SURESH CHANDRA DAM Vs. SMMARANI DASSI

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for enforcement of two mortgages purported to have been executed by defendants 1 and 2. One of these mortgage bonds in suit was dated 19 July 1926, and it was in favour of the father of the plaintiff; the other mortgage bond dated 15 August 1927, was in favour of the plaintiff himself; and the plaintiff prayed for a mortgage decree on the footing of the two afore said mortgages. The claim in suit was resisted by defendant 2, the wife of defendant 1, on the ground that she had no knowledge of the contents of the two documents in suit, and that she had not executed them. On the pleadings of parties, the question for decision in the case was whether defendant 2 executed the mortgage bonds with full knowledge of the terms of the bonds and with full knowledge of the transactions. The decision on that question arrived at by the learned Subordinate Judge in the trial Court was against the plaintiff and the plaintiff's suit was dismissed, so far as defendant 2 was concerned, on the ground that defendant 2 did not willingly or knowingly execute the bonds, and that defendant 2 was not liable for the loans on the bonds. There was a decree passed by the trial Court against defendant 1 alone for the money lent under the bonds in suit.

(2.) The plaintiff appealed to this Court; and it was urged in support of the appeal that on the evidence on record the Court below should have held that the plaintiff-appellant was entitled to a mortgage decree against both defendants 1 and 2, the mortgagors. The materials on the record have received our careful consideration. Before however dealing with the evidence in the case, we consider it necessary to refer to the proceedings before the Court below, leading up to the filing of the written statement by defendant 2 in the suit, which call for special notice in view of the position that the mortgage bonds in suit were executed jointly by the husband, defendant 1, who was Gharjamai and the wife, defendant 2, to whom the properties mortgaged belonged. The plaint in the suit was filed on 24 June 1932; there was appearance in the suit by both the defendants by one and the same vakalatnama on 21 July 1932, the same pleaders re-presenting them both. On the same date an application was filed on behalf of the two defendants, by one of the pleaders who accepted the joint vakalatnama, praying for time for filing written-statement after drafting the same on procuring necessary papers. Application for time for filing written-statement was again made by the two defendants jointly on 28 July 1932, on stating that necessary papers had not been procured till then. The third application for time for filing written-statement and after procuring papers was made on behalf of the defendants "owing to the physical indisposition of the defendant who looks after the case," and the written-statement that was ultimately filed on 23 August 1932, was one by defendant 2. The material averments of fact made in that written-statement were those contained in Para Section 10 and 11 of the same, which are set out below: 10. About six years before, defendant 1 informed this defendant, who has no knowledge of the affairs of the world, is inexperienced and is a Pardanashin woman, that she would have to execute a document as he was in need of some money and if necessary defendant 1 would also have to put signature to the said document. A few days after that defendant 1 again came and informed her that this defendant would have to go to Court and put her signature there to a document. This defendant accordingly went to the Registration Office in a carriage drawn by horses and sitting in that carriage she put several signatures on two occasions. This defendant never went to the house of the plaintiff and never signed any document there. This defendant does not know to read and write at all. She can only sign her name with great difficulty. No document was read over to this defendant by any one nor did this defendant put her signature after knowing and understanding the contents of the document. The plaintiff or his father did not pay any money to this defendant. This defendant did not obtain any money on the basis of that document. 11. One year after the above, defendant 1 told this defendant that she would have to go to the Registration Office again as she did last year and to sign her name there. Accordingly this defendant went to the Registration Office in a carriage drawn by horses and put several signatures sitting in that carriage on two occasions. This defendant never signed any document at the house of the plaintiff. Nobody read over any document to this defendant, nor did she put her signature after knowing the contents of any document. The plaintiff did not pay any money to this defendant nor did she receive any money on the basis of any document. The bonds in suit are not bona fide documents so far as this defendant is concerned.

(3.) It was with reference to the aforesaid statements that the points for decision in the suit, relating to knowledge of the mortgage transaction question, the execution of the same by defendant 2 were raised. The filing of a written statement by defendant 2 alone repudiating liability under the mortgages in suit in the circumstances cast a doubt as to the bona fides of the defence to the plaintiff's suit, and the circumstances to which reference have been made above, go to indicate community of interest so far as the plaintiff's claim under the mortgages was concerned, and in our judgment throws a great deal of light on the defence ultimately taken up by one of the defendants, resting upon grave aspersions on the other defendant, the husband.