ANIL KUMAR DAS, MINORS REPRESENTED BY SMT BINODINI DASSI Vs. SMTPROBHABATI MITRA W/O BIRINCHI LAL MITRA

JUDGEMENT

(1.) This second appeal arises out of a suit on a mortgage bond. The material facts are as follows : One Akshoy Kumar Das died in the year 1925, leaving him surviving a widow and three sons. The eldest son Satish Chandra Das was the son of a predeceased wife, the other two sons Anil Kumar Das and Sudhir Kumar Das were the children of the widow Binodini Dassi. The property left by Akshoy Kumar Das consisted of a dwelling house in the town of Khulna and a stationery business which was being carried on under the name of Das Brothers and was being managed by the eldest son Satish. On 4 January 1933 the widow Binodini Dassi applied to the District Judge of Khulna to be appointed guardian of the persons and properties of her two minor sons, Anil Kumar and Sudhir Kumar, and on 26 January 1933 an order was passed allowing her application and directing her to furnish security. Security was duly furnished. The security bond was tested by the Nazir and on 11 February 1933 an order was passed by the District Judge accepting the security and directing the drawing up of a formal order of appointment. Three days later, on 14 February 1933, Binodini Dassi applied to the District Judge for sanction to the raising of a loan of Rs. 2000 by mortgaging the undivided 2/3 share of the minors in the dwelling house, the purpose of the loan being to increase the capital of the stationery business. The learned District Judge directed that the application be put up in the presence of the pleader on 16 February and on the latter date, after hearing the pleader of the guardian passed an order that the application would be considered on further security being furnished.

(2.) While this matter was still pending, on 21 February 1933, Binodini Dassi executed a mortgage bond in favour of the plaintiffs in respect of the undivided 2/3 share of the minors in the dwelling house and purporting to be in consideration of a loan of Rs. 1,500. In the recitals in the bond, it was stated that the money was needed for the education of the minors and for payment of debts incurred by their father". After this transaction was completed, Binodini Dassi seems to have taken no further steps in the matter of furnishing fresh security as directed by the District Judge on 16 February 1933, with the result that on 18 March 1933, or nearly a month after the mortgage executed in favour of the plaintiff, her application for permission to mortgage the minors property was refused by the learned District Judge on the sole ground that the guardian had failed to furnish additional security. Plaintiff instituted a suit on the mortgage bond against the minors. Binodini Dassi had already been discharged from guardianship at her own request, and the minors were represented in the suit by a pleader guardian appointed by the Court. The defendants contested the suit, alleging (1) that the mortgage bond had not been executed by their mother Binodini Dassi; (2) that there was no passing of consideration; (3) that there was no legal necessity for the loan; (4) that if it were found that there was passing of consideration, the money received was not expended for the benefit of the minors; and (5) that the mortgage was voidable at the instance of the minors, inasmuch as no sanction of the same had been obtained from the District Judge.

(3.) The trial Court dismissed the suit holding that though the bond was duly executed and registered by Binodini Dassi, there was no proof of the passing of consideration. The decision of the trial Court was reversed in appeal but on second appeal to this Court, the decision of the lower Appellate Court was set aside and the appeal remanded for further hearing, with a direction as to the manner in which the evidence should be considered. On a re-hearing of the appeal, the lower Appellate Court came to the following conclusions, namely (1) that the sum of Rs. 1500 was paid to Binodini at Khulna as consideration; (2) that the plaintiff had made proper enquiries and had satisfied herself that there was legal necessity for the loan; (3) that the money had actually been spent for the benefit of the minors; but (4) that as no sanction for the mortgage had been obtained from the District Judge, plaintiff was entitled only to a simple money decree. The defendants have again appealed to this Court.