MATHURA PARSHAD Vs. MUSAMMAT MAHTABI

JUDGEMENT

(1.) THIS second arises out of a suit brought by the two Plaintiffs in whose favour Musammat Mahtabi now respondent and her son Bisheshar (since deceased) executed a mortgage deed in favour of one of the appellants and hypothecated in that deed as security two houses the mortgage deed was registered on the 21 of September 1893. Subsequent to this, the aforesaid Bisheshar deceased, Musammat Mahtatabi and another son of Mahtabi Shankata Prasad, now respondent, executed a second mortgage deed in respect of the of the two houses, which were mortgaged under the deed registered on the 21 September 1893. It is this particular house which is in dispute in the present case. With the second of the houses mortgaged in the first deed this appeal is not concerned the respondents Nos. 3 to 6 in this appeal represent the purchasers of this house on a sale, which took place in executtion of a decree obtained on foot of the second mortgage and as to this last decree it is admitted that the appellants were no parties either to the suit or the decree. The present appellants seek to realise the balance of their mortgage money from this particular house. The respondents Nos. 3 to 6 contested the suit with success. The Court of first instance his found that Musammat Mahtabi had no right to mortgage the property which was ancestral in favour of the appellants as it has not been proved that there was any lawful necessity under which she could execute that bond. She did not execute the deed as guardian of her minor sons, and Bisheshar who joined her in the execution of the mortgage deed was according to the Court a minor of 14 years of age at the time when the deed was executed. For these reasons, that Court held that the deed in favour of the appellants was invalid and the property of the minor Shankata was not liable. The lower appellate Court has confirmed the decree of the first Court on virtually the same lines. In appeal before us it is contended that inasmuch as the mortgage deed on the face of it set out that the debt was being contracted for the maintenance and support of the minor children, the suit should not have been dismissed, at any rate without an express finding as to whether the minors actually benefited under this deed or not. The question whether the minors might have been liable for the debt is quite a separate question and one apart from the question whether Musammat Mahtabi had authority to mortgage the ancestral property under the circumstances of this case, and whether the deed as executed by her operates to create any legal charge. We agree with the learned Judge that it has not been shown that Musammat Mahtabi had any power to mortgage the property. THIS being so, the appeal fails and is dismissed with costs which in this Court will include fees on the higher scale.