MT DAULTA KUER Vs. RAM DAS RAI

JUDGEMENT

(1.) This is a second appeal by the defendants against concurring decrees of the Courts below in favour of the plaintiff, a minor. The plaintiff sued for a declaration that a mortgage deed executed by his father Ram Subhag on 28 May 1920 for Rs. 800 to the defendants was void against him and that a mortgage decree in Suit No. 450 of 1932 which was a preliminary decree for sale of ancestral property obtained against his father alone was also void against him. This decree was on the mortgage of 28 May 1920. The facts as found by the Courts below are that there was a mortgage of 5 August 1913 executed by Bachcha Rai who was a cousin of Ram Subhag and formed a joint family with him and Bachcha Rai was the head and manager of that joint family. This mortgage deed was in favour of Ram Baran Rai and others for Rs. 499. After this there was a partition between Ram Subhag and Bachcha Rai who were the only two members in the joint Hindu family. The mortgage deed of 1913 was allotted to the share of Ram Subhag. By this expression it is probable that what was meant was that the property on which this mortgage existed was given to the share of Ram Subhag and that he was required to pay that mortgage debt and that Bachcha Rai ceased to have any liability to pay that mortgage debt. The Courts below have come to the conclusion that this was not an antecedent debt of Ram Subhag because Ram Subhag did not incur the debt by executing the mortgage deed of 1913. But we consider that by the partition between Bachcha Rai and Ram Subhag, Ram Subhag undertook the sole liability for this debt and therefore it became his debt. In Mayne's Hindu Law and Usage, Edn. 10, p, 426, it is stated: Antecedent debt means an indebtedness of the father prior in time to and independent in origin of the particular dealing with the family property, whether by way of sale, mortgage or other disposition which it is sought to enforce against the son.

(2.) We consider therefore that by this partition this debt became the debt of Ram Subhag and Ram Subhag became the sole person who was liable to pay this debt. It was therefore undoubtedly the debt of Ram Subhag from the date of partition and that debt was antecedent to the mortgage of 1920. In our opinion therefore the debt of 1913 was undoubtedly an antecedent debt of Ram Subhag in 1920. Now by the mortgage in question of 1920 the entire mortgage money was devoted to the payment by the Ram Subhag's mortgagees of the prior mortgage of 1913. Therefore, in our opinion, the entire consideration of the mortgage of 1920 was antecedent debt and is binding on the plaintiff. There is however another point which has been raised by the appellants and that is that the plaintiff was born in 1922 and therefore he has no legal right to challenge the mortgage of 28 May 1920. In reply to this learned Counsel for the plaintiff-respondent argued that the plaintiff did not desire to do more than to challenge the decree of 1932. But the relief granted by the Courts below is in regard to the mortgage of 1920 as well as the decree of 1932. Moreover, if the plaintiff is not entitled to challenge the mortgage of 1920, he cannot be entitled to challenge the decree of 1932. The next ground which was argued was that although the Munsif has come to a finding that the plaintiff was born in 1922, the lower Appellate Court did not come to a finding on the point. The trial Court granted a decree in favour of the plaintiff and the defendants appealed. The first ground of appeal was: It is fully proved from the evidence on the record that the hypothecation bond in question was executed before the birth of the plaintiff- respondent and that according to law the plaintiff-respondent and the property in suit are liable for it.

(3.) This point however was not pressed before the lower Appellate Court and apparently the lower Appellate Court did not consider whether the finding of the Munsif in regard to the birth of the plaintiff in 1922 was correct or not. Now that the matter has become the subject of an argument in this Court, we have heard learned Counsel on the subject of the evidence on which the Munsif arrived at his finding that the plaintiff was born in 1922. The Munsif sets out that there was before him the school certificate stating that the plaintiff was born in 1922. The plaintiff is stated to have relied on a horoscope and on a medical certificate to prove to the contrary. No evidence was produced to prove the certificate and therefore the certificate is merely hearsay. In regard to the horoscope, evidence was called to show that it was in the handwriting of a Pandit who was dead. The document was tendered in evidence on the last date of hearing and the defendants did not have an opportunity to contest the authenticity of the assertion. The Munsif therefore rejected the horoscope as unreliable. The Munsif stated in regard to the plaintiff: "He appears to be hardly more than 10 or 12 years old." This statement appears in the judgment dated 14 January 1935 and the Court was therefore well within the mark in putting down the birth of the plaintiff as in 1922. We consider that the finding of the Munsif is correct and this Court in second appeal is entitled to come to a finding of fact where the lower Appellate Court has omitted to arrive at such a finding.