JOGESH CHANDRA GHOSE Vs. CHAPALA SUNDARI BASU

JUDGEMENT

(1.) This is an appeal by Defendants Nos. 1 and 2 against a decision of the Second Additional District Judge of Dacca, reversing a decision of the Subordinate Judge of the Fifth Court. The suit was brought to enforce a mortgage executed by one Sarat Kamini Ghose. At the time the suit was brought Sarat. Kamini had died and the defendants-appellants are her sons who inherited the estate as reversioners. The mortgage was dated the 29 Sraban 1316, and the principal mortgage sued upon was one for Rs. 857 and 8 annas, the claim in the suit with interest amounting to Rs. 1,747. The interest of the mortgagor Sarat Kamini was derived from her mother Barada Sundari. Barada Sundari's husband Brojo Kishore Raha died leaving a Will whereby he provided that his wife Sreemutty Barada Sundari should be the sole proprietor having power of gift and sale of the properties he left behind him after his death and the Will further provides that so long as she would be living no one would have any right but that his daughter and his son-in-law Kedareswar Ghose, who is described in the Will as ghar-jamai should be maintained in the family. The Will goes on to give a life interest after the death of Barada Sundari to Sarat Kamini. But the construction put upon the Will by the Courts below is that Barada Sundari got an absolute interest in the properties and consequently the subsequent gifts were of no avail. I am not prepared to say that this construction is wrong though I think that something may be said looking at the Will as a whole for holding that Barada Sundari's interest in the properties was merely for life and that after her death her interest devolved upon Sarat Kamini. Be that as it may, I am not prepared to quarrel with the finding of the Courts below that Barada Sundari's interest was an absolute interest and that consequently, the estate of Sarat Kamini was the estate of a Hindu daughter. The First Court decreed the suit but did not decide the question of legal necessity. The case was remanded for this purpose by the lower appellate Court and that Court decided that there was no legal necessity and refused, therefore, to pass a mortgage decree and passed a decree only in respect of the money advanced. On appeal to the District Judge, he has passed a mortgage decree holding that there was legal necessity. He says, I am of opinion, that defence Witness No. 2 proves beyond question that the money was borrowed for legal necessity and that in fact the respondents profited by the loan. As I have already stated the children of Sarat Kamini were reversioners entitled after her decease.

(2.) Three points have been urged before us in this appeal. The first is, that the plaint does not disclose that the estate which Sarat Kamini had was that of a Hindu daughter and, therefore, as the case is based on a mortgage by an absolute owner the suit should fail entirely. Secondly, it is stated that as the learned Judge disbelieved the plaintiffs evidence as to legal necessity, namely, that the money was advanced to pay arrears of rent and for expenses of the estate he should not have held that legal necessity was established from the evidence of one of the defendants witnesses and consequently, the suit should have been dismissed on the ground that legal necessity had not been established by the plaintiffs witnesses. The third point urged is that the money was not in fact advanced for legal necessity. It is stated that on the evidence Rs. 259 was advanced to build a house for Sarat Kamini's husband at Mawa and that that cannot be deemed to be a legal necessity. Then it is stated a further sum of Rs. 200 was advanced for expenses of the family at Dacca and it is stated that this is not legal necessity--the test being whether there was any obligation on the last absolute owner Barada Sundari to maintain the children of Sarat Kamini and it is stated that as there was no such obligation the advance of Rs. 200, which was expended in maintaining the family does not fall within the doctrine of legal necessity. Thirdly, it is stated that as to Rs. 146 out of the advance this money was used to pay the shradh expenses of the husband of Sarat Kamini. We do not think that this is correct and this money seems to have been expended like the Rs. 200 for the expenses of the family at Dacca.

(3.) So far as the first point is concerned, we do not think that the plaintiffs are precluded from succeeding by reason of the fact that they did not state that Sarat Kamini was a limited owner. After all, this was a question to be raised by the defendants in their defence and I cannot say that they have been prejudiced in any way by the plaintiffs pleading and there does not seem to me any substance in this point.