LAWS(PVC)-1934-7-135

VISHWANATH Vs. SHANKARGIR GURU MOTIGIR

Decided On July 19, 1934
VISHWANATH Appellant
V/S
Shankargir Guru Motigir Respondents

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by the plaintiff on the basis of a mortgage, dated 25th March 1918. The property mortgaged consisted of a 2-annaa share in mauza Wadgaon, a village in the Nagpur District, and a 16-annas share of mauza Uttampur situated in the Wardha District, with certain khudkasht fields in each village. The consideration for the mortgage consisted of a sum of Rs. 6,230-12-9 due on a previous mortgage, dated 17th August 1905, which was executed by Sadasheo and Narayan, the fathers respectively of defendants 1 to 3, 4 and 5, of Rs. 722-10-3 due on account and of Rs. 300 in cash paid before the Sub-Registrar. The executants of the mortgage in 1918 were Sadasheo and his three sons (the appellants before us) and Narayan who died before the suit was brought and whose sons have been discharged as they claimed no interest in the property. A decree was passed against the three sons of Sadasheo and a preliminary decree for foreclosure was passed. There was a slight modification in respect of the interest claimed, which is the subject of a cross-objection.

(2.) IN appeal the defendants claimed that the mortgage deed of 1918 was not for valid consideration, inasmuch as the mortgage of 1905, which formed the main consideration for the subsequent mortgage, was void as having been executed during the pendency of the proceedings before the Collector without the permission of the Collector having been obtained according to the provisions of para. 11, Sch. 3, Civil P.C. It is further contended that if there were a personal liability in respect of the mortgage of 1905, the claim in respect of the personal liability had become time barred before the mortgage of 1918 was executed and that the time barred debt of the father was not an antecedent debt for which he could validly mortgage the joint family property. It was also urged that in any case there could be no second mortgage of the property in respect of which the mortgage of 1905 was void.

(3.) IN arguing that the prior mortgage of 1905 is void Under Section 23, Contract Act, the learned counsel appears to have lost sight of the distinction between a personal disability to enter into a contract at all and the validity of the transfer as a mortgage. The case of Jiwan Lal v. Seth Gokuldas (1904) 17 CPLR 13, cited by him is not in point as it lays down that the disqualification imposed by Section 23, Government Wards Act, 1885, is a personal disqualification and affects all dealings of the ward with any property whatsoever. To the same effect is the decision in Hari Kishun Das v. Mohammad Safi Jan 1924 Oudh 438. The citations of Bindeshri Bakhsh Singh v. Chandika Prasad 1927 All 242 and Suraj Narain v. Sukhu Ahir 1928 All 440, are of no assistance to the appellants either as they do no more than lay down that a minor on attaining majority cannot execute a bond based on a previous bond which was void in view of his minority when the first bond was executed. All these cases relate to a definite personal incapacity to contract. In Radha Bai v. Kamod Singh (1908) 30 All 38, which was also cited, it was held that a mortgage executed by a mortgagor who was at the time disqualified Under Section 8, Jhansi Incumbered Estates Act, 1882, was void as a mortgage, but the learned counsel for the appellants has overlooked the fact that the Judges held that the transaction might have been valid as a money bond had the claim in respect of such a money bond not been barred by the law of limitation. The inability to mortgage in that case, as in the case before us, was a temporary disability only and the mortgagors would have been competent to mortgage any property which did not fall within certain prohibitions; they were not incompetent to enter into any transactions at all. That the principles enunciated in Bindeshri Bakhsh Singh v. Chandika Prasad 1927 All 242 and Suraj Narain v. Sukhu Ahir 1928 All 440 have no application to the present case is clear from the decision of a Bench of this Court in Shamrao v. Ramchandra First Appeal No. 109 of 1923, Decided on 31st July 1928, where it was held that there was nothing to prevent the mortgagors from taking a fresh mortgage in respect of the same debt when they had taken a previous mortgage which was inoperative by reason of para. 11, Sch. 3, Civil P.C. The reason is clear: the disability was a temporary disability and not a fundamental one.