JAI NARAIN LAL TANDON Vs. LALA BECHOO LAL

JUDGEMENT

(1.) This is a defendants appeal arising out of a suit for enforcement of a mortgage. The mortgage deed is dated 22 August, 1919 and was executed for Rs. 2200 by Mt. Basanti Bibi, defendant 6, purporting to act as guardian of defendants 1 to 5. Actually Jai Narain Lal, defendant 1, was sui juris at that time. On 8 July 1919, Mt. Basanti Bibi who is the mother of defendants 1 to 5 had applied to the District Judge to be appointed guardian of her minor sons, defendants 2 to 5, and on the same day she was duly appointed. There is a finding of fact that defendant 1 had attained majority at the date of the mortgage deed in suit and the point is not in controversy before us. Mt. Basanti Bibi, defendant 6, is the wife of one Manni Lal, but it was the mother and not the father who was appointed guardian by the District Judge. The rate of interest stipulated in the mortgage bond was ten annas per cent per mensem with six monthly rests and the claim was for Rs. 4776-3-6. All the defendants contested the suit. Defendant 6 alleged that her husband Manni Lal was a man of extravagant and licentious habits, that the plaintiff's father had been in the service of Manni Lal, that the plaintiff had Induced defendant 6 to execute a fictitious bond in his favour with a view to save the property of the minors from her husband's unlawful debts and on the understanding that he would derive no advantage from the transaction, that she was under no necessity to borrow money, that no consideration passed and that the plaintiff did not possess the means to advance a sum of Rs. 2200.

(2.) Three written statements were put in on behalf of the other defendants, but their substance was more or less the same formal execution of the bond in suit was denied and it was alleged that the instrument was fictitious and ineffectual, that no consideration passed, that the mortgage bond was not executed for any lawful necessity or for the benefit of the family; and finally it was pleaded by all the defendants that the mortgage bond in suit had been executed by defendant 6 without having obtained the permission of the District Judge and that it was therefore void. Jai Narain Lal, defendant 1, further pleaded that he was sui juris at the date of the execution and that for this reason also the mortgage bond was not binding upon him. It will be observed that, apart from a vague allegation in the written statement of defendant 6 to the effect that the mortgage bond was executed to protect the property from her husband's creditors, the written statements did not disclose how or why or in what circumstances a fictitious bond was executed or as to who was in possession of the property. As the case developed at the trial, the following further allegations were disclosed. On behalf of the plaintiff it was said that Manni Lal had squandered the ancestral patrimony and that the house which was the subject-matter of this mortgage had passed into the hands of a man named Paras Ram. Subsequently, a dispute arose between Paras Ram on the one hand and Manni Lal and his sons on the other and the matter was referred to the arbitration of three gentlemen. In November 1918 the arbitrators gave their award to the effect that if either Mt. Basanti, defendant 6, who is the wife of Manni Lal or Mt. Titto Bibi, who is the mother of Manni Lal, paid a sum of Rs. 2000 to Paras Ram, within a year with interest at 12 annas percent, per mensem, Paras Ram would re-transfer the house to the sons of Manni Lal, i.e. to defendants 1 to 5. On 20 August 1919 Mt. Basanti Bibi agreed to borrow Rs. 2200 from the plaintiff, out of which sum an amount of Rs. 2053 was to be paid to Paras Ram. Next day Paras Ram executed a sale deed in favour of the sons of Manni Lal and On the following, day, i.e. on the 22 August, 1919, Mt. Basanti Bibi executed the mortgage bond in suit.

(3.) On behalf of the defendants it was denied that there had been any dispute between Paras Ram on the one side and Manni Lal and his sons on the other. It was said that the house had been fictitiously transferred to Paras Ram in order to save it from the creditors of Manni Lal and it was subsequently agreed that Paras Ram would re-transfer the house, without receiving any consideration, to the sons of Manni Lal. It was agreed that a sale deed and a mortgage deed should be executed ostensibly for consideration, in order to give a colour of genuineness to the trans, action, but actually no consideration passed. The reason why the plaintiff had agreed to this arrangement was that his father had been in service of Manni Lal and so there were confidential relations between them. This defence ignores the arbitration proceedings and award.