BAM JASSA KUNWAR Vs. SAHU NARAIN DAS

JUDGEMENT

(1.) This appeal has been filed against the decree passed by the learned Special Judge, First Grade, Aligarh, under Section 14, U.P. Encumbered Estates Act. Rani Jassa Kunwar is the widow of Raja Sheoraj Singh who had considerable zamindari property in the district of Moradabad. The Raja had died indebted. He had executed a mortgage for a sum of Rs. 40,000 on 25 September 1920 in favour of Sahu Gulab Das and others. This, mortgage carried interest at eight annas per cent. per mensem, compoundable six monthly. On 17 August. 1923 he had executed a second mortgage for Rs. 12,000 in favour of the same creditors. The interest reserved in the second mortgage was rupee one per cent, per mensem with six monthly rests. After the death of the Raja, the properties left by him were inherited by Rani Jassa Kunwar, as a Hindu widow. On 18 March 1931 Sahu Gulab Das and others filed a suit (No. 21 of 1931 in the Court of the Subordinate Judge, Moradabad) for the realisation of the amount due under the mortgage. The total claim was for Rs. 58,626-6-0. The Rani contested the suit on various grounds, which it is not necessary to set out here, but the suit was ultimately decreed on 28 April 1931 and a preliminary decree for Rs. 64,160-0-3 was passed in favour of the plaintiffs. Under the decree this amount was payable by 28 day of October 1931 and in default the decree-holder was entitled to apply for a final decree for sale. The decree carried, future interest at the rate of six per cent, per annum until realisation. The Rani made, certain payments and from time to time filed applications for postponement of the. preparation of the final decree on the ground that she was arranging to pay the decretal amount. Only one of such applications dated 9 April 1932, has been included in out printed record at p. 51. In this application she mentioned that she was prepared to pay a sum of Rs. 6000 by the month of June 1934 and prayed that further time be granted to her for payment of the balance by instalments. The reason given, for her inability to pay was the slump in prices of grain and scanty produce. Ultimately, however, no further extension was granted and the final decree was prepared on 5 January 1933. This final decree was for only Rs. 53,761 as some payments had been made after the preliminary decree. Having failed to gain any further time from Court, the case of the creditors is, that the Rani approached the creditors through her manager, Tika Ram, and on 12 January 1933 the mortgage deed, now in question, was executed for Rs. 53,761. It would be noticed that it was for the exact amount due under the decree which had been passed on 5 January 1933. The mortgage carried interest at ten annas per cent, per mensem with half yearly rests. The Rani in her deposition admitted that she had expected that she would be able to pay up this bond from the income of the property and it was therefore that she executed this fresh mortgage. It is clear that the Rani was doing her best to save the property from being sold and after she had failed to get further time from the Court she executed this mortgage so that her property might be saved and in the meantime it might be possible for her to pay up the amount from the income of the property.

(2.) On 5 September 1936, Rani Jassa Kunwar filed an application under Section 4, Encumbered Estates Act, before the Collector of Aligarh. In that application she mentioned the amounts due under the mortgages executed by her husband, and then added a note that the creditors had on the basis of those mortgages, filed a suit and obtained a decree and that they had on 12 January 1933 obtained a mortgage from her, a purdahnashin woman, by exercise of undue influence. The case was in due course sent to the learned Special Judge, First Grade, Aligarh, and the applicant, Rani Jassa Kunwar, filed a written statement before him under Section 8, Encumbered Estates Act, on 21 October 1936. In this written statement she followed the same procedure, that is, she mentioned the mortgage deeds executed by her husband and then added a note that on the basis of those mortgages the creditors had obtained a decree against her and then, by exercise of undue influence, had obtained from her the mortgage dated 12 January 1933. Sahu Gulab Das, the mortgagee, died on 19 December 1936, leaving four sons and a widow. A written statement was filed on their behalf on 2 February, 1937 in which they claimed that the mortgage dated 12 January 1933 was duly executed after mature deliberation and after consultation with her well wishers and Rani Jassa Kunwar was not entitled to go behind the same. They claimed that a sum of Rs. 70,331-12-9 was due to them up to 5 September 1936, on which date the Rani had filed her application under Section 4, Encumbered Estates Act, before the Collector of Aligarh. They also claimed pendente lite and future interest on this sum from 5 September 1936. The learned Special Judge on 14 July 1941 held against the applicant that the deed was obtained from her by undue influence and decreed the claim of Sahu Narain Das and others for Rupees 70,360- 13-6, with pendente lite and future interest at 3 per cent, per annum till realization.

(3.) Against that decree this appeal was filed by Rani Jassa Kunwar and by her two nephews (brother's sons), Subedar Singh and Ganesh Singh. Ganesh Singh having died during the pendency of this appeal the names of his sons were substituted. Subedar Singh and Ganesh Singh claimed that they were secured creditors under a mortgage dated 20 June 1931. Their names were included in the list of creditors in the application filed on behalf of the Rani under Section 4 as well as under Section 8, Encumbered Estates Act. They, however, did not put in their claim under Section 10, Encumbered Estates Act, till 23 March 1938, long after the time for making such claims had expired. They claimed a sum of Rs. 13,548 as due to them under the mortgage deed dated 20 June 1931. Sahu Narain Das and others representatives of Gulab, deceased, filed an objection, on 22nd September 1938, that the claim not having been filed within time must now he rejected. On 9 August 1940 the learned Special Judge passed an order condoning the delay, conditional on payment of Rs. 100 as damages to the pleader for the opposite party. This amount was paid on 24 August 1940 and it must be held that it was on that data that the claim of these creditors was actually registered. On 19 October 1940 the learned Special Judge recorded the statement of the pleaders for Subedar Singh and Ganesh Singh on one side and the pleader for Rani Jassa Kunwar on the other, and on the basis of those statements passed a decree for Rs. 12,756 in favour of Subedar Singh and Ganesh Singh with pendente lite and future interest at 3 per cent, per annum till the date of realisation. On behalf of the Rani the only plea urged by her counsel, Sir Tej Bahadur Sapru, is that the mortgage deed was executed under undue influence and was, therefore, not binding on her. Subedar Singh and Ganesh Singh's legal representatives were represented before us by Mr. Peare Lal Banerji who raised the point on their behalf that the execution of the mortgage deed was not proved according to law as against them.