BINDUBASHINI DASI Vs. GIRIDHARI LAL ROY

JUDGEMENT

(1.) This appear is directed against a decree in a suit to enforce a mortgage security executed by the appellant and her husband Radha Nath. Bose on the 3 April 1899 in favour of Kishori Mohun Roy, a money-lender of this city now represented by the plaintiffs-respondents. The mortgage which was jointly executed by the husband and wife was for a consideration of Rs. 14,500 and covered three properties. Out of the consideration a sum of Rs. 8,337-14 was due under two hand-notes executed on the 1 October 1898 in favour of Kishori Mohun by the husband of the appellant Bindubashini as her constituted attorney. A sum of Rs. 1,804-14 was covered by four hand-notes executed by Radha Nath himself in favour of Kishori Mohun on various dates between the 6 May 1895 and the 23 March. 1899. A further sum of Rs. 4,357-3-10 is stated in the mortgage-deed to have been advanced in cash, at the time of the transaction, so as to bring up the total sum advanced to Rs. 14,500. The husband and the wife made themselves jointly and severally liable for the whole amount. Of the three properties covered by the security the first and the third belonged to the husband, and the second which was admittedly of substantial value was owned and possessed by the wife. The deed further recited that at the time of its execution documents of title were made over to the mortgagee; these included a power of attorney in English executed by the wife in favour of the husband on the 16 August 1889. The mortgage was signed by the husband as well as the wife who were both able to read and write and was attested by Promotha Nath and Nogendra Nath two of the sons of the executants. On the 14 June 1899, the document was produced before the Registrar by Radha Nath and the endorsement made at the time shows that execution was admitted by Radha Nath for himself and on behalf of his wife under the power-of-attorney which was produced before the Registering Officer. Nothing appears to have, been paid by the debtors towards the satisfaction of the mortgage-debt, and although one of the mortgagors, the husband, had assigned to the mortgagee two decrees for money which he held against certain other persons, the mortgagee does not appear to have realised anything thereunder in reduction of his debt. On the 19 August 1905, the representatives of the mortgagee commenced the present action against both the mortgagors for the realization of the principal and compound interest at 8 1/2 per cent, per annum with six monthly rests. The husband, who was the first defendant, resisted the claim on the ground that the plaintiffs were not the representatives of the original mortgagee, that he was entitled to claim certain deductions which the original mortgagee had promised to allow, and that as the decrees which had been assigned to the mortgagee had become barred by limitation through his laches, the plaintiff were bound to allow credit for whatever sum was realizable under those decrees. The wife, who was the second defendant, filed a separate written statement through the same pleader who appeared on behalf of the husband. In addition to the objections urged in the defence of her husband, she contended that the claim for compound interest was not maintainable and that the purport of the mortgage security in this respect as well as in any other respect had not been explained to her. An. examination of the written statement on the record shows that this paragraph originally stated that the purport of the mortgage-deed in this respect (that is, in respect of interest) as well as in some other respects had not been explained to her. But before the written statement was filed, the phraseology was altered so as to make the objections more comprehensive. The second defendant further stated in her written statement that she had not got money on account of the mortgage-deed. On these pleadings issues were framed on the 22nd: November 1905, and the eighth issue was in the following terms: "Was any consideration money for the mortgage-deed paid to the defendant No. 2? Was the mortgage deed properly explained to her and is she bound by all or any of its terms? "A, detailed reference to the other issues is not necessary for the disposal of the question which has been argued in this appeal. On the 2 March, 1906, after an order for the examination of the second defendant on commission had been made on the 20 February, she presented to the Subordinate Judge through a new pleader a petition (which had been drawn up on the 16 February but for some unexplained reason withheld for two weeks ) in which she alleged that the written, statement previously filed in her name, was really not her pleading, that she knew nothing about the mortgage-bond, that she had not executed it, had not received any money on account of it, had never authorised her husband to take any loan on her behalf and that consequently she was not personally liable for the money and no proceedings could be taken against her: property. The successor of the Subordinate Judge who at this time was transferred examined the lady at her residence in Calcutta on the 29 April in support, of her allegation that she had not signed either the vakalutnama or the written statement previously filed on her behalf. On the 16 May 1906, the Subordinate Judge held upon the evidence before him that the lady was a tool in the hands of her husband and sons, that she had falsely dented her signatures on the vakalutnama and the written statement and that consequently the petition filed on the 2 March, 1906 for supersession of the original written statement filed on the 14 November 1905 must be rejected. The case was subsequently heard on the merits and after the case for the plaintiffs had closed the defendants applied for time to be ready with their evidence. This unusual prayer was granted by the Subordinate Judge and the result was that after the plaintiffs had closed their case on the 29 October, the defendants obtained an adjournment till the 7 November when their evidence was taken. The Subordinate Judge ultimately held that due execution of the document by both the mortgagors was proved and that the deed had been read over and explained to the lady who was in the words of the Subordinate Judge, an intelligent lady of acute understanding and knew to read and write and was aware of all the conditions set forth in the mortgage-bond. The Subordinate Judge also found upon the third and fourth issues that the mortgagees had, through their own laches, allowed the assigned decrees to be barred by limitation and that they were consequently bound to allow credit for all sums realizable thereunder. In this view of the matter he made in favour of the plaintiffs a decree for Rs. 15,571 with costs and interest.

(2.) The second defendant alone has presented this appeal against the decree of the Subordinate Judge and she has joined as respondents the plaintiff mortgagees as well as her husband. During the pendency of the appeal the respondent Radha Nath died on the 7th November 1907 and his sons have been brought on the record as his legal representatives. The learned Vakil who has appeared in support of the appeal has argued that the mortgage- deed was not operative as against the wife because it is not proved that she received any portion of the consideration or that the sums advanced on the hand-notes executed on her behalf by her husband were taken with her knowledge or authority, that the power-of-attorney on the basis of which the hand-notes were executed was not shown to have been read over or explained to her, that sufficient grounds have not been established for reception of secondary evidence of the terms of the power-of-attorney, that the power-of-attorney was a general power and did not confer on the husband an unlimited authority to borrow on behalf of his wife, that the mortgage-deed was neither read over nor explained to the lady, that she was not aware that the effect of the deed was to make her property liable not only for her own debts but also for those of her husband, that as at the time of the execution of the deed her interest was in conflict with that of her husband it was essential to prove that she had independent advice and finally that the evidence disclosed that the document had not been executed under circumstances which would make it binding and operative as against a pardanashin lady on the principle laid down in a series of decisions of their Lordships of the Judicial Committee. In support of this position reliance has been placed upon the cases of Sudisht Lal V/s. Musammat Sheobarat Koer 8 I.A. 39 : 7 C. 245; Annoda Mohun Rai Chowdhri v. Bhuban Mohini Debi 8 I.A. 71 : 28 C. 546 and Shambati Koeri V/s. Jago Bibi 29 1.A. 127 : 29 C. 749.

(3.) In answer to these objections it has been contended on behalf of the respondents that the defence was both dishonest and inconsistent, that it was not open to the lady in view of the decision of the Judicial Committee in Mahomed Buksh Khan V/s. Hosseini Bibi 15 I.A. 81 : 15 C. 684 to plead that she never executed the document and in the alternative that if she executed it, she did so under circumstances which did not make it binding upon her as a pardanashin lady and finally that the evidence proved conclusively that the lady executed the document with full knowledge of all its terms and their consequences.