GOHALI SAHA Vs. DEBENDRA NATH MUKHERJEE

JUDGEMENT

(1.) This appeal arises out of a suit for recovery of the plaintiffs dues amounting to Rs. 1,110- 8-0 on a mortgage bond executed by the father of the defendants, one Luski Shaha, in favour of the plaintiffs. The defence was that the defendants and their father were members of a joint Hindu family governed by the Mitakshara law, that the mortgaged property was the paternal property of the defendants father and the defendants had a vested right therein, and that Luski Shaha, therefore had no right to create a mortgage alone on the property in excess of his own share. The trial Judge held that the mortgaged property was the paternal property of Laski and that the defendants had a vested right therein. He held also that there was an antecedent debt of Rs. 335 which has paid off with the consideration money received by Luski for the bond in suit and that the mortgaged property was liable for satisfaction of that amount only; and on these findings the trial Judge decreed the plaintiff's suit in part. On appeal by the plaintiffs the learned District Judge came to the conclusion that the mortgaged property was not ancestral, but the personal property of Luski and so his sons; the defendants had no vested right therein; and on his finding the lower appellate Court gave a full decree to the plaintiffs. The defendants have appealed to this Court.

(2.) There were, two points taken before us : firstly it was said that the lower appellate Court was wrong in giving a full decree to the plaintiffs as by doing that it allowed to the plaintiff more than what the plaintiffs had asked for in their appeal; and secondly, it was contended that the learned District Judge was in error when he came to the conclusion that the mortgaged property was not ancestral but only the personal property of Luski.

(3.) The first point, which is a short one, can be disposed of quickly. The contention of the learned advocate on this point was that when the lower appellate Court gave a full decree to the plaintiffs it allowed them by that decree Rs. 775-8-0 (Rs. 1110-8-0, the total amount claimed, minus; Rs. 335, the amount of the antecedent debt), whereas the plaintiffs had valued their appeal at Rs. 559-2-0 only. This contention of the learned advocate was obviously based on misconception and a misreading of the order passed by the trial Judge. The trial Judge, it is true, found that the amount of the antecedent debt was Rs. 335 only. But in the decree that he made, in favour of the plaintiffs he allowed the plaintiffs not only Rs. 335, but the interest as well on that amount calculated at the rate in the bond. If the total of Rs. 335 and the interest thus calculated would be deducted from the total amount claimed, Rs. 1,110- 8-0, there would (sic) a balance of Rs. 559-2-0, the amount at which the plaintiffs had valued their appeal.