MAKKHAN LAL Vs. MTSARDAR KUNWAR

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for recovery of possession brought by a Hindu daughter by avoidance of a possessory mortgage deed executed by her deceased mother Tursa Kunwar. The plaintiff's father Mukhram Singh died in 1906 leaving some brothers, his widow and a daughter the present plaintiff. The brothers of Mukhram Singh put forward a claim that the family was joint and that they were entitled to the deceased's estate by right of survivorship. There was litigation in the mutation Court in which the widow succeeded. A civil suit was instituted which resulted in a decree in favour of the brothers with regard to all the villages excepting Sasain on 30 November 1908. In appeal to the High Court the decree was reversed and the suit was dismissed. It appears that the brothers on their success in the trial Court obtained delivery of possession after November 1908 and on the widow's success in the High Court possession was restored to her in May or June 1911. There was a further appeal to their Lordships of the Privy Council which was dismissed in July 1913.

(2.) On 26 October 1914 the widow executed the mortgage deed in question in favour of her son-in-law, the husband of the present plaintiff for a sum of Rs. 15,000. The document recited that the lady had to incur expenses in connexion with the previous litigation and her son-in-law looked after the cases and defrayed the entire costs of the suits from his own pocket. There was an express mention that he spent considerable sums of money in the Revenue and in the original and appellate civil Courts. The deed then goes on to say that after her final success the enemies of her son-in-law provoked her in such a manner that she turned against him and that all the pains that he had taken to look after the cases as well as the expenses of money that he had spent in looking after the cases and meeting his expenses "which wag due to him by her" altogether passed out of her mind and having regard to the worldly affairs and for the benefit of her soul in the next world she was then willing to pay the entire amount which Chhattarpal Singh spent from his, pocket and for which he was making a pressing demand. The deed recited that the son-in-law had fully explained the account of expenses incurred by him in the cases, the total of which came to about Rupees 10,000. There was a further recital that inasmuch as the amount had been spent partly from his pocket and partly by borrowing money from others she was prepared to pay interest on that amount. The deed also recited that he had spent about Es, 3,000 in meeting her personal expenses during the preceding eight years. Thus the total amount came to Rs. 13,000 principal. She agreed to pay Rs. 2,000 by way of interest on this amount. The mortgage was a possessory one and the mortgagee Chattarpal Singh was in possession of the mortgaged property. There was a recital that the interest on the mortgage money would be equal to the amount of profits and there would be no account taking between the parties.

(3.) Chattarpal Singh subsequently made a submortgage of his mortgagee rights in respect of the villages excepting Sasain to the contesting defendants 1 to 5. After the death of the widow in 1926, the submortgagee rights in the villages were sold at auction in 1927 in execution of three decrees against Chattarpal Singh. The present suit was instituted by the daughter Mt. Sardar Kunwar, against her husband and his transferees shortly after the death of her mother. The plaintiff challenged the mortgage deed on the ground that it had been obtained fraudulently from her mother, that it was without consideration, and that there was no legal necessity for it. The claim was resisted by the subsequent transferees on the ground that the mortgage deed was for legal necessity and was binding on the plaintiff. The learned Subordinate Judge has come to the conclusion that there was evidence to show that about Rs. 5,800 had been spent by Chattarpal Singh towards the expenses of the litigations, but that there was no proof of the balance having been spent. He further found that it was not proved that any interest was due to Chattarpal. He did not make the plaintiff pay even the sum of Rs. 5,800 because he came to the conclusion that the amount had become time barred when the mortgage deed was executed and therefore there was no legal necessity for the transfer.