BAHURIA RAM SAHHI KUER Vs. BINDESWARI SARAN

JUDGEMENT

(1.) The facts leading to these two appeals are these: One Trigunanand Upadhya died on 26 July 1915, leaving a will of the same date. His two granddaughters, Babui Rajeshwary Kuer and Babui Bhagwati Kuer (daughter's daughters) obtained, on 4 June 1921, an order for grant to them of letters of administration of the estate of the deceased. It appears that at that time under some previous order of the District Judge the properties were in the possession of the Court of Wards who was asked to pay the court-fee payable on the letters of administration. On 26th November 1921, the Collector of the District representing the Court of Wards replied that he was not prepared to pay the court-fee. It seems that the two ladies then executed, a mortgage-deed in favour of Bindeshwari Saran and Harihar Saran, the principal respondents in these two appeals for a sum of Rs. 10,000 mortgaging, the properties of the estate. The object of the loan as mentioned in the mortgage-deed was the payment of the court-fee which amounted to Rs. 9,636 the balance was stated to have been taken for costs of the execution of the document and its registration and for some sundry expenses. This deed is dated 19 December 1921, and the court-fee was paid in Court on 21 December 1921, and letters of administration were issued on 3 January 1922. The mortgage was not redeemed and the mortgagees, viz. Bindeshwari Saran and Harihar Saran, had to institute a suit for enforcement of that mortgage (mortgage suit No. 119 of 1928), which was decreed on 25 July 1930, and the decree was made absolute on 25 July 1931. Thereafter Bahuria Ramsakhi Kuar, widow of the testator, brought a suit for a declaration that the mortgage created by the two ladies, Rajeshwari Kuar and Bhagwati Kuer, was not binding upon the estate of her husband and that the mortgagees were not entitled to sell the mortgaged properties of the estate in execution of their decree and for a permanent injunction against them not to do so. Her case was that the court-fee was paid by the two ladies after pledging their ornaments. The learned Subordinate Judge who heard the suit, though he practically dismissed it, has in form passed a decree that the plaintiff. Bahuria Ram Sakhi Kuar was entitled to redeem the mortgage. The term of the decree runs thus: The suit is decreed. The plaintiff will be entitled to pay to defendants 1 and 2 (the mortgagees) the money due to them, under the decree, passed by the Court in Suit No. 119 of 1928, within six months from this date.

(2.) I am unable to appreciate this order, nor can I appreciate his observation that the plaintiff (Ramsakhi Kuar) was entitled to avoid the mortgage only by paying the mortgage decree money on the amount which has already been realized by the mortgagees. Everybody affected by a simple mortgage decree can avoid its effect by paying up the decree. For this no decree of a Court is needed. The only effect of this decree was that the period of grace was extended but it was of no practical advantage to the plaintiff Bahuria Ramsakhi Kuer and she has preferred an appeal against this decree and it is First Appeal No. 4 of 1934. The only point to be determined in this appeal is whether the mortgage decree obtained by the principal respondents, viz., Bindeshwari Saran and Harihar Saran is binding upon the estate of the testator Babu Trigunanand Upadhaya.

(3.) Coming to Miscellaneous Appeal No. 149 of 1934, it seems that the two ladies, Rajeswari Kuar and Bhagwati Kuar to whom letters of administration were granted did not perhaps carry on the administration properly. Therefore, the letters of administration were revoked and fresh letters of administration have been granted to Babu Sukhdeo Prasad, an Advocate of the Court. Babu Sukhdeo Prasad was added in the execution proceedings of the mortgage decree as a judgment-debtor. He objected under Section 47, Civil P.C., to the execution being taken out against the estate on the ground that the two ladies had no power to mortgage the property of the testator's estate they not being then the administrators appointed by the Court, and that even had they been properly appointed administrators, they had no power to mortgage the properties without the sanction of the Court and further that the two ladies were not sued in their capacity as administrators of the estate and therefore the decree was not executable against the estate and the new administrator ought not to have boon added as judgment-debtor. The learned Subordinate Judge has overruled these objections and the administrator has come up in appeal (Miscellaneous Appeal No. 149 of 1934). We are informed that since then the bulk of the decretal money has been realized and a very small portion, something like about Rs. 1,400 only, is still to be realized. The question to be decided in this miscellaneous appeal is also practically the same as in the first appeal, viz., whether the mortgage decree obtained by the two respondents, Bindeshwari Saran and Harihar Saran, is binding on the estate, and if so, to what extent the execution could legitimately be taken against that estate.