MAN SINGH Vs. BENI RAM

JUDGEMENT

(1.) This was a suit by the respondent to enforce a mortgage deed executed in his favour by Mathura Prasad, and his son, Janki Prasad. The defendants to the suit were Janki Prasad, Beni Earn another son of Mathura Prasad, and Gajadhar and Raj Bahadur, sons of Janki Prasad. The principal sum secured by the deed was Rs. 2,000. The claim was for Rs. 10,094-14-3, and that amount has been decreed, In the court below it was contended by the defendants that the provisions of the deed relating to interest were unconscionable and should not be enforced. The contention was overruled and has not been repeated here. The only questions for decision are whether the, deed in suit was duly executed and registered, and whether it can be enforced against the appellants, Beni Ram, Gajadhar and Raj Bahadur.

(2.) Of the marginal witnesses to the deed, Bhola Nath is dead and . Piari Lal has disappeared. The two remaining witnesses, Chiddu and Chiranji Lal, a brother of Mathura Prasad, did their best to minimize the effect of their testimony, but both had to admit that the deed was signed by Mathura Prasad and Janki Prasad. Another witness, Jai Ram, whom the court below has believed, said that Mathura Prasad and Janki Prasad signed the mortgage deed in his presence in the Muttra jail. Chiranji Lal, Brahman, proves the due execution by Mathura Prasad, of a power of attorney, authorizing Janki Prasad to procure the registration of the mortgage deed. There can, I think, be no doubt that the mortgage was duly executed and registered.

(3.) Mathura Prasad had been committed to the Court of Session on charges under sections 467 and 471 of the Indian Penal Code, and the money was borrowed for the purpose of engaging counsel to defend him at the trial. The mortgagee was aware of the purpose for which the money was being borrowed. Mathura Prasad was ultimately convicted and sentenced to several years rigorous imprisonment. The question is, whether the mortgage made in these circumstances is binding upon the other members of the family. Accordiug to the Mitakshara one member of a joint family may effect a gift, mortgage or sale of family property in time of distress for family purposes and especially for religious purpose Mathura Prasad was the manager of the family property and the mortgage must be held to be binding upon the family if comes within the rule just stated.