SHEOPRASAN SINGH Vs. MUNSHI NARSINGH SAHAY

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the High Court of Judicature at Patna dated 29 May 1928, reversing a judgment and decree of the Second Subordinate Judge of District Arrah, dated 2nd August 1924, and decreeing in full the plaintiff-respondent's suit to recover Rs. 39,855-5-6 secured by a mortgage bond executed in favour of his benamidar on behalf of the defendant-respondent Mt. Dhanwanti Kuer on 3rd March 1908. The only compearing parties at the trial were the appellant who under certain deeds which it is not necessary to refer to has acquired all the rights of Dhanwanti Kuer in the mortgaged properties, and the plaintiff-respondent (hereinafter referred to as the respondent.)

(2.) The facts of the case may be shortly summarised: Dhanwanti Kuer is the widow of one Sukhdeo Singh, who died prior to the middle of the year 1900, leaving three unmarried daughters. His three brothers Jaideo, Namdeo and Sahdeo survived him, but the two latter had already lost their interest in the family property. After Sukhdeo's death his widow applied for mutation of her name in place of her husband in certain properties but was opposed by Jaideo. The dispute between them was finally settled in terms of an ekrarnama (an agreement) executed in July 1900. This document proceeds on the narrative that the widow Dhanwanti Kuer had three unmarried daughters and that she would require to take a loan to provide for the expenses of their respective marriages which could not be affected unless her name was registered in the Government office in respect of the estate left by her husband. The deed accordingly (para. 4) provides that she should get her name registered in the khas properties of Sukhdeo Singh therein specified. Para. 5 provides for certain debts being borne equally by Jaideo and Dhanwanti. The deed then proceeds: "6. If for payment of the previous debts, necessity may arise to execute fresh deeds bearing cheap interest, then we Mt. Dhanwanti Kuer and Babu Jaideo Singh shall jointly or severally execute the same as required. If for payment of roadcess which may be jointly payable, or for any decretal money, I Mt. Dhanwanti Kuer may not get an opportunity to execute any deed with a view to mortgage both the shares, and if Babu Jaideo Singh makes payment by executing any deed and by mortgaging both the shares, then that deed shall be binding on me, Mt. Dhanwanti Kuer as if it was executed by me personally. 7. In the event of the income of the properties with respect to which the name of me the executant Mt. Dhanwanti Kuer will be recorded, being insufficient to meet the expenses at the occasion of my daughter's marriage, I shall be competent to take loan by rehan or mortgage of the whole or part of my milkiat property and to perform the marriage. But it will be incumbent on me first to ask Babu Jaideo Singh for a loan and should he fail to advance the loan from his own fund or to obtain from others, I shall borrow money from other mahajans excluding the share- holders and pattidars of Mauza Raghubir Garh Koindi, and to this Babu Jaideo Singh shall not raise any objection. 13. Save and except the stipulations laid down in paras. 6 and 7 above I, Mt. Dhanwanti Kuer, shall have no right at all to create any encumbrance on the property or to execute any deed of sale conditional sale or patta or rehan deed with regard to the same and if I do so, it shall be treated as null and void."

(3.) The deed further provides that on the widow's death the properties standing in her name are to devolve on Sahdeo Singh and Namdeo Singh-that the entire management of the properties should be vested in Jaideo, that certain payments for maintenance should be made to Namdeo and Sahdeo and that the widow should receive a, cash payment of Rs. 150 and certain quantities of cereals and oils yearly. After all expenses were paid (including guests, visitors, andc.) the balance of revenue was to be paid over to the widow. The annual income of the property is variously estimated at from Rs. 1,000 to Rs. 3,000. The High Court in their judgment have characterized this deed as an unfair one and it certainly appears to have been made more in the interests of Jaideo and his brothers than of the widow. The widow apparently also took this view, for in a suit against her the judgment in which was delivered on 20 March 1913, she pleaded that the ekrarnama was executed by her without any knowledge of its contents or understanding its effect. An issue as to this was duly framed and went to trial, but was decided against her by the Subordinate Judge. She herself gave evidence and is described in the judgment as "an ignorant lady, but very clever lady as a perusal of her evidence will show." This judgment was confirmed on appeal by the Additional District Judge.