratap (defendant No. 3), Dwarika Prasad (plaintiff No. 1) and Bishwanath (Plaintiff No. 2). The properties in suit were acquired by Ramautar, who died on 20-6-1942, leaving him surviving plaintiffs 1 to 3 and defendant No. 3 as his heirs. Plaintiff No. 1 end defendant No. 3 had executed a registered power of attorney in favour of plaintiff No. 2 on 23-12-1942. Thereupon, plaintiff No. 2, on 27-3-1944, redeemed a mortgage created by his father, on 24-5-1941, for Rs. 2,500/- in favour of defendant No. 1. It is said that defendant No. 1, therefore, had transactions with the family and knew the family very well. Thereafter, defendant No. 1, in the name of defendant No. 2, took a usufructuary mortgage from defendant No. 3 on 3-3-1948. it is said that defendant No. 3 was not the karta of the joint family nor was the loan taken for legal necessity, that no benefit accrued to the family thereby, and that, though the mortgage deed was taken in the name of defendant No. 2, defendant No. 2 was merely a benamidar for defendant No. 1. On 24-6-1948, again, defendant No. 3 executed another usufructuary mortgage bond and a simple bond in favour of defendant No. 1 in the name of defendant No. 2. These mortgages were in respect of three houses in the town of Ranchi. The plaintiffs' case is that defendant No. 3 used to drink heavily and was leading a spendthrift life and he was prevailed upon by defendants 1 and 2 to enter into these transactions, although there was no justifying necessity to the family for these transactions. Defendant No. 1 is the maternal uncle of defendant No. 2.

(3.) These two defendants filed separate written statements. According to the defendant No. 1, defendant No. 3 was the karta of the family, that the mortgages were for legal necessity of the family and that defendant No. 2 was not his benamidar. Defendant No. ,2 raised several defences. According to him, plaintiff No, 3 was not the widow, of Ramautar; the death of Ramautar on 20-6-1942 was denied and it was claimed that the mortgages in question had been taken by him and he was not a benamidar for defendant No. 1. He alleged that the mortgages were created for legal necessity and for valuable consideration and that he had made bona fide enquiry about the necessity of the loan and was satisfied from the enquiry that the family was in need of money.