ANNODA CHARAN MONDAL Vs. ATUL CHANDRA MALIK

JUDGEMENT

(1.) The plaintiffs instituted the suit for a declaration that they were the reversioners of the estate of one Gopal Chandra Shaw,- their maternal uncle, that a mortgage which had been executed by his widow Mokhadamoyee Dassi was not operative against them and that the properties covered thereby could not be sold in execution of the decree obtained by the mortgagee against her. They also applied for a temporary injunction restraining the sale and for a declaration that they were not affected by the mortgage deed or the decree or by the sale of the mortgaged properties as directed by the said decree. It appears that the plaint was subsequently amended and an allegation was added that the mortgage-debt had been satisfied. It was also alleged by them that the lady had no legal necessity and, therefore, could not bind the estate in any manner. It is noticeable that there is nothing said in the plaint about this lady having obtained Letters of Administration to the estate of her husband. It is clear upon the evidence that citations were issued so far as the reversionary heirs were concerned and that some of them were present when the Letters were granted. There is no question that the plaintiffs are the present reversionary heirs of Gopal Chandra Shaw.

(2.) The learned Subordinate Judge held that there was legal necessity for the loan contracted by the widow Mokhadamoyee, that she applied for leave to mortgage the property after having obtained Letters of Administration and such leave was granted by the Court, that the reversioners, at least some of them, had knowledge of the application but did nothing. He held upon these facts that the plaintiffs "had knowledge of the legal necessity." As regards the allegation that the mortgage-debt due to the decree-holders had been satisfied, he found that the documents relied upon by the plaintiffs were not genuine, that the mortgage bond "had not been paid in part and not been satisfied from the in- come of the land in the mortgage suit," and, therefore, it stood good and valid. He, therefore, dismissed the suit.

(3.) On appeal the learned Additional District Judge has reversed that decision upon the following findings: (1) that the mortgage in question was not for legal necessity : and (2) that the defendant No. 2, the mortgagee, did not by bona fide enquiry satisfy himself that there was such necessity. It appears to us that he has entirely overlooked the question about this lady having obtained sanction of the Probate Court to mortgage the property. After such sanction the defendant No. 2 advanced money, presumably relying upon the fiat of the Court. There is nothing to show, nor has it been found, that the transaction was collusive or fraudulent or that there was anything which tainted the transaction with fraud. It was not a case of advancing money having regard to the legal necessity of a Hindu widow, but merely upon leave granted by the Court which permitted her to mortgage the property. It is incorrect to suppose that having regard to the sanction given by a Probate Court a person had still to enquire as regards the necessity for such advance. If he bona fide relied upon the order and made the advance, there is no onus upon him to go and make enquiries about the truth of the allegation upon which the sanction was given. To challenge such a transaction it has to be shown that the person who got the mortgage knew that the facts were false or that he was instrumental in getting the order from the Court upon false representation. The learned Judge has, however, elaborately gone into the question of legal necessity and he has gone to the extent that even the earlier mortgage transaction in which this estate was concerned was not a good mortgage, and he has not considered the case from the point of view we have above mentioned. We call his attention to Kamikhaya Nath Mukerjee v. Hari Churn Sen 26 C. 607.