BABOO KAMESWAR PERSHAD Vs. RUN BAHADOOR SINGH

JUDGEMENT

(1.) THE only material point to be decided upon this appeal arises in a somewhat peculiar manner. The suit was originally brought by the Plaintiff, Appellant, who is a mahajun carrying on business in the city of Benares, and also at Gya, to enforce a bond and mortgage against the late Rani Asmedh Konwar, the instrument being dated the 1st of March, 1872. It appearing, however, that the next reversionary heir was in possession of the property alleged to have been mortgaged under an ikrarnamah executed by the Rani putting him in possession, apparently, of the whole of her husband's estate, he was joined as a party Defendant in the suit; and it was prayed that a decree might be made for the amount sued for, with costs and interest, and that it might be awarded " by sale of the mortgaged and hypothecated properties, and in case the same do not cover the amount by the sale of other properties, and from the person of the debtor.

(2.) THE Subordinate Judge, who tried the case in the first instance, found wholly in favour of the Plaintiff, and gave a decree for the amount sued for, and a further direction that in case it was not paid, the mortgaged properties should be sold out and out. The High Court, upon appeal, so far confirmed the decree of the Subordinate Judge, that it left the widow bound to the extent of being a debtor on the bond for the amount stated on the face of the bond to be due, but determined that the deed had not been properly explained to her; that she did not understand, or was not properly informed, that it was a deed mortgaging the property ; and, consequently, that all that could be given against her was a decree in the nature of an ordinary money decree.

(3.) THEIR Lordships concur with the High Court in thinking that, upon the evidence, there was a total failure of proof as to the proper explanation of this deed to the lady. It is not necessary for them to say whether, that being so, they should have gone so far as to make the money decree which was made against her. That is not the subject of appeal, and they must assume that so far the decree was properly made. Nor do they think it necessary to express any opinion whether in point of fact the bond sued upon, upon the face of it, purports to pledge more than the widow's interest. They will assume that it was intended by those who prepared it to be a pledge of the mouzahs and property which she had inherited from her husband. The only question to be decided on this appeal is, whether the transaction created a charge on the inheritance; whether it made the property in question when in the hands of the Respondent liable to satisfy the bond debt for which a decree has been made against the widow.