KUBRA Vs. AJODHIA PRASAD

JUDGEMENT

(1.) This appeal arises out of a suit brought for recovery of the amounts alleged to be duo on foot of three mortgages by sale of the mortgaged property. The mortgages are dated respectively the 22nd and 28 of March, 1905, and the 29th of June of the same year. The first mentioned mortgage was executed by Musammat Kubra, the defendant-appellant, and one Diwan Shah. The other two mortgages were executed by Diwan Shah purporting to act on his own behalf and under a power-of-attorney from Musammat Kubra. Musammat Kubra is the wife of one Hamid Husain. She became infatuated with the defendant Diwan Shah, a Persian adventurer, who made his appearance in Saharanpur. She left her husband's protection and went and lived with Diwan Shah. The husband took proceedings for restitution of conjugal rights and obtained a decree on the 19 of December, 1904, and on the 27 of March, 1905, Musammat Kubra was arrested and imprisoned for disobedience of the order of the Court to return to her husband. During the time that she carried on the intrigue with Diwan Shah, she made a gift of some of her property to him, namely, on the 8 of January, 1904, and on the 9 of October, 1905, she also executed a deed of gift of all her property in his. favour. This man appears to have got complete control over her and to have induced her, not merely to leave her husband but to hand over to him all the property of which she was possessed. In the written statement filed by her in answer to the claim brought on foot of the three mortgages in question, she alleged that fraud was practised upon her by Diwan Shah. She stated that she did not understand the nature or contents of the power-of-attorney under which he professed to execute the two last mentioned deeds of mortgage. She also alfeged that no part of the consideration of these mortgages was paid to her or applied for her benefit.

(2.) We shall first deal with the mortgage of the 28 of March, 1905. This mortgage was executed while Musammat Kubra was in jail. She was imprisoned on the 27 of March; and on that date the power-of-attorney, which is relied upon on behalf of the plaintiff, is said to have been executed, and on the 28 of March the mortgage in question. This mortgage secures a principal sum of Rs. 2,500 and purports to be not a mortgage by Musammat Kubra but a mortgage by Diwan Shah of properly which he acquired from Musammat Kubra. No doubt, he describes himself in the mortgage as acting not merely as principal in the transaction but also as general attorney of Musammat Kubra; but in the body of the document he purports to hypothecate the property mentioned in the schedule to it, which he says is owned and possessed by him, without the participation of any one else. The details of the consideration are stated as follows, namely, credit allowed to the mortgagee for Rs. 300 on account of interest on the loan for one year, and cash received at the time of registration, namely, Rs. 2,200, with which to furnish security and to defray other expenses. The explanation of the furnishing of security is this: Musammat Kubra was in jail, and in order to obtain her release it was requisite that some person should go security for her in the sum of Rs. 2,000. Diwan Shah came forward as security. He mortgaged the property in question, and lodged in Court Rs. 2,000. Subsequently when there was no longer occasion to retain the deposit he applied to the Court for re-payment of this amount and obtained re-payment of it. It is evident from this that the amount of this loan was not obtained for the benefit of Musammat Kubra, except in so far as it enables Diwan Shall to become security for her. The money obtained on the security was received and retained by Diwan Shah and Musammat Kubra got no benefit from it.

(3.) The other mortgage of the 29 of June, 1905, is for a sum of Rs. 300. In. that document also Diwan Shah purports to act in his own right and as general attorney of Musammat Kubra whom he falsely describes as his wife. In it he also purparts to hypothecate his own property which it is stated he derived under a sale-deed executed by Musammat Kubra on the 8 of January, 1904. In the detail given in the document of the expenditure of the amount received, Rs. 72 appears to have been obtained to meet private expenses and the balance for the purpose of filing appeals in the High Court at Allahabad and in the Judge's Court at Saharanpur on behalf of Musammat Kubra and to meet other private expenses. This document was registered on the admission of Diwan Shah alone.