(SAWAI SINGHAI) LAXMANPRASAD Vs. RAMDAS

JUDGEMENT

(1.) VIVIAN Bose, A.J.C. 1. This is a suit for foreclosure of one fourth of the property comprised in a mortgage dated 2nd June 1916 on payment of one-fourth of the money due on it. It is accepted by both sides that this splitting up of the mortgage debt and security is justified in the peculiar circumstances of this case. So the facts which led up to it need not be considered here. The only questions with which we are now concerned relate to the necessity for the loan and the guardianship of the defendant Ramdas.

(2.) THE mortgage was by Bindraban and Chintaman and the defendant Ramdas, who was then a minor was represented in the transaction by his uncle Chintaman. It is admitted that the family had originally consisted of three brothers: Bindraban, Chintaman and Parmanand, and of Ramdas who was the son of Parmanand. Parmanand died in 1913. The mortgage was after his death while his son Ramdas was still a minor. Ramdas questions the transaction on the ground that there was no necessity for the Joan and that his uncles had no power to bind his share in the family estate. He also contends that Chintaman was not his guardian and so had no authority to represent him in the transaction.

(3.) THE next question on which the lower appellate Court has erred is also a. matter of law relating to the question of enquiries. The learned Judge holds that certain enquiries were made and does not appear to question the good faith of the mortgagees. He also holds that a number of debts which were then in existence were binding on the family, but considers that because the mortgagee did not enquire about them from these particular creditors therefore they cannot rely on them now. This is wrong. The alienee has the option of proving either that there was necessity in fact or that be made reasonable enquiries in good faith: See Mulla's Hindu Law, Edn. 7. p. 277.