KORI KOTRABASAVVA Vs. ARAGANJI VEERABHADRAPPA

JUDGEMENT

(1.) THIS is a reversionary action filed by the daughter of one Basalingappa for a declaration that a mortgage decree and the proceedings in execution of that decree in O.S. No. 299 of 1934, are not binding upon her. The properties in question admittedly belonged to her father Basalingappa, who died before 1913, leaving a widow who died after the suit and the plaintiff, his daughter. The first respondent and the second respondent's grandfather lent monies to the widow and ultimately a mortgage deed for Rs. 3,500 was executed on the 7th September, 1922. On this mortgage a suit was filed by the first respondent against the mortgagor, the widow impleading the co-mortgagee's grandson as a defendant. A mortgage decree was passed and the properties were purchased by the first respondent. The present suit is filed for a declaration that the mortgage, - the decree in the suit and the sale in execution are not binding on the plaintiff, the next reversioner. The suit was decreed by the trial Court but on appeal the District Judge reversed the decision of the trial Court and held that the mortgage was proved to be binding on the estate of Basalingappa. Ex. XII, the mortgage in favour of the first respondent and the grand father of the 2nd respondent was executed on the 7 September, 1922, for Rs. 3,500 partly in discharge of an earlier mortgage, Ex. VIII and also in discharge of the amounts due on further dealings. The prior mortgage, Ex. VIII was of the year 1919, and it was for a sum of Rs. 1,500. By the time of Ex. XII, the amount due under it is said to have amounted to Rs. 1,966. The amount of Rs. 3,500 for which Ex. XII was executed was made up of Rs. 1,966, due under the prior mortgage, Ex. VIII, Rs. 809, the amount due on dealings and Rs. 725 due on a promissory note executed by the plaintiff's husband, Ex. VIII was in turn executed in respect of prior dealings. Apparently it was in discharge of Exs. V, VI and VII but this is not quite clear and the matter requires investigation. The learned District Judge relies upon Exs. I to IV which are said to be patti books, the account books themselves not having been produced. Except in a few cases, so far as I have examined the entries with the help of the advocates on either side, no purposes are mentioned as against most of these items. From Ex. I it appears that there was a debt due by Basaliingappa to the extent of Rs. 200 and that it was reduced to Rs. 100 by the widow. And then Ex. II shows that in 1915 the debt due was reduced to Rs. 16. So in 1916, the amount due was only Rs. 16. The Judge says that the reduction could not have been out of the income but that it must have been out of borrowings effected from third parties by the widow. But he does not refer to any evidence and the evidence has to be canvassed to see whether this statement of the Judge is based on any evidence. The estate left by Basalingappa consisted of 40 acres of dry land. The Judge says in paragraph 17 that the income according to the first respondent himself would be Rs. 300 to 400 in a good year, Rs. 100 to 200 in a bad year and the net income on lands would be Rs. 100 to 200; that is, if the lands are leased out the income would be Rs. 100 to 200, otherwise if they are cultivated by the widow with the help of farm servants it will be Rs. 100 to 200 in a bad year and Rs. 300 to 400 in a good year. There is no attempt to find out how much of the 40 acres was leased out and how much was cultivated; by the family. That some lands were cultivated by the widow is shown by the fact that several of the amounts borrowed from the first respondent and his co-mortgagee are said to have been for agricultural purposes, purchase of bulls, payment to field labourers and for cultivation expenses. A finding must be arrived at on the evidence available as to what roughly was the income, which the widow was getting from her lands. In this connection, when the defendant himself gives the figures at Rs. 300 to 400 or Rs. 100 to 200, the Court may safely take the higher figure because it is not likely that the defendant would be making much of a mistake in giving that sum. Then another point requiring mention is that the Judge in paragraph 15 seems to take it that even the son-in-law's maintenance would be a proper charge on the family. He says that the widow had to maintain not merely herself but the daughter and son-in-law as well and that Rs. 300 or even Rs. 600 cannot be saidto be unreasonable in these circumstances. THIS seems to me to be absolutely unsupportable. Ordinarily it is only the widow that can claim to be maintained from the property left by the husband. The daughter, if indigent, may be maintained but you cannot go further and say that the daughter's husband and others also should be maintained. If there is enough income and if it is not a question of borrowing, then it is open to the widow to maintain the son-in-law and other persons as well; but if it is a question of borrowing, where it is said that the estate is bound by all these loans, then the question would be whether the widow was entitled to incur any expenditure for the maintenance of any one except herself. There is no evidence that the son-in-law was indigent. On the other hand there are indications that he was having some trade of his own. Unless the Court can say that the maintenance of the daughter is reasonable in the circumstances of this case, having regard to the husband's circumstances, the amount borrowed for,her maintenance cannot be claimed to be a charge against the reversion. A daughter goes out of the family on her marriage. Thereafter for her maintenance she is to look to her husband's family and not to her father's family. ? It is only if she is indigent and if her husband is not able to protect her that the mother would be entitled to borrow even for the purpose of maintaining the daughter. That question has to be considered and without a finding on this point the view of the learned Judge that all the three ought to be maintained cannot be supported. THIS will have a very material bearing on the general question considered by the Judge. If only the widow or the widow and the daughter are to be maintained then the question would be what would be a reasonable sum to be spent for their maintenance, having regard to the circumstances of the family? No doubt they must keep body and soul together and they must live, that is, they would be entitled to live in the same state as they were living during Basalingappa's time. But people whose income is only Rs. 200 cannot say that they require Rs. 50 or 30 per month. There are very many people who maintain themselves on much less than that and it is a question what amount can be reasonably said to be required for the purposes of the maintenance. Another point which appears from the account pattis, Exs. I to IV is that it looks as if these creditors constituted themselves general bankers for the widow. They seem to have been lending from day to day for rice, for dal, for payment of assessment and for every conceivable purpose. There are several cases in the Ceded Districts in which most of the income when realised on harvest is handed over to the creditor in the shape of grain and day after day they go on taking from the depositee sums required for the daily consumption or for other daily needs. In a case of that kind Courts have to be careful in saying whether the general balance at the end of a long period of such continued dealings is really such as would be banding on the reversion. In such a case merely because a particular amount, say Rs. 15 or 20 was taken for the purpose of paying last, it does not mean in the first instance that it is a borrowing, nor would it lead to the conclusion that it is necessary to borrow it. Their whole income was with the depositee and they go on drawing from out of it. Are they drawing from out of the deposits or are they fresh loans? If they are loans, having regard to the general income of the family, is it a case in which the widow can be held to be justified in borrowing for the payment of the lust? THIS is not a ease of a stranger bona fide advancing monies to the widow. It is a case when right from the very beginning, that is, from the time of the death of the husband the creditors have had continuous dealings with the widow, they lending time after time at short intervals and payments being made by the widow. It is not possible to say from the extracts of the accounts whether the payments generally really represent the income which the widow got from the lands. These questions have to be considered before we can say that the mortgage for Rs. 3,500 is binding on the estate when only seven years before the total indebtedness was only Rs. 16. The decree of the lower appellate Court is set aside and the appeal remanded to the lower appellate Court for fresh disposal in the light of the above observations:

(2.) THE court-fee paid on the memorandum of second appeal is to be refunded. THE other costs will abide and will be provided for in the revised decree.