PARAS RAM Vs. MTMEWA KUNWAR

JUDGEMENT

(1.) First Appeals Nos. 34 of 1928, 7 of 1926 and 20 of 1927 have by consent been connected in this Court, although they arise out of three different and independent suits. First Appeal No. 34 is an appeal by the plaintiffs in a suit brought on the basis of a mortgage deed dated 25 March 1909 executed by Durga Prasad for himself and as guardian of his minor nephew Kewal Kishen in favour of two sets of mortgagees. The present plaintiffs represent the mortgagees who had a three-fourths interest in the mortgage money. The other mortgagees had a one-fourth interest. The amount of mortgage money was Rs. 28,000 and carried interest at 11-annas per cent per mensem compoundable every six months. The share of the present plaintiffs in the mortgage money came to Rs. 21,000, and together with interest they claimed nearly Rs. 83,000 in March 1926. The main defence was raised on behalf of Mt. Champa Kunwar, the widow of Debi Prasad, who was a brother of Durga Prasad, and was to the effect that Debi Prasad had died separate and that his interest in the family property had devolved on his widow as a Hindu widow's estate and could not have been mortgaged by Durga Prasad. The position taken up by the plaintiffs was that the family had remained joint, and on the death of Debi Prasad, his interest survived to the other members of the family, who were competent to mortgage the entire estate. Although in the plaint there was no reference to any deed executed by Mt. Champa Kunwar surrendering her rights in favour of Durga Prasad, a registered document dated 6 July 1908 was relied upon during the course of the evidence as showing both that the family was joint and that even if Mt. Champa Kunwar had any interest she had relinquished the same in favour of Durga Prasad before the execution of the mortgage.

(2.) The learned Subordinate Judge has come to the conclusion that the deed in question does not prevent Mt. Champa Kunwar from asserting that the family was in fact separate, and he has further found that it was established that there had been a partition in the family, with the result that Mt. Champa Kunwar's share had remained exempted from the mortgage. There are a few other minor points including that of limitation which have been decided against the plaintiffs.

(3.) The original deed of relinquishment executed by Mt. Champa Kunwar is not forthcoming, but the plaintiffs who are strangers to Durga Prasad's family cannot be held responsible for this. As it had been entered in register No. 4, even a certified copy of it was not available to the plaintiffs. They, however, got the original register summoned from the registration office and also got the thumb impression of Mt. Champa Kunwar on a book of thumb impressions separately kept by the office identified by an expert. They also led evidence to prove the execution of the original document by the lady. The learned Subordinate Judge on this evidence was satisfied that she had executed the deed of relinquishment dated 6 July 1908 and we accept that finding.