MT. SHANTA BAI Vs. NARAYANARAO AMRITRAO

JUDGEMENT

(1.) THIS is a plaintiff's appeal arising out of a suit brought to enforce a mortgage. On 2lst October 1923, Amritrao borrowed Rs. 2,000 and executed the mortgage in suit (EX. P.1) in favour of, (1) Mt. Narayanibai, the widow of Seth Motilal, (2) Mt. Rampyaribai, the mother of Seth Motilal, and (3) ' Laxaminarayan, adopted son, a minor under the guardianship of Mt. Narayanibai.' The suit was brought on 20th. February 1935 by which time Amritrao and Mt. Rampyaribai were dead. It was brought in the names of Mt. Narayanibai and Laxminarayan, who had by then come of age, against the son and four daughters of Amritrao. Three other persons were impleaded as defendants as they were said to be in possession of a part of the mortgaged property, but they did not appear.

(2.) THE contesting defendants took the usual pleas that the mortgage deed was not validly executed and attested, that there was no legal necessity for the loan, that there was undue influence, that the interest was excessive, that there were other repayments besides the repayment of Rs. 500 admitted in the plaint, and that one Mt. Godawaribai was a necessary party. All those contentions have now been abandoned except the contention that the interest was excessive and that Mt. Godawaribai was a necessary party.

(3.) THE mortgage deed was executed by Amritrao in favour of Laxminarayan, amongst others, and we think it is clear that it was not open either to Amritrao or to his successors-in-interest to deny his mortgagees' title. It is well established that a person named as mortgagee in the deed can sue on the mortgage, whether he has any interest in the mortgage or not: see Sachitananda Mohapatra v. Baloram Gorain 24 Cal. 644, Yad Ram v. Umrao Singh 21 ALL. 380 and Subramanian Chettiyar v. V.K. Shivalker A.I.R. (24) 1937 Rang. 508. The argument now, however, is that the plaintiff is not really Laxminarayan, son of Seth Motilal, but Sheonarain, son of Mathuralal, as was found by the lower appellate Court, and has therefore no right of suit. Mr. Sen for the appellant has contended that this Court is not bound by this finding of fact because the burden was wrongly placed on the plaintiff in view of the admission in the mortgage deed and that inadmissible evidence, such as the genealogical tree (Ex. D.-15), has been wrongly admitted. We think it unnecessary to decide the question whether the plaintiff is the validly adopted son of Beth Motilal, as we have no doubt that it is not open to the defendants to question the title of their mortgagees.