MONOSSEH JACOB MONOSSEH Vs. SHAPURJI HORMUSJI HARVER

JUDGEMENT

(1.) The plaintiff sues for the balance due on two mortgages executed by the defendant, (1) on the 5 June 1905 to secure an advance of Rs. 22,000 ; (2) on the 23 February 1900 to secure a further advance of Rs. 15,000.

(2.) After the suit was filed the plaintiff apprehending that defendant was not of sound mind obtained an order for the appointment of defendant's brother Sorabjee as guardian ad litem. It is now contended that the plaintiff cannot recover on the ground that the defendant when he executed the said mortgages was not of sound mind and that therefore he was not competent to contract within the meaning of Section 12 of the Contract Act.

(3.) Defendant's sister Bai Aimai died in October 1902 and under her will defendant became entitled to a legacy of Rs. 4,000 and a fifth share in the residue of her estate, which was sworn for purposes of probate at nearly four lakhs. This one-fifth share was the subject of the abovementioned mortgages. Defendant was present at the reading of the will and its terms were explained to him in detail a few days afterwards by Mr. Kola, solicitor for the executrices. He must then have become acquainted with the fact that a one-fifth share of the residue would amount to a very considerable sum, at least fifty or sixty thousand rupees. Defendant left school about 1892 and lived with his mother until her death in 1896. After that he lived with his sister Soonabai and apparently had never attempted to earn his own livelihood. His health was not good and in 1901 he had been examined by Dr. Baker and Dr. Eduljee Nusserwanji. From the evidence of his brother Sorabjee he appears to have been then suffering from general debility. In 1903 he went to live by himself in Mori Road Mahim and remained there till the beginning of 1906, when he went to live at the Taj Hotel. In December 1906 he was asked by the hotel management to leave and from that time until August 1907 when he was admitted on the application of Sorabjee to the Colaba Lunatic Asylum, there is no record of his having any settled abode. In January 1906 the defendant paid to the plaintiff Rs. 7,700 On account of the capital amount due on the first mortgage and continued to pay interest on both mortgages regularly up till September 1906. At the time the suit was filed in June 1907 interest was in arrears since September 1906 and the plaintiff was entitled to exercise his power of sale under the mortgage deeds. It was contended that the suit is premature and that it should not have been filed until the periods mentioned in the mortgage deeds for repayment of the principal amounts had expired, but it is obvious that if the terms of the contracts had been broken and the plaintiff was entitled to sell he was entitled to come to Court and ask for a decree.