MUKHA Vs. QABZA

JUDGEMENT

(1.) This appeal arises out of a suit which was brought to realise the amount of a mortgage, dated the 7th of February 1910. The mortgage was made by one Musammat Thakuri, the widow of Pat Ram. The defendants to the suit were Qabza, Dalla, Rasalu and Musammat Parsanni. Musammat Parsanni and Rasalu were pro forma defendants, vendors of the defendants Qabza and Dalla. The defence was that there was no legal necessity. The plaintiffs replied that there was legal necessity and that even if there was no legal necessity, the defendants claiming under Rasalu had no locus standi to contest the legality of the mortgage, in that Rasalu had no right of inheritance to the estate of Pat Ram, the husband of Musammat Thakuri. The Court below has decreed the suit in part. It has held that there was legal necessity to the extent of Rs. 498-8-0, principal and interest. Two appeals have been preferred. The plaintiffs have appealed in regard to so much of their suit as was dismissed, whilst the defendant Qabza contends that legal necessity for no part of the mortgage-money was proved.

(2.) We shall first deal with the question of necessity. The evidence consisted of the proof that there had been a previous debt incurred by Musammat Thakuri, but there is no evidence to show that there was any necessity for the incurring of this previous debt. In our opinion under these circumstances legal necessity was not proved.

(3.) The second question, namely, whether the defendants had any locus standi to contest the validity of the mortgage, depends upon whether or not Rasalu was a reversioner or otherwise entitled to succeed to the property. Rasalu according to the findings of the Court below was the daughter s daughter s son of the grandfather of Pat Ram. According to Sarbadhikary s Tagore Law Lectures for 1882, page 701, a grandfather s daughter s daughter s son is a bandhu ex, parte paterna, and we think that he is a bandhu. Under these circumstances, the defendant Qabza is entitled to contest the validity of the mortgage