RAMGOPAL Vs. SHAMSKHATON

JUDGEMENT

(1.) THIS is an appeal from the decision of the Judicial Commissioner of the Central Provinces in a suit brought by the appellants against the first respondent and Daud Rao, the father of the other respondents, in the Court of the Deputy Commissioner, Hoshangabad. The plaint stated that the defendant Shamskhaton, the mother of Daud Rao and widow of Surji Rao, on the 4th July 1871 executed a mortgage for Rs. 4,000 of mouzah Bilawada in favour of the plaintiffs and their deceased father. The 4th paragraph was as follows : On 29th March 1875 the defendant No. 2 (Daud Rao), having filed a regular suit, obtained a decree for 14 annas share in the said village. He is in possession (of the said village) and lives jointly. But he is bound to repay the sum for which the deed has been executed. Defendant No. 2 has ratified the deed. Hence he is made a party to the suit." The plaint then stated that, the money due from the defendants was Rs. 4,000 on account of principal and Rs. 5,390 on account of interest, and prayed that the defendants should be ordered to pay Rs. 9,390, with interest from the institution of the suit, and in default of payment that the mortgage should he foreclosed and the plaintiff be put in possession of the village. The. defence of Daud Rao was that at the time of the execution of the mortgage he was absent from home in the service of the Raja of Nagpur, and knew nothing of the transaction; that when he returned from Nagpur and heard that a deed had been obtained by the plaintiffs from his mother by fraud, he at once sued his mother, and had his share of 14 annas in the village separated; and that there was no consent on his part to the deed. The defence of Shamskhaton was that the deed was obtained by fraud.

(2.) THE issues framed were--"1. Was the deed for Rs. 4,000 fraudulently executed?. 2. Did defendant No. 2 ratify the deed of mortgage executed by defendant No. 1? 8. Is defendant No. 2 liable for the debt incurred by defendant No. 1?" Evidence was given on both sides. The Deputy Commissioner, in his judgment delivered on the 4th December 1886, found the first issue for the plaintiffs. On the second issue, after stating the evidence applicable to it, he said--" From the above evidence I hold that defendant No. 2 was fully-aware of the execution of the deed of mortgage by his mother, Mussamat Shamskhaton, and admitted his liability for the debt, and thus ratified the deed of mortgage. I therefore find the second issue in favour of plaintiffs." The ground of his holding that the defendant No. 2 had admitted his liability for the debt on the mortgage is the construction which he put upon a passage in a judgment of the Deputy Commissioner, dated the 7th July 1875, in a suit between the plaintiffs and defendants upon a bond executed by both defendants, in which the Deputy Commissioner says that in a bond for Rs. 42, which had been produced in Court, reference is made to two other documents, which reference is equivalent to an admission of liability. The bond thus referred to, which was executed by Daud Rao in favour of Siwan Ram, and is dated the 9th August 1872, contains the following passage: "Besides this there are two separate deeds of previous dates; one is the mortgage deed of village, and the other is a bond. The money due under them is also duly repayable." Here it is to be observed that whether this is an admission by Daud Rao of liability under the mortgage depends upon the construction of these words, especially the word repayable." They may and would ordinarily mean repayable by the party liable to pay.

(3.) A copy of the bond marked (L) for Rs. 42.