SHIBA LAKHAN BHAKAT; CHOWDHURY PULIN BEHARY MASANTA Vs. SRIMATI TARANGINI DASI AND CHOWDHURY PULIN BEHARY MASANTA; SHIBA LAKHAN BHAKAT AND SRIMATI TARANGINI DASI

JUDGEMENT

(1.) The present appeals arise out of a suit brought by Chowdhury Pulin Behari Mosanta, the appellant in cross-Appeal No. 964 of 1906, against Shib Lakhan Bhakat, the appellant in Appeal No. 952 of 1906, as the principal defendant and one Tarangini Dasi as defendant No. 2. The suit was to obtain a declaration that a certain mortgage bond alleged to have been executed on the 23 June 1899 by Tarangini Dasi in favour of the defendant No. 1, Shib Lakhan Bhakat, and the decree obtained on that bond in suit No. 47 of 1904 were void and ineffectual and not binding at all on the plaintiff and for other reliefs. The plaintiff is the adopted son to Tarangini Dasi, the defendant No. 2. It appears that, after the death of Chowdhury Mohendra Nath Masanta, the husband of Tarangini Dasi. Tarangini took possession of his estate as executrix under a Will executed on the 10 Magh 1293, corresponding to 22 January, 1886. Under that Will, Tarangini was appointed executrix of the estate and was given power to adopt a son. She afterwards adopted Pulin Behari Mosanto, the plaintiff in the present suit. After the death of her husband, Tarangini appears to have borrowed money on a mortgage bond from the defendant No. 1, Shiba Lakhan Bhakat, and executed a bond in his favour on the 23 June 1899. The defendant No. 1, brought a suit on that bond and obtained a decree on the 11 of April 1904. Tarangini Dasi contested that suit and appeared to defend it as the executrix of the estate of her deceased husband. The result of that suit was that the mortgagee obtained a decree for sale of the mortgaged property in satisfaction of his mortgage-debt. There was no appeal against the decision in that mortgage suit which, therefore, became final. The defendant, Shiba Lakhan Bhakat, afterwards took out execution of his mortgage-decree and the 18 November, 1904, was fixed for sale of the mortgaged property. The present suit was instituted on the 18 November 1904.

(2.) The main contention on behalf of the plaintiff, who is the adopted son of Tarangini was that Tarangini had executed the mortgage bond in favour of the defendant No. 1, without taking any consideration, that Tarangini had no right, under the terms of the Will, to alienate or create any lien upon the property left by her husband Mohendra Nath Mosanta deceased and that, if she had done so, the same would not be binding on the adopted son. The Court of first instance found in favour of the plaintiff and gave him a decree for the full reliefs sought. On appeal, the lower appellate Court has modified the judgment and decree of the Court of first instance and has given a decree to the following effect, namely, that there should be a declaration that the property covered by the mortgage would be sold if the plaintiff did not pay to the mortgagee, the decree-holder, the sum of Rs. 770-12-2, together with interest at six per cent. per annum from the date of the mortgage-bond, that is, the 10 Assar 1306, till realization and that if that money was not paid, then the mortgaged property would be sold.

(3.) The defendant, Shiba Lakhan Bhakat, has preferred Appeal No. 952 and his contention is that the decision of the lower appellate Court cannot be affirmed and that the whole suit of the plaintiff should have been dismissed. The plaintiff, on the other hand, has brought a cross- Appeal No. 964 contending that the District Judge has erred in declaring that the defendant No. 1 had a charge on the mortgaged property to the extent of Rs. 770-12-2 with interest and that the lower appellate Court ought to have given the plaintiff a decree declaring that the property in the present suit was not liable for sale in execution of the decree.