RAMJI Vs. KOMAN DAS

JUDGEMENT

(1.) THIS appeal arises out of a suit in which the plaintiff claims that the defendant No. 1 might be ordered to render correct accounts of the profits of certain property and that upon the taking of those accounts the document, dated 4th August 1910, should be held to be valid only for the amount that should be found due on taking of the accounts. The circumstances are shortly as follows. The plaintiff is one of the three sons of one Tipsi. Defendant No. 2 is the widow of Tipsi and mother of the plaintiff and the defendants Nos. 3 and 4 who are still minors. Defendant No. 1 is the mortgagee under a mortgage, dated the 4th of August 1910, executed by Musammat Gopi as mother and guardian of the plaintiff and of his brothers, defendants Nos. 3 and 4, under authority granted by the District Judge. It appears that Koman Das, defendant No. 1, held 8 usufructuary mortgages. One of these was executed by one Musammat Unku as well as by Tipsi. Musammat Unku was the widow of a brother of Tipsi. There were two other documents, one for Rs. 1,200 and one for Rs. 600, which were executed by Musammat Unku alone. As early as 1906 Musammat Gopi had been endeavouring to raise money to pay off the debts left by her husband Tipsi. She presented her first application for leave to make a mortgage for Rs. 18,000 on the 24th of August 1906. Rs 14,000 of this 18,000 was estimated as the debt due to the defendant No, 1. The remaining Rs. 4,000 was supposed to be due to one Baiju. A draft was put up before the Judge who authorised the raising of a loan of Rs. 18,000. Nothing appears to have beer done and on the 18th of November 190? Musammat Gopi presented a further application in which she stated that the person who was about to lend the money had backed out of his arrangement. Still the money was not raised and on the 2nd oi August 1910. Musammat Gopi made a third application to the Judge in which she stated that the defendant No. 1 was ready to advance the money but only on the terms of a simple mortgage being made. A draft was put up along with the application. The Court granted the application and on the 4th of August 1910 the mortgage was executed. It was in the form of a simple mortgage, the principal sum being Rs. 17,000 and the interest being 10 annas per cent, per mensem. The document itself sets forth that a sum of Rs. 17,000 was secured. The account of the amount due to the defendant No. 1 is mentioned. THIS amount was arrived at by including the amount of the two bonds executed by Musammat Unku alone and the amount of decree, and in the body of the mortgage it is stated that in order to avoid disputes the sum of Rs. 2,000 is omitted. THIS Rs. 2,000, as appears from the last clause of the mortgage, included the Rs. 1,200 and Rs. 600 being the principal sums due on the bonds executed by Musammat Unku. The document was duly registered and from the certificate of the Registrar it appears that Musammat Gopi admitted all the consideration, but stated that she did not admit the two documents executed by Musammat Unku. The document itself and the circumstances of the case do not in any way suggest fraud. What is stated in the bond is quite clear and easy for any one to understand. There was no particular hurry about carrying the matter into execution, and it would rather seem as if Musammat Gopi was glad to be able to get defendant No. 1 to consolidate his claims and enable her to pay off the other debts. It has been suggested & the argument that the fact that part of the consideration was the sum of Rs. 4,500 secured by the bond, dated the 18th of March 1891, itself shows that the consideration was invalid to the extent of Rs. 2,250, THIS suggestion is based on the fact that this bond was executed by Musammat Unku as well as by Tipsi. We are, of course, unaware what were the relations between Musammat Unku and Tipsi. If Tipsi and his brother were joint Musammat Unku would have nothing to say to the debt or to the property, but still her name may have been recorded for the satisfaction of the mortgagee. However this may be and whether Tipsi and his brother were joint or not, the minors property was liable for the whole Bs. 4,50G and, therefore, there was nothing improper in making the whole sum secured by the bond part of the consideration for the fresh mortgage. We merely mention this to show that on the face of the transaction there does not appear to have been any fraud or sharp practice. It was contended on behalf of the appellant that the Court below ought to have allowed them to go into evidence and prove their case, no matter how improbable it might appear to the learned Judge. THIS, no doubt, might be a good plea if we could see that the plaintiff specifically alleged fraud, which he was ready to prove. Reading the plaint as a whole, it would appear as if the main ground of complaint was that the defendant No. 1 had not rendered an account of the profits he had received prior to the execution of the mortgage of August 1910. THIS, of course, would not amount to fraud. The only specific allegation of fraud is contained in the 18th paragraph of the plaint. There it is said that the defendant No. 1 fraudulently caused the debt due from Musammat Unku to be entered as consideration for the bond. If this vague allegation refers to the fact that the first item in the details of consideration was the bond of the 18th of March 1891, which we have already stated to have been executed by Musammat Unku as well as Tipsi, the allegation has no foundation and we have already stated the reason why, namely, whether or not as between Tipsi and Unku, Musammat Unku was liable for half the debt, the property of the minors was nevertheless liable. If in the allegation in the 18th paragraph it is meant to refer to the two bonds which were executed by Musammat Unku alone, then the allegation is also without foundation because the amount of these two bonds had been omitted from the consideration for the bond. In our opinion, the plaintiff alleged no fraud entitling him to go into evidence to re-open the accounts which were settled at the time the mortgage was executed. We think the decree of the Court below was correct and we dismiss the appeal with costs, including in this Court fees on the higher scale.