LAWS(PVC)-1936-4-58

RAGHUNANDAN SAHU Vs. BADRI TELI

Decided On April 16, 1936
RAGHUNANDAN SAHU Appellant
V/S
BADRI TELI Respondents

JUDGEMENT

(1.) This is a second appeal by the plaintiffs, and the defendants have filed cross- objections under Order 41, Rul 22, Civil P.C. The plaintiffs are the sons and grandsons of one Ram Bharose Sahu. They brought the present suit out of which this appeal has arisen for the recovery of Rs. 3706 on the basis of a mortgage executed by one Khedu Teli on 3 November 1913 in favour of Ram Bharose. Defendants 1 to 5 are the descendants of Khedu Teli and the remaining defendants 6 to 15 are subsequent transferees of the mortgaged property. It is not necessary to state in detail the various pleas taken in defence by the several defendants; it is sufficient for the purposes of the appeal and the cross-objections to say that they asserted that the mortgage was not binding on them, and they further pleaded that they had paid a sum of Rs. 300 on 26 December 1922, for which no credit was given by the plaintiffs in the suit. They also said that even if the mortgage be held to be binding on the defendants, the rate of interest entered in the bond, namely 9 per cent, per annum compoundable yearly was excessive, and Khedu Teli had no necessity to borrow money at such an exorbitant rate of interest. The details of the mortgage consideration of Rs. 3200 as entered in the deed consisted of the following items : (1) Rs. 1393 due on a simple money bond dated 16 January 1911, (2) Rs. 964-4-0 due on bahi khata accounts, (3) Rs. 176 due for ornaments pawned through Babua Teli, (4) Rs. 116-12-0 paid to the mortgagor on account of expenses of execution and other household expenses, and (5) Rs. 550 cash taken before the Sub-Registrar for paying some decretal amounts.

(2.) As regards the first item Courts below have held that this was an antecedent debt inasmuch as it was due on a previous simple money bond dated 16 January 1911 which in its turn was executed in lieu of an earlier bond, dated 4 February 1898 for Rs. 999. There is no controversy before us as regards the sum of Rs. 1393 which, from what we have stated before, is clearly an antecedent debt binding on the sons and grandsons of Khedu Teli. As regards the second item of Rs. 964-4-0, it is clear that this was due on bahi khata accounts ranging from the years 1909 to 1912 and, as such, this also constitutes antecedent debt and is binding on the defendants. As regards item 3 of Rs. 176, the finding of the Courts below is that no connexion has been shown between Babua Teli and Khedu Teli, and a debt incurred by Babua Teli cannot be binding on the descendants of Khedu Teli, even if the latter took upon himself the responsibility of paying the aforesaid debt. As to the fourth item of the mortgage consideration, namely Rs. 116-12-0, the position is that Rs. 40 has been considered by the Courts below to be sufficient to cover the expenses of Stamp and registration, but there is no evidence to show the legal necessity for the remaining item of Rs. 76-12.0, and that portion of the mortgage consideration has been held to be not binding on the defendants.

(3.) So far there is no difficulty, and the findings of the Court below are not open to attack in second appeal. The main controversy has centred round item 5 of the mortgage consideration, namely the sum of Rs. 550, taken in cash before the Sub- Registrar for paying certain decretal amounts. The case for the plaintiffs was that the decrees having been passed against Khedu Teli prior to the execution of the mortgage deed in question, the decretal debt constitutes an antecedent debt and, as such, the defendants as sons and grandsons of Khedu Teli are bound to pay the same. They produced four decrees of the year 1912 of the Court of the City Munsif against Khedu Teli, and it urged that the sum of Rs. 550 was taken by Khedu Teli for paying the said decrees. The defendants alleged that the decrees themselves showed that they were passed against Khedu Teli in favour of different persons in suits for damages for malicious prosecution, and the plea was that the debt was an immoral or an illegal debt. The law is that an antecedent debt of the father, grandfather or great-grandfather is binding on the son, grandson and great- grandson, unless the debt is an immoral or an illegal debt.