SHEOPARSAN SINGH Vs. MUNSHI NARSINGH SAHAI

JUDGEMENT

(1.) This is an appeal from a judgment and decree of the High Court of Judicature at Patna dated May 29, 1928, reversing a judgment and decree of the Second Subordinate Judge of District Arrah, dated August 2, 1924, and decreeing in full the plaintiff-respondent's suit to recover Rs. 39,855 annas five pies six secured by a mortgage bond executed in favour of his benamidar on behalf of the defendant-respondent Mussammat Dhanwanti Kuer on March 3,1908.

(2.) 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).

(3.) 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. Alter 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 effected 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 Musammat Dhanwanti Kuer and Babu Jaideo Singh shall jointly or severally execute the same as required. If for payment of road cess which may be jointly payable, or for any decretal money. I, Muaammat Dhanwaufci 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 sharesi then that deed shall be binding on me Musammab 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 executanb Musammant 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 Kehan 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 Mahajana excluding the share-holders and Pattidars of Mouza Raghubir Garh Koindi, and to this Babu Jaideo Singh shall not raise any objection. 13. Save and except the stipulations laid down in paragraphs 6 and 7 above. I, Muaammat 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 Rohan deed with regard to the same, and if I do so, it shall be treated as null and void.