BHIMASINGH KISHORSINGH Vs. FAKIRCHAND NANDLAL

JUDGEMENT

(1.) THE action out of which this appeal has arisen was brought by Seth Nandlal and Seth Mojilal, now deceased and represented by Champalal son of Seth Mojilal, respondent 1, for enforcement of a mortgage dated 12th October-1928 (EX. P-H) executed in their favour by Rao. Kishoresingh, mortgaging thereunder full proprietary rights in mauza Selda which he held in maufi rights. It is common ground that on, Rao Kishoresingh's death in 1980, this village along with other property passed to the appellant, Ram Bhimsingh by right of primogeniture. Out of 21 defendants in the suit, Ram Bhimsingh who was defendant, was the only contesting defendant the other defendants being alienees from Ram Kishoresingh or their legal representatives supported the plaintiffs on the' main point in contest. It is not disputed! that the property in Rao Kishoresingh's family passed by the rule of primogeniture and in fact the point is settled by the decision of their Lordships of the Privy Council reported in Kishore Singh v. Mt. Gahenabai A.I.R. 1919 P.C. 100.

(2.) THE grounds on which defendant 1 opposed the present suit were briefly as follows: (a) That the mortgaged property, mauza Selda was a part of the Bhamgarh Estate which was the: ancestral property in the hands of Rao Kishoresingh and this estate was impartible and inalienable by virtue of the. original grant as well as by the ancient family custom of the mortgagor's family, (b) The alleged consideration of the mortgage in suit was-a personal debt of Rao Kishoresingh and was not binding on the property in the hands of the; defendant, who got it by right of primogeniture. It was also averred that the mortgage was not. justified by legal necessity as the mortgagor had no necessity to borrow having in his hands sufficient funds from income from the property and from Government pension, (c) That the defendant was not aware of the fact of the mortgage and he therefore denied the execution, attestation and consideration of the, mortgage in suit.

(3.) IN the defendant's oral statement recorded on 4th January 1939 he admitted that in 1865 a sanad relating to this property was granted by the Government of India (British Government) to Rao Daulatsingh, the defendant's predecessor, granting full power of alienation by gift, sale, adoption or otherwise. It was, however, contended that this could not affect the pre-existing family custom against alienability. The plaintiffs, on the other hand, pleaded alternatively' that even if there was any custom as alleged it ceased to exist after the grant of 1865 and also by the conduct of Rao Kishoresingh, the mortgagor.