MT. MANKARNIKABAI Vs. NANDLAL ACHALDAS

JUDGEMENT

(1.) THIS appeal arises from a suit to enforce a mortgage executed on 11th July 1912 by Rukhmabai, the widow of Ganpat Patel, in favour of the plaintiff for Rs. 15,000. Ganpat Patel died in 1893 and was succeeded by his widow Rukhmabai. One Jasraj Shriram of Khamgaon had obtained a decree against Rukhmabai; and her property was about to be sold by the Collector in execution of this decree when the mortgage dated 11th July 1912 was executed. To prevent the sale Sadu Janji, who is a son of Ganpat's separated brother, came with others to Mr. Pimplikar (P.W. 1), a pleader of Malkapur, to arrange for a loan to Rukhmabai Mr, Pimplikar approached the plaintiff's munim, who, after consulting his master at Khamgaon, agreed to advance Rs. 15,000 on a mortgage of Rukhmabai's property. The consideration was paid on the day when the mortgage deed, with Bhau Patel, the husband of Ganpat's daughter, by another wife, Kri3hnabai, as surety, was executed. Rs. 12,610-15-0 were paid into the treasury in satisfaction of the decree of Jasraj Shriram and the balance of Rs.

(2.) ,391-1-0 was paid in cash before the Sub-Registrar. Not long after the mortgage Rukhmabai died and was succeeded by Krishnabai, her stepdaughter. Krishnabai died in 1918 and was succeeded by the first two defendants, Mankarnikabai, the widow of Pandhari, the son of Bbau Patel, but stepson of Krishnabai, and Bhuli Pandhari's full sister. These defendants deny that the mortgage in suit is binding on them because it was executed by a person holding a widow's estate without legal necessity. The plaintiff relies on the pleas that the mortgage had the consent or the ratification of the reversioners and that the plaintiff made adequate enquiries before giving the loan. 2. It is argued on behalf of the defendants that Ganpat Patel left a large estate when he died and that there thus can have been no necessity for his widow to incur any debt. The evidence shows that Ganpat was indeed a fairly wealthy man at the time of his death, but this does not sad to any inference as to the condition of his estate when the mortgage was effected nearly 20 years later. On the other hand, it is definitely proved that the mortgage was effected by Eukhmabai with the aid of her relatives in order to prevent the property she had inherited from Ganpat being sold in execution of a decree. The evidence does not show why the debt to Jasraj Shriram was incurred, and it may be that it was not one that would entitle Eukhmabai to alienate more than her own limited interest in the estate she inherited from Ganpat. The onus would of course lie upon tb.8 plaintiff to show that the debt was of such a nature as to make the mortgage binding on the reversioners, if the decision of the case turned upon that point. We are, however, satisfied that the plaintiff must succeed on any one of three grounds, namely, that he acted on information sufficient to justify his giving the loan, that the attitude cf the reversioners towards the mortgage was such as to validate it, and that it was ratified by Krishnabai.

(3.) AFTER the mortgage was effected payments were made in respect of it on six occasions; on 8th August 1913 Rs. 1,700 was paid through. Bhau Patel, the, husband of Krishnabai, and on 5th July 1914 Rs. 4,044 was paid, also through Bhau Patel; on 19th April 1916 Rs. 3,00O and on 6th December 1916 Rs. 2,400 were paid through Ramji Ambu: on 25th November 1917 Rs. 3,000 was paid through Yeshwanta (D.W. 2) and on 8th March 1919 Rs. 1,985 was paid through Ramji Ambu. An attempt has been made by the defence to show that these persons had no authority to act for Krishnabai or Mankarnikabai. It is denied that the Yeshwanti referred to in the plaintiff's account books is that Yeshwanta who has given evidence as D.W. 2, but this fact is proved by the evidence of Dewoodas (P.W. 11). It is clear from the evidence of Mr. Pimplikar (P.W. 1) and Motiratn (P.W. 3), a member of the family, that Krishnabai's husband, Bhau Patel, and after him Mankarnikabai's father Ramji Ambu managed the estate. Vithal (P.W. 10) deposes that Ramji Ambu had represented himself to be the agent of Krishnabai; and it is clear from the evidence of Yeshwanta himself. D.W. 2) that Bhau Patel was acting in management of the estate from as early as 1908, in which year he engaged the witness. We feel satisfied that if Manikarnikabai had produced the books in her possession the above payments would bo found mentioned in them and it would be clear that Bhau Patel, Ramji Ambu and Yeshwanta acted as agents for Krishnabai and Ramji Ambu for Mankarnikabai. Yeshwanta has denied that books are kept, but the evidence of Mankarnikabai herself shows that Yeshwanta's evidence is false and the suppression of the books tells against the defence.