BOHRA NATHU RAM Vs. PARTAB SINGH

JUDGEMENT

(1.) The suit out of which this appeal arises was brought to enforce a simple mortgage of the 19 of January, 1909. The executants were four persons, Kanhaiya Lal, Gauri Shankar, Mangal Sen and Musammat Shiam Kunwar. In the suit as brought the defendants included Kanhaiya Lal and Gauri Shankar of the original executants. They included also two minor sons of Gauri Shankar and three sons of Mangal Sen. It was these sons of the original executants of the mortgage who really contested this suit, and the appeal before us is by the three sons of Mangal Sen and one of the sons of Gauri Shankar.

(2.) The main question litigated in the court below was whether the consideration for the mortgage deed in suit, amounting to Rs. 26,750, was or was not raised for such legal necessity as to make it binding upon the sons of the original executants. The learned Subordinate Judge has traced back the entire series of transactions through one hypothecation deed or simple bond after another, till he comes to loans raised in the year 1883 by Nand Ram, the great-grandfather of these contesting defendants. He has finally arrived at the conclusion that the great bulk of the consideration for the bond in suit was raised for lawful necessity, so as to make the hypothecation of the property binding upon the sons of the executants. As regards a small portion of the debt he has given a personal decree against Kanhaiya Lal and Grauri Shankar only.

(3.) The appeal before us, as already noted, is by the sons of Mangal Sen and one son of Grauri Shankar. There is no cross-objection on the part of the plaintiffs in respect of that portion of the decree of the trial court which gives them only a simple money decree in respect of part of the claim. We lay stress on this fact because, upon an examination of the record, it seems to us that the essential question raised by this appeal must be decided without going into the detailed history of previous transactions which the learned Subordinate Judge has found it necessary to set forth. The entire consideration for the mortgage deed in suit consisted of money due on a previous deed of the 28 of January, 1897. The executants of this deed were Kanhaiya Lal, Gauri Shankar and Mangal Sen, together with one Bhagwati Prasad, a brother of Grauri Shankar and Mangal Sen, who has since died without issue. It was his widow, Musammat Shiam Kunwar, who joined in executing the mortgage deed now in suit. On examining the record we find it to be established beyond question that none of the appellants was in existence in the year 1897. The oldest of them is the appellant Piari Lal, son of Mangal Sen, and he was born in or about the year 1902. In fact, so far as we can ascertain, the four executants of the deed of the 28 of January, 1897, were on that date the sole owners of the property with which they dealt. Under these circumstances the mortgagees, who advanced the sum of Rs. 10,000 as consideration for that deed, were under no obligation to make inquiries as to the purposes for which the money was wanted. They were dealing with absolute owners of the property, and it is quite beyond question that if the transaction of 1897 had been a sale instead of a mortgage, a valid title would have passed to the vendees which could never have been questioned by sons subsequently born to one or more of the vendors. These sons took, from the moment of their birth, an interest in the whole of the joint family property as it stood on the date of their birth. They could not question alienations made prior to the date of their birth, at a time when they had no interest in the property. This principle was laid down by a Bench of this Court in the case of Chuttan Lal V/s. Kallu (1910) I.L.R. 33 All. 283 in a judgment in which the authorities are discussed and the principles of Hindu law applied to the circumstances of the case. There seems no reason for making a distinction between an alienation by way of sale and an alienation by way of mortgage. In fact this Court has already applied the same principle to alienations of both kinds, as is apparent from the reported case above referred to. If, therefore, the present suit were one upon the mortgage of the 28 of January, 1897, those defendants, who are appellants now before us, could not challenge the validity of that mortgage or put the plaintiffs to proof of the purposes for which Kanhaiya Lal, Bhagwati Prasad, Gauri Shankar and Mangal Sen raised the money. Now the mortgage deed in suit is in favour of the same mortgagees. The recital of the document shows clearly enough what happened. The prescribed period of limitation for a suit on the deed of the 28 of January, 1897, was running out and the mortgagees were threatening to bring a suit there and then. The deed in suit was obviously the result of negotiations between the parties, and the mortgagees seem to have behaved with all reasonable leniency. They not only refrained from instituting a suit on the deed of 1897, but remitted a certain part of the accumulated arrears of interest. Some stress has been laid in argument before us on the manner in which the sum now claimed by the plaintiffs has swollen through accumulations of interest; but, after all, the covenant in regard to interest was not an exceptionally onerous one, and if mortgagors choose to permit compound interest to accumulate without making payments in order to keep it down, they must eventually come face to face with a result such as that involved in the claim now before us. There is this much to be said for the plaintiffs, that they have exercised much patience and have gone without any interest to speak of on this money for a very long period of years.