KEDAR GAIN Vs. RAMONI DASSI

JUDGEMENT

(1.) This is an appeal on behalf of the third defendant in a suit for recovery of possession of immovable property which admittedly belonged at one time to Madan Sundar, the father of the plaintiff-respondent. Madan died many years ago leaving him surviving his widow Surjamoni and two daughters, Sonamoni and Ramoni. After the death of Surjamoni the estate of Madan came into the possession of his two daughters On the 26 August 1895, Sonamoni executed a usufructuary mortgage of the entire property in favour of the present appellant. The result was that the mortgagee got into possession and dispossessed Ramoni. Ramoni forthwith sued the mortgagee, as also her sister, for declaration of her title to a half share of the property and for recovery of joint possession. A decree was made in her favour which entitled her in express terms to recover joint possession of the property. Sonamoni died in 1901 and left a son the second defendant before us. On the 20 June 1906, Ramoni commenced this action for declaration of her title to the property and for recovery of exclusive possession thereof. The mortgagee defendant resisted the claim substantially on the ground that the mortgage in his favour had been executed by Sonamoni for legal necessity, and was aonsequently binding on Ramoni as the reversionary heir. He further contended that the plaintiff was not entitled to claim the half share of her sister Sonamoni, inasmuch as at the time of the death of the latter, she herself had become a childless widow and so could not succeed as heir. The Courts below have concurrently overruled this objection, and made a decree in favour of the plaintiff.

(2.) The mortgagee has now appealed to this Court and on his behalf the decision of the Subordinate Judge has been assailed on two grounds, namely, first, that the finding of the Court below upon the question of legal necessity is not sufficient to dispose of the case, and, secondly, that in view of the decision in the suit of Ramoni commenced by her in 1895 against her sister and the mortgagee from her, she was not entitled to take by survivorship any interest in the estate of Madan which upon his death has passed to Sonamoni and her son. In our opinion, there is no substance in either of these contentions.

(3.) In so far as the first point is concerned, it is not necessary to examine it at any length. The Courts below have found that there was no satisfactory and reliable evidence to show that Madan had any debt in liquidation of which the mortgage bond in favour of the appellant had been executed. Indeed, there is ample evidence to show that Madan was a man of substance and was indebted to no one. There is also nothing to show that at the time when Sonamoni executed the usufructuary mortgage in 1895, she was placed in such embarrassed circumstances as would justify an alienation by her. On the other hand, it is fairly clear from all the surrounding circumstances that the mortgage of 1895 must have been executed by Sonamoni with a view to oust her sister. The first contention of the appellant must, therefore, be overruled.