DHONDAPPA NARAYANAPPA Vs. MT. KASABAI

JUDGEMENT

(1.) THIS case is, in my opinion, a very simple one. The two defendants Kasabai and Badhabai executed a mortgage in favour of the plaintiff. The plaintiff now sues upon his mortgage. Kasabai admitted the claim. Radhabai resisted on two grounds: one, that the mortgage was without consideration and two, that she bad no power to mortgage because the property was inherited from her mother and so she could not mortgage without her husband's consent which consent was not obtained.

(2.) THE first Court found that there was consideration and that finding of fact was not questioned either in the lower appellate Court or before as. That is therefore now final.

(3.) I would allow the appeal and decree the claim against Radhabai as well on that short ground As regards costs, I would allow the plaintiff his costs in the first Court but not in the lower appellate Court or here because in neither Court did he take this simple point. It was raised by us here and we heard the learned Counsel for. Radhabai on it. All he contended was that there was no estoppel because both sides knew the facts and the law. But there is, in my opinion a fallacy in this contention because the agreement is to give and take such title as Radhabai has. Accordingly, here and in the lower appellate Court I. would direct each party to bear its own costs. Sen, J.