MAHESHAR BAKSH SINGH Vs. RATAN SINGH

JUDGEMENT

(1.) THE suit in this appeal was brought upon a mortgage of a village called Sadhopur, in the district of Sitapur, part of the property of Thakur Munnu Singh, who died childless in 1874, leaving Umrai (or Umrao) Kunwar his widow. On his death she succeeded to his estate as his heir. The mortgage is dated July 12, 1884, and was executed by Umrai Kunwar. It states that she had borrowed Rs. 7000 from Thakur Partab Rudr Singh, Talookdar of Rampur, at an interest of 13 annas per cent, per mensem, payable in three years, in order to liquidate the debts due to bankers, and in lieu thereof had hypothecated the entire village Sadhopur, which Was in her proprietary possession and enjoyment without a co-sharer. The mortgagee Partab Rudr Singh died on October 18, 1885, and the appellant---the plaintiff in the suit---is his heir and representative. Umrai Kunwar died on February 14, 1887, and, an order for mutation of names having been made in favour of the defendants---one of whom is represented by the present respondents---as the heirs entitled on her death, they entered into possession of the estate. The question in this appeal is whether the mortgage is a valid charge upon the village after the death of Umrai Kunwar against the next heirs of her husband.

(2.) THE terms of it are consistent with its being such a charge; but they are also consistent with its having effect only during the widow's life. The District Judge decided this question in the appellant's favour, and made a decree that the sum due should be realized by attachment and sale of the village. This decree has been reversed by the Additional Judicial Commissioner, and the suit has been dismissed.

(3.) ALTHOUGH the suit here is not brought by the original mortgagee, the affirmative of the question whether the money was borrowed for a legitimate purpose is on the plaintiff who seeks 1 to have the mortgage enforced, and in proof of this he ought to produce sufficient evidence of the nature of the transaction. The evidence given was to the effect that when Munnu Singh died he was deeply indebted, and, his estate being taken into the charge of the Court of Wards, claims by mahajans to the amount of Rs. 65,000 were registered. The estate was under the management of the Court of Wards for seventeen months, and was then given up to the widow. No evidence was produced from the Court of Wards of the value of the estate or of the incumbrances upon it, nor did it appear that any endeavour had been made to obtain such evidence. One witness said that Munnu Singh's revenue from his estate was Rs.6500, and that debts which carried interest at the rate of 24 per cent, per annum were paid by borrowing money at 10 per cent. Other witnesses also spoke to this, and said that the estate was improved by the widow's management. Bhawani Singh, the brother of Umrai Kunwar, and said by one of the witnesses to have been her principal agent, was examined for the plaintiff. He said that during Munnu Singh's lifetime he assisted in the management of the estate; that he was indebted in his lifetime, at a guess, he should say in about Rs. 65,000; the Thakurain paid off debts borrowing from Rampur (meaning Partab Budr Singh); that by her management the estate was improved; that she borrowed at reduced interest to pay off debts carrying heavier interest; the creditors were attaching property in execution of decrees against her, and she therefore borrowed, and that the debts were incurred by the Thakur. On cross-examination he said that without looking at accounts he could not give the total of revenue; he could not state the Thakurain's monthly expenses; he could not give any idea of what should be her monthly expenses; attachment was made in his presence, he could not say for how much- Their Lordships are unable to believe that the witness could not give more precise evidence of the condition of the estate and the nature of the various loan transactions. There was no explanation of the non-production of the accounts. There was evidence of other witnesses that two or three days after the mortgage sued upon was executed mortgages to the amount of Rs. 5000 were paid with the borrowed money. All these mortgages appear to have been made in 1883, and in the four which are in the record Umrai Kunwar is stated to have borrowed the money and brought the same to her own use. There is no evidence connecting any of these mortgages with a debt of her husband, and so no ground for presuming that they were made for a legitimate purpose.