BITHALDAS Vs. CHANDRATAN

JUDGEMENT

(1.) THIS is a 1st appeal by the defendants against the judgment and preliminary decree in a suit for the sale of mortgage property passed by the Civil Judge, Bikaner on 9th January 1953. The property of respect of which the decree has been given is a house situated in Mohalla Binaniyan in Bikaner. The parties are also the residents of Bikaner. All the four appellants are brother being sons of one Madan Gopal Maheshwari. Appellants Nos. 1 and 2 are major and the decree against them is ex-perte. Appellants Nos. 3 and 4 are minors. The suit was contested by them in the trial court through their guardianad-litem and the present appeal is also contested mainly by them.

(2.) THE case of the plaintiff-respondent in the trial court was that the property in dispute whose description is given in para one of the plaint,was first mortgaged by appellants Nos, 1 and 2 and their father Madan Gopal as manager of the joint family with one Chhagan Lal Chura for Rs. 3,000/- on 6 3-46 and the mortgage deed was registered on the next day i. e. 7. 3. 46. On the 3rd of March, 1948 Appellants Nos. 1 and 2 and Mst. Ram Pyari mother and guardian of appellants Nos 3 and 4 executed another mortgage deed for Rs. 600 /-in respect of the same property in favour of the plaintiff-respondents and it was registered on the next day i. e. 4th March, 1948. It was stated in this document that Rs 3,000/-for the principal and Rs. 150/- for interest, in all Rs. 3,150/-, were paid to the prior mortgagee, Chhaganlal Chura, to redeem that mortgage and Rs. 2,850/- were borrowed by the appellants for their joint family expenses Thus in all Rs. 6,000/- were borrowed by the appellants with interest at the rate of 9 per cent per annum. THE plaintiff calculated Rs. 2,250/- for interest till the date of the suit. It was prayed by him that a decree for the sale of mortgaged property be passed against the appellants and that if the amount is not realised from the sale of the property,a personal decree be given against the appellants. He also prayed for the interest, pendente lite and future interest, at the rate of 9 per cent per annum. Appellants Nos. 1 and 2 did not present any written statement and therefore the suit proceeded against them ex-parte as mentioned above. As regards appellants Nos. 3 and 4, it was contended on their behalf that they had no knowledge of the transactions and they were not bound by them since neither Mst. Ram Pyari nor anybody else had any authority to alienate their right and interest in the property. THE trial court therefore framed the following three issues : (1) Whether defendants Nos. 1 and 2 and Mst. Ram Pyari were authorised to mortgage to house in dispute; whether they had executed the mortgage in the plaintiff's favour and whether it was with consideration? (2) Whether the minor defendants are responsible and if so to what extent ? (3) What relief the plaintiff is entitled to ?

(3.) LEARNED counsel for the respondent has also referred to some others cases of other High Courts and therefore it would be proper to deal with them as well. The first case is Ambalavana Pillai vs. Gwrl Ammal (6 ). In that case if was held that "where a guardian of a minor mortgages minor's property to pay debts due by minor's deceased father, once, the proper application of a substantial portion of the consideration has been proved, the Court might, in the absence of circumstances creating suspicion, presume that the small balance is also likely to have been required and applied for propers purposes. There is no reason for drawing distinction between a sale and a mortgage. Moreover the circumstances of necessity are shown, a bona fide lender is not bound to see to the actual application of the money lent. " It may be pointed cut that the question which has arisen in the present case before us did not come for consideration in the above case. It dealt with different questions of law and therefore it has little bearing on the present case.