MT KULWANTA BEWA Vs. KARAM CHAND SONI

JUDGEMENT

(1.) This is an appeal in a suit to enforce a mortgage. The learned Subordinate Judge of Darjeeling who heard the suit made a preliminary decree for a sum of Rs. 53,275 with interest and costs, and defendants 1 to 3 who represent the interest of the mortgagors have preferred this appeal.

(2.) The mortgage which is Ex. 1 in the case (Part II of the paper book, p. 27) is dated 16th January 1922, and was for a sum of Rupees 16,000 carrying compound interest at the rate of 12 per cent. per annum. It was executed by the widow and two sons of one Perganram, a Hindu resident of Darjeeling governed by the Mitakshara School of Hindu law, who had died intestate on or about 8 January 1897. The widow, Mt. Kulwant Bewa, is defendant 1 in the suit, and defendant 2 is the younger son, Ramdas Prasad Kanoo, while the other son, Ramchatti Ram Kanoo, having died, his son Rambiswas Prasad Kanoo has been made defendant 3. The subject-matter of the mortgage was a valuable leasehold in Darjeeling comprising lands and houses known as Master Hall's Location held on a 99 years lease under Government commencing from 1862, which Perganram had acquired by purchase in 1886 by a conveyance Ex. C (Part II, p. l). The mortgage was taken in the name of a lady, Sm. Durgabati, who was the wife of one Lala Karam Chand Soni, plaintiff 1 in the suit. She died shortly after the mortgage on 22 May, 1922, leaving three sons as her heirs, and they have been made co-plaintiffs (plaintiffs 2 to 4). Defendants 4 and 5 in the suit are two alleged subsequent mortgagees. Two substantial grounds have been urged on behalf of the appellants : first, that the suit is not maintainable, and secondly, that the mortgage is not valid and enforceable, and in any case is not binding on defendant 3, Rambiswas. A point was also made regarding the calculation of interest but it was not pressed.

(3.) The first point arises in this way. It is said that plaintiffs 2 to 4 as sons and heirs of their mother Sm. Durgabati, the mortgagee named in the deed, not having taken out letters of administration or a succession certificate, Section 214, Succession Act, 1925, is a bar to their recovering a decree. The plaintiffs met this objection in anticipation in their plaint by making the definite case that the real mortgagee was Lala Karam Chand, plaintiff 1, and Sm. Durga- bati was a mere benamidar; the sons were joined as plaintiffs merely to avoid any possible objections. The learned Subordinate Judge has found in favour of the plaintiffs on the question of benami, and it is conceded that if this finding stands, it would be a complete answer to this particular objection. We have come to the conclusion that the learned Judge was right.