RAGHUBANS UPADHYA Vs. INDARJIT SINGH

JUDGEMENT

(1.) This was a gait for a declaration that a certain mortgage deed executed by Musammat Rupkali, on behalf of her minor sod, Indarjit Singh, in favour of the defendants-appellants on the let of July 1919, was call and void and not enforceable against the minor. The mortgage was executed for the sum of Rs. 750 out of which Rs. 80 were found by the First Court to hare been taken for the benefit of the minor. The lower Appellate Court, however, held that a further sum of Rs, 41 had also been taken for his benefit. The item which the Court of first instance allowed was an amount taken to pay arrears of rent. The contention of the learned Council who appears for the defendants-appellants is that the amount of rent actually due by the minor was Rs. 125; but we cannot go behind the finding at which the learned District Judge has arrived on the evidence adduced.

(2.) The item of Rs. 41 was allowed on account of a payment made to the Co- operative Bank Limited on account of a debt which existed from the time of Kuber Singh the father of the minor. That payment was made in 1914. The whole debt due by Kuber Singh and after his death, by Musammat Rupkali as representing able minor to the Co-operative Bank, bad, however, run in 1919, to a sum of Rs. 254 8. It is stated that on the 1 of July 1919, a further sum of Rs. 200 was taken to pay to the Back. The mortgage deed does not say so, but there was come evidence adduced to show that the defendants had advanced Rs. 200 for that purpose. That evidence was evidently accepted by the lower Appellate Court; but that item was disallowed on the ground that there was nothing to show that that money was actually paid in satisfaction of the debt. A creditor is not, however, bound to Bee to the application of the money. If a person, dealing with the manager of a family or, for the matter of that, with the guardian of a minor, does make enquiries and acts honestly, the real existence of an alleged and reasonable necessity is sufficient to validate the debt and be is not bound to see to the application of the money. In Kandhia Lal V/s. Muna Bibi A.W.N. (1897) 220 : 20 A. 135 : 9 Ind. Dec (N.S.) 448 it was held that a plaintiff who has advanced money to relieve the necessities of a minor must make all reasonable enquiries as to the facts of such necessities, and having made such enquiries and reasonably entertaining a bona fide belief in the existence of such necessities, he can then advance his money in safety, even though it might ultimately be discovered that the sum borrowed by the guardian upon the security of the minor's estate was not in fact used for his benefit. If the creditor acts honestly and under a bona file belief arrived at after due enquiry that the necessity existed, he is protested and is entitled to recover the debt irrespective the manner in which the guardian may have ultimately applied it. That being so, the plaintiff was entitled to recover the sum of Rs. 200 which was taken for payment to the Co-operative Bank aforesaid. A sum of Its. 10 ought also to be allowed on account of proportionate expanses of execution and registration. The defendants are not enticed to claim the other items in regard to which the findings of the Courts below are unanimous and conclusive.

(3.) We dismiss the appeal accordingly except in so far that we declare that the mortgage-bond in question will be binding on the minor to the extent of the amount awarded by the lower Appellate Court plus Rs 210 and interest thereon at 1 per cent per mensem, from the 1 of July 1919 till the date of payment. It will be open to the plaintiff to redeem the mortgage at any time on payment of the amount due thereon as above indicated. The defendants appellants will get their proportionate costs here and hitherto from the plaintiff-respondent who will get his proportionate costs from the defendants-appellants throughout.