ANNODA MOHINI ROY CHOWDHRY Vs. BHUBAN MOHINI DEBI

JUDGEMENT

(1.) THE question in this appeal is whether a deed of mortgage which the respondent, Bhuban Mohini Debi, one of the defendants in the suit, executed to the plaintiff, now appellant, was so executed with due understanding of its effect; the defendant being a purdanashin lady. The Subordinate Judge held that the defendant fully understood the deed. On appeal the High Court held the contrary view, and dismissed the mortgagee's suit as against her. From that decision he now appeals.

(2.) THE position of the parties is one of some complexity. The defendant Bhuban is the daughter of Mohesh Chunder, who appears to have been possessed of considerable property. In June, 1874, he executed a deed for the purpose of making provision for her maintenance. "You have been married to a Kulin, Sudarsan Chunder Banerji, who has no property by means of which you may be maintained. Consequently, in my lifetime, I give you for your maintenance two mehals, kismut Iswarpore and kismut Shibpore, appertaining to turuf Barra 3& frac12; annas of my ancestral zemindari of 7 annas share of pergunnah Kundi, bearing No. 163 of the towzi of the Collectorate of zillah Rungpore, recently specially registered in No. 1 on separate account being opened and bearing the sudder-jumma of Rs. 9836.13.1.2. On my death, you shall get into possession of the two mehals and possess and enjoy the same with great felicity." Then follow provisions on which questions may be raised as to the extent of the interest given to Bhuban; but these questions do not arise in this suit. She has at least an ownership for life, with a claim to be indemnified against the Government jumma by the remainder of the zemindari. These two mehals are the subject of the present appeal.

(3.) IT appears that the testator contracted large debts, for the discharge of which he sold parts of his estate, and other debts, either contracted by himself or arising on account of revenue claims, became due from the estate. The executors gave bonds to secure those debts on behalf of themselves and Kali Ranjan. On September 19, 1887, they executed a mortgage to the plaintiff for Es. 8000 for the purpose of paying off the prior debts. The mortgage was expressed to be made by: firstly, Kali Ranjan through the executors; secondly, the executors personally; and, thirdly, Bhuban. All make themselves personally liable for this advance. The executors mortgage the whole estate, Jagadiswari mortgages her life interests under the will, and Bhuban mortgages Shibpore, in which she is described as having an absolute interest by deed of gift. The deed was registered the next day with due formalities as regards the two ladies.