GAURI SHANKAR MISIR Vs. KAMLA PRASAD MISIR

JUDGEMENT

(1.) The plaintiffs claim to be the reversionary heirs of one Gaya Prasad Misir, who died leaving two widows Musammat Jasoda Kunwar and Musammat Bindhachal Kunwar. He had a brother Mangla Prasad, who had died before him, leaving a widow, Musammat Sheorani Kuar.

(2.) Gaya Prasad was indebted to a person named Kamta Prasad, who obtained a decree after his death against his widows on the 5 September 1908. In execution of that, decree Kamta Prasad got 150 maunds kham of grain in the possession of the widows attached on the 17 July 1909. It is not suggested that the grain attached was the produce of the time of Gaya Prasad. Gaya Prasad bad, in fact, died over a year earlier. The widows paid up the decretal money by borrowing Rs. 400 from Gauri Shankar and executing a mortgage bond for that amount in his favour and the question for consideration is whether that mortgage- bond was made for valid necessity and was binding on the reversioners.

(3.) The Trial Court found that it was binding on the reversionary heirs of Gaya Prasad and that the rate of interest mentioned therein was not excessive. The lower Appellate Court, however, found that though the widows were under no obligation to use any portion of the usufruct of their husband's property in payment of the debt, it was an act of "sheer improvident waste" on their part to mortgage property which, judging by the valuation of the suit, was worth Rs. 3,000 to pay off a petty debt of Rs. 400 bearing interest at Rs. 1-8 0 per cent, per mensem with yearly rests. It, therefore, proceeded to declare that the alienation was not supported by legal necessity except to the extent of the principal money and that the mortgagee was not entitled to claim any interest on the same.