JHAMMAN SINGH Vs. BHUP SINGH; MUSAMMAT GURGA KUNWAR

JUDGEMENT

(1.) This appeal is connected with F.A. 124 of 1919, as the mortgage which is the subject matter of this suit is also the subject matter of the other suit. The facts may be briefly stated:

(2.) One Bhagirath Singh died in. the year 1880 leaving a widow Musammat Pran Kunwar. He had property, a 5 biswa share in mauza Mahmudpur Jamalpur, mahal Bhagirath Singh, and a 3 biswa 2 biswansi odd share in mahal Ghair Khastgaran of the same village. The present revenues of these two properties are Rs. 530-7-0 and Rs. 593-7-0, What the revenues were in the year 1880 is not stated. The widow Pran Kunwar remained in possession of the estate until the year 1886, when she died. She was succeeded by her daughter Musammat Durga Kunwar, who was the wife of one Balwant Singh and the mother of the defendant appellant before us, Bhup Singh. Musammat Durga Kunwar had two sons and two daughters. The elder son Ram Singh died in January, 1917. The present suit was instituted on the 19 day of August, 1918. It is a suit brought by mortgagees on the basis of a mortgage-deed, dated the 5 day of June, 1912, for a sum of Rs. 5,200. The property which had come to Musammat Durga Kunwar from her father Bhagirath Singh was hypothecated. The deed was executed by Durga Kunwar for herself and as guardian of her minor son Bhup Singh, who was then about 14 years of age, and also by Ram Singh, her elder son. Ram Singh apparently carried through the transaction. He presented the document for registration and he admitted execution and completion and the receipt of the consideration. The consideration consisted of the following items: (1) Rs. 4,600 due by the mortgagors to the mortgagees on the basis of a registered simple mortgage deed of the 19 day of November, 1910, which had been executed to secure a sum of Rs. 6,400. (2) Rs. 100 taken by the executant to meet the expenses of the deed. (3) Rs. 400 taken in cash, Rs. 275 of which was to redeem certain ornaments which had been pawned by the lady, and Rs. 125 to pay off certain parol debts.

(3.) The deed of the 19 day of November, 1910, was also executed in the same way by Musammat Durga Kunwar and Ram Singh. Bhup Singh pleaded in defence that his mother had no right whatsoever to mortgage the estate, that she had no legal necessity for the loan and that he as the reversioner was not bound to pay. The suit was brought in the lifetime of Musammat Durga Kunwar. She was made a party to the suit. Bhup Singh was impleaded because on the 15 day of August, 1918, Musammat Durga Kunwar had executed a deed under which she gave up the whole of her life-estate in the property in favour of her son Bhup Singh. Musammat Durga Kunwar pleaded that she had relinquished her life-estate and put Bhup Singh in possession, she had now no longer any right in the property, that all the debts which she had incurred were her personal debts, and she generally supported her son. Musammat Bhagwati Kunwar merely pleaded that she had no interest whatsoever in the property and had been wrongly impleaded. The court below has decreed the plaintiff's suit in full and Bhup Singh has appealed. In the connected suit Bhup Singh came into court on the basis of the deed of relinquishment of the 15 of day August, 1918. Certain persons, Thakur Das and Gulab Singh, had obtained simple money decrees against Durga Kunwar, in execution of which they had attached some of the immovable property. The attachments were prior to the deed of relinquishment. Musammat Durga Kunwar, on the 17 day of November, 1896, had created a usufructuary mortgage of certain property in favour of the predecessor in title of Sannu Lal and Hira Lal. Bhup Singh asked the court for a declaration that the debt borrowed under the mortgage-deed of the 17 day of November, 1896, was the personal debt of Musammat Durga Kunwar and that by reason of the relinquishment all rights of the mortgagees under the mortgage had ceased to exist. He, therefore, asked to be placed in possession of the property as against those mortgagees. In regard to the mortgage-deed of the 5 day of June, 1912, he asked for a declaration that that mortgage was no longer binding upon the estate, inasmuch as Musammat Durga Kunwar had relinquished her rights. In regard to the attachments carried out in execution of the simple money decrees he asked for a declaration that they were no longer of any force and were void and ineffective against him. It will thus be seen that the mortgage-deed of the 5 day of June, 1912, was involved in the two cases. It is in the present appeal that we propose to deal with it at length. It is urged on behalf of the appellant that the plaintiff's have failed to prove legal necessity and that, therefore, they have failed to establish the fact that the mortgage is binding upon the estate: that the debts incurred by Musammat Durga Kunwar were all her personal debts. On these grounds it is urged that the suit ought to have been dismissed. Pending the decision of this appeal Musammat Durga Kunwar has died.