JAGERNATH PRASAD Vs. MTDHANPATI

JUDGEMENT

(1.) THIS is a second appeal by a plaintiff. The plaintiff brought a suit against five defendants on the basis of simple mortgage bond of 19 February 1918, executed by Mt. Kustnan and by Mt. Dhanpati in favour of the plaintiff. The property mortgaged consisted of 3 pies zamindari share in Mauza Manhari, appertaining to Mauza Atwa, Mahal Payag Singh patti, Mt. Nand Rani, and a three pies zamindari share in Mauza Atwa, same mahal and patti and a grove No. 595 in Mauza Atwa. In para. 5 of the plaint it was stated that the property mortgaged was the stridhan of Mt. Kusman and Mt. Dhanpati. It was further stated that after the death of Mt. Kusman defendants 3 and 4 entered into possession of her share by right of inheritance. These persons were in fact sons of daughters of Bhairo Prasad, the husband of Mt. Kusman. One of these persons sold his share to Mt. Dhanpati, defendant 1. Mt. Kusman being dead, the plaintiff asked for a decree against the property in question. The written statement of Mt, Dhanpati was that Mt. Kusman had a daughter's son (Bansgopal Lai) who married Mt. Dhanpati and later left her as a widow, and iihe then lived with Mt. Kusman: Accordingly at the instance of Mt. Kusman this defendant also affixed her signature to the mortgage deed sued on. As a matter of fact Mt. Kusman had made the mortgage transaction and the aforesaid Mt. or her heirs are liable for payment of the amount due to the plaintiff; that Mt. Kusman had only a life-interest in the property mortgaged; that the debt claimed was not contracted for lawful necessity and after the death of Mt. Kusman the property mortgaged was not at all liable to be sold by auction, and that the defendant had acquired some property from Roshan Lal, defendant 4, who was an heir of Bhairo Prasad. The Court of first Instance applied Section 43, T.P. Act, and decreed the suit against defendant 1 only and ordered the mortgage decree to be prepared for the three pies share in each of the two villages purchased by Mt. Dhanpati, defendant 1, from Roshan Lal, and for only 12 annas share of the mortgaged grove. Mt. Dhanpati brought an appeal claiming that Section 43, T.P. Act, would not apply because at the time of the mortgage the plaintiff mortgagee was aware that Mt. Dhanpati had no transferable interest in the property, and therefore no decree could be granted against her or the property which she had acquired by purchase. THIS appeal was allowed and. it was held by the lower appellate Court that the property purchased by defendant 1, Mt. Dhanpati, from Roshan Lal under the sale deed of 1922 would not be liable for the decretal amount. Against that appellate decree the plaintiff has brought a second appeal. The sole ground of the second appeal is that under Section 43, T.P. Act, the appellant is entitled to a decree against Mt. Dhanpati. The first matter to ascertain is the facts found. In para. 5 of the plaint it was alleged that the property mortgaged was the stridhan of Mt. Kusman and Mt. Dhanpati. The plaintiff is married to the sister of Mt. Dhanpati and therefore he must be aware of the circumstances of the family. In his statement under Order 10, Rule 1, the plaintiff stated that the property which was mortgaged had belonged to Bhairo Prasad and after the death of Bhairo Prasad his widow Mt. Kusman entered into possession of that property. Now, the plaintiff is a man who has lent money in this transaction and he is a Hindu and I consider that the Court must conclude that he is aware of the elementary principles of the Hindu law that a Hindu widow taking possession of property on the death of her husband holds it for her life with the limited interest of a Hindu widow. In his statement he desired the Court to believe that he thought something different, namely, that when the widow held it for 12 years it became her stridhan. I consider that this statement by plaintiff is merely a lie and, that he could not have believed anything of the sort and that he is making the statement with a view to bringing his case under Section 43, T.P. Act. In his evidence to the Court he said that he took the property under the mortgage on the assurance of Mt. Dhanpati that she was the owner of the property. Again we have a statement which the Court below has not believed and I consider that the Court below had reason to discard that statement. The finding of fact of the lower appellate Court is that the plaintiff was aware that Mt. Dhanpati had no transferable interest in the property. On that finding I consider that the decision is correct. It has been laid down in Pandiri Bangaram V/s. Karumoory Subbaraju (1911) 34 Mad. 159 that the benefit of Section 43, T.P. Act, can only be claimed by a person who has acted on the erroneous representation of the party who subsequently acquires an interest in the property. THIS decision has been followed in the ruling of this Court reported in Mulraj V/s. Indar Singh 1926 All 102 and there is also a similar observation in Jagannath V/s. Dibbo (1909) 31 All. 53. Learned Counsel for appellant referred to Tilakdhari Lal V/s. Khedan Lal 1921 P.C. 112 where their Lordships set out the principle of law which is contained in Section 43, T.P. Act. But that principle was merely set out with the observation that it had not been presented to the Courts below and that it had not been raised in the case and therefore their Lordships did not consider the application of that doctrine. So the ruling is no authority on the point. For these reasons I consider that the decree of the lower appellate Court was correct and I dismiss this second appeal with costs.