MT DURGAWATI KUNWAR Vs. JAGANNATH PRASAD

JUDGEMENT

(1.) This was a suit for recovery of the money due on a mortgage-deed dated 20th October 1911 purporting to have been executed by Sidh Gopal deceased husband of Mt. Durgawati, defendant 1, in favour of Mata Prasad and Ram Prasad, defendants 2 and 3. The mortgagees sold their rights to Baijnath Prasad by sale- deed dated 16 January 1914. The plaintiff bought the mortgagee rights for Rs. 700 at an auction sale held on 20 April 1925 in execution of a money decree against Sheo Prasad (defendant 4), minor son of Baijnath Prasad. The plaintiff claims Rs. 8,000 on the basis of this mortgage. The suit was originally decreed ex parte on 16 February 1926 against Sidh Gopal and the other defendants, excepting Mt. Durgawati. After Sidh Gopal's death Mt. Durgawati, his widow, got the ex parte decree set aside upon proof that Sidh Gopal had no notice of the suit. Mt. Durgawati is the only contesting defendant. She denied execution of the deed and the passing of consideration and pleaded that the debt was contracted for gambling, that the deed was invalid, that the stipulation for compound interest was inserted under undue influence and that the suit was barred by limitation so far as her personal liability was concerned.

(2.) The trial Court found all the issues in the plaintiff's favour, except that the suit was barred, so far as a decree under Order 34, Rule 6, was concerned, by six years limitation and passed a decree for sale for Rs. 9,215-14-8. Mt. Durgawati impugns the decree of the trial Court mainly on technical grounds. The first point is that secondary evidence was not admissible to prove the mortgage-deed, as no serious attempt had been made to produce the original. The mortgage-deed was sold by the original mortgagees to Baijnath as we have already mentioned. The plaintiff is the auction-purchaser of the mortgagee rights in execution of a decree against Sheo Prasad, the son and legal representative of Baijnath. The plaintiff's case is that the original deed is in the possession of Sheo Prasad who refused to give it up in spite of repeated demands, hence the plaintiff was forced to sue on basis of a certified copy obtained from the registration department. Sheo Prasad is a minor under the guardianship of his mother Mt. Ganga Dei, who is a pardanashin lady. According to the plaintiff's case she is living with her brother Hira Lal at Benares. The plaintiff deposes that he twice asked Hira Lal for the original deed before the suit was instituted. He also served a summons on Ganga Dei, through her brother Hira Lal to produce the original deed. This summons was served on Hira Lal personally but the deed was not produced. We see no reason to disbelieve the plaintiff's evidence on these points.

(3.) The appellant contends that this service of summons on Hira Lal was legally insufficient to constitute such notice to Mt. Ganga Dei as is required by Section 66, Evidence Act. It is true that Hira Lal is not a "recognized agent" of his sister, Mt. Ganga Dei, but as she is a pardanashin lady the summons could, under Order 5, Rule 15, be served upon her brother if he was living with her. Objection is also taken to the fact that Hira Lal was expressly named in the summons as the person upon whom it might be served. At the most this was a technical irregularity due probably to the fact that the plaintiff knew that Mt. Ganga Dei was a pardanashin, and was living with her brother Hira Lal, and that the latter was the most suitable person to accept service of the summons.