RATANBAI KARSETJI SUNAVALA Vs. NARAYANDAS PRAYAGDAS

JUDGEMENT

(1.) This is an appeal from a decision of the First Class Subordinate Judge, Dhulia, passing a preliminary mortgage decree in favour of the plaintiffs for the payment of the mortgage money within six months, and directing that in default a final decree might be applied for for the recovery of the decretal amount by the sale of the mortgaged property.

(2.) The mortgage deed was passed by one Karsetji, who had died before the suit was brought, and the mortgagees sued his widow, his six sons and three daughters as his heirs. Only the defendants Nos. 3 and 10, that is to say one of the sons and one of the daughters, appeared through a pleader. The case was heard against the others ex parte. The third defendant admitted the suit bond, but contended that it had been executed by his father through undue influence, and was therefore void. He also pleaded that the mortgage-debt had been satisfied by virtue of a set-off of certain ginning charges said to be due from the plaintiffs in respect of cotton that had been ginned in the defendants factory. The tenth defendant denied knowledge of the suit debt, but prayed for instalments, in case it was proved. There was also an issue raised as to whether the plaintiffs were entitled to the interest claimed. The Subordinate Judge held the mortgage-bond was proved to have been executed by the deceased Karsetji; that defendant No. 3 had failed to establish that it was void on the ground of undue influence; and that the alleged satisfaction was not proved, and, in any case, would be an unascertained sum, which could not be allowed as a set-off in law.

(3.) In this appeal the main point taken is one that was not urged in the trial Court, viz., that the lower Court had no jurisdiction to pass the decree it did in view of the provisions of Section 190 of Act X of 1865, which has now been superseded by Section 212 of the Indian Succession Act 1926. This section says: "No right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted by a Court of competent jurisdiction." It is urged that no letters of administration have in fact been taken out in regard to the estate of the deceased mortgagor, although if one of those primarily entitled to take out these letters did not do so, it was open to a creditor like the plaintiffs to take them out, and that this is a suit to establish a right to sell part of the deceased's property under a mortgage; so that the suit is barred by the provisions of this section. I must remark that this seems to me rather a mean plea for the appellants to raise, because if anybody should have taken out letters of administration in regard to the estate of the deceased Karsetji, it was one of the defendants whose primary duty it was to do so, and they are virtually seeking to get a benefit from their omission to perform a duty, which on the face of it would lead to an inequitable result. No doubt it cannot be said that an omission to take out letters of administration is an actual wrong, so that the maxim "no man can take advantage of his own wrong" would apply. But it certainly is a case where the objection raised must be characterised as unconscionable and technical.