NARAYAN Vs. CHAMBER OF COMMERCE LTD

JUDGEMENT

(1.) THIS appeal emerges out of the judgment of learned Senior Civil Judge, Kishangarh, dated September 8, 1959

(2.) THE Chamber of Commerce Ltd. Madanganj, Kishangarh, filed a suit in the court of Senior Civil Judge, Kishangarh, on November 15, 1956. THEreafter certain amendments were made in the plaint. THE final plaint is dated February 26, 1958. THE averments in the plaint are that one Kishan Gopal deceased mortgaged his house, situated in Mgdanganj, Kishangarh, with the plaintiff. THE details of the property are given in para No. 2 of the plaint. THE property was mortgaged on January 15, 1945, for a sura of Rs 25,000/-, with interest at the rate of annas seven per cent per month. THE same property was again mortgaged with the plaintiff for an additional sum of Rs. 2,000/-, on April 23, 1945, at the above rate of interest. THEreafter Kishan Gopal died. Defendant No. 1 Shri Narayan is the minor son of the deceased. Defendant No. 2. Smt. Kailash Kanwar is his widow. THEy being the heirs and legal representatives of the deceased mortgagor are, according to the plaintiff, liable to make payment of the mortgage amount. Defendant No. 3 was the prior mortgagee of the property. He after having obtained a decree, transferred his right to recover the amount in favour of defendants Nos. 4 and 5. This very property was subsequently mortgaged with defendants Nos. 5, 6, 7, and 9 and, therefore, they have also been made parties to the suit. Kishan Gopal made payment of Rs. 4459/4/9 from time to time towards the interest of the mortgage-amounts upto Mah Badi 2 Smt. year 2004. After the demise of Kishan Gopal, defendants Nos. 1 and 2 also made payments of Rs. 50/-, on February 9, 1951, and Rs. 25/-, on February 5, 1954 on account of interest. Notices were given to the defendants Nos. 1 and 2 to clear off the debts, but that was not done. THE plaintiff, therefore, was constrained to bring the present suit for the recovery of Rs. 27,000/-, as principal and Rs. 12719/12/- on account of interest.

(3.) THE last point pertaining to the ancestral nature of the property and legal necessity deserves some attention. In the written statement filed by the appellants it is, no doubt, given that the suit premises are the ancestral property of the answering defendants and that the deceased Kishan Gopal had no authority to mortgage the same or to take loan on its security without any legal necessity. In the mortgage deed, dated 15-1-1945, it is given by the executant Kishan Gopal that he is the owner and occupant of the mortgaged property. It is further mentioned in the document that the executant and his brother Mishrilal had jointly owned the property and that it had been partitioned between them. In the notice, Ex. 30, dated June 8, 1953, given by the plaintiff to Shri Narayana, it is stated that the deceased Kishan Gopal mortgaged the property of his share, situate in Madanganj, in favour of the Chamber of Commerce. Again, in another notice, dated February 25, 1956, Ex. 33, sent to Shri Narayan, it is referred that the deceased Kishan Gopal mortgaged the property of his share. From the recital of these documents, more specially from the narration of the mortgage-deed Ex. 1 it is manifest that Kishan Gopal was the sole owner and occupant of the property. As has been observed by their Lordships of the Privy Council in Banga Chandra Dhur Biswas vs. Jagat Kishore Acharjya Chowdhuri (9), a recital consistent with the possibility and circumstances of the case cannot be lightly set aside. THE recitals are clear evidence of the representation to the alienee. Thus, in the absence of any evidence led by the defendants, the court can on the basis of recitals reach the conclusion that the property in question was the individual property of the deceased Kishan Gopal. THEre is nothing on the record to show that it was a joint Hindu family property or an ancestral property.