FIRM RAMLOCHAN RAM LAKSHMI PRASAD Vs. MAIKHA SETHANI

JUDGEMENT

(1.) This appeal, by the defendants, is from the judgment of the learned Additional Subordinate Judge, then stationed at Daltonganj, decreeing the plaintiff's suit for recovery of money based or, a hathchitha (Ext. 2) executed by one Motilal, on behalf and as Mukhtarkhas of defendant 2, appointed by her under Ext. 1.

(2.) Mr. Kailasb Roy, who appeared for the appellants, has attacked the findings of the trial Judge on several grounds, The points, which emerge from his argument, may be summarised as below : 1. That there was no necessity, no negotiation and no advance, and, therefore, Ext. 2, the hathchitha as well as Ext. 1, the special power of attorney, are both forged and the present suit has been falsely instituted at the instance of P.W. 7; 2. That the loan, even if advanced on the basis of Ext. 1 under Ext. 2 was illegal and, not binding on the defendants, because (a) It was borrowed on behalf of defendant 2, the certificated guardian of her then minor sons, defendants 3 and 4, without the sanction of the Court, which appointed her; (b) Ext. 2 was executed not by defendant 2 herself, but on her behalf and as her Mokhtarkhas, by Motilal, but defendant 2 could not legally delegate her power of borrow, as a certificated guardian, even to any Mokhtarkhas; (c) There was no enquiry, nor any legal necessity for the loans borrowed under Ext. 2 so as to bind defendants 3 to 5, the sons of defendant 2;

(3.) No decree, even if any, can be passed against defendants 3 to 5 so as to make them personally liable, and, as such, it should be confined only to the assets, if any of defendant 1 in the hands of defendants 3 to 5. 3. Two other arguments, which arise out of the reply of Mr. Ramanugrah Prasad, who appeared for the plaintiff-respondent, are : 4. That the appointment of defendant 2 as a certificated guardian of defendants 3 and 4 was illegal, and, 5. That the appointment of defendant 2 as a certificated guardian of defendants 3 and 4 was illegal; and, 6. That, even if the answer to the above question be in the affirmative, defendants 3 to 5, the sons of defendant 2, were liable under the Hindu law for the loans under Ext. 2.