MT. JAIBAI Vs. REWARAM

JUDGEMENT

(1.) THE suit out of which this appeal arises was instituted by the respondent Rewaram on the basis of a mortgage executed on 25th February 1921 by the respondents Mt. Punabai and her husband Budhelal in consideration of a sum of Rs. 4,999 said to be advanced by him on the security of a house which belonged to one Karelal, and on his death on 14th November 1917, devolved on his daughters Mt. Punabai, Jaibai, Muliabai and Betibai. Mt. Punabai and Jaibai were granted letters of administration by the District Judge, Saugor. by an order dated 28th April 1919. Mt. Jaibai however took no part in the administration of the estate. While the estate was thus under the administration of Punabai she is said to have borrowed various loans from plaintiff in order to satisfy debts which deceased Karelal had left unpaid and for which his creditors had instituted suits against the heirs and obtained decrees against them. The following are the amounts and dates of the loans advanced by the plaintiff: Amount Date Rs. 999 6-6-1919 " 1,000 7-7-19 " 949-5-6 19-9-19 __________

(2.) ,938-5-6 60-10-6 Due on account of interest on Rs. 1,999 up to 19-9-19 __________ Rs. 2,999 For this a mortgage, dated; 19-9-19, Exhibit P-2, was given by Mt. Punabai in respect of her 8 annas share in the house her husband Budhelal having also joined in the execution. Amount Date Rs. 800 10-12-19 " 551-12-3 25-2-21 " 533-3-9 Interest on Rs. 2,999 up to 25-2-21 " 115-0-0 Interest on Rs. 800 up to 25-2-21 __________ Rs. 4,999-0-0 2. On 14th September 1920 Mt. Punabai, who is Defendant No. 1 in the case applied to the District Judge, as per Exhibit P-5, for permission to mortgage the house in order to raise a loan of Rs. 6,000 to satisfy debts incurred by her for payment of two decrees passed against the assets of deceased Karelal and of other debts due to other creditors who were pressing for payment and for making certain repairs to the house. This application was granted by an ex-parte order dated 18th September 1920 (Exhibit P-6).

(3.) THE defence so far as it is relevant for the purposes of this appeal may be briefly summarized as under : That the mortgage in suit was not proved to be for consideration advanced on the strength of the permission granted as per Exhibit P.6; that it was not for legal necessity; that the mortgage was not valid and did not affect' the estate purported to be mortgaged thereunder particularly because the permission to mortgage was obtained by fraudulent concealment and misrepresentation of relevant facts and behind the back of the appellants; that the interest provided by the mortgage was excessive and could not be decreed in its entirety. The lower Court framing the necessary issues recorded its findings on issues Nos. 3 and 4 (a) which for the sake of reference are reproduced here. 8. Can the Defendants 3 and 4 raise the question of legal necessity in spite of the permission granted by the District Judge ? If so, was the mortgage justified by legal necessity ? 4 (a) Can Defendants 3 and 4 question the validity of the order granting the permission on the ground that it was obtained by fraud and misrepresentation ? (b) If so, was there fraud and misrepresentation as alleged ?