RAMESHWAR DAYAL SINGH Vs. RAM DAS SAHU

JUDGEMENT

(1.) This is an appeal by the principal defendant against the decision of the learned Subordinate Judge of Daltonganj dated 10 February 1936 by which he decreed the suit of the plaintiffs which was instituted to recover the dues on a mortgage bond dated 21 October 1927 executed by the defendant Parmeshwar Dayal Singh in favour of plaintiff 1 for Rs. 4250 along with interest at the rate stated in the bond. The defence to the action was that the loan was contracted for purposes not binding upon the joint family of the defendants, that the bond was invalid and for no consideration and that the rate of interest was excessive. The learned Subordinate Judge decided all the issues in favour of the plaintiffs and these findings were not challenged before us. Another defence raised was that the bond in suit was void in view of the provisions of Section 12-A, Chota Nagpur Encumbered Estates Act, but the learned Subordinate Judge repelled that objection also and this was the main contention ad. vanced before us on behalf of the appellant.

(2.) In order to understand this objection it is necessary to state that the family of the defendants was at one time a joint Hindu family governed by the Mitakshara School of Hindu law descending from one Saligram Singh who had two sons, Nageshwar and Parmeshwar (defendant 1). Nageshwar was the father of Chandrika (defendant 3), of Bhagwat (defendant 4) and of Lal Bahadur (defendant 5). The appellant Parmeshwar Dayal is the father of Rameshwar Dayal (defendant 2). Defendants 6, 7 and 8 are the sons of Chandrika, Bhagwat and Lai Bahadur respectively. In the year 1894 Nageshwar Dayal, the father of defendant 3 and brother of the appellant, made an application to the proper authorities for the assumption by the Encrimbered Estate of the Namudag Estate belonging to the joint family of Nageshwar and Parmeshwar and their descendants. On 10th December 1894, by a notification (Ex. A) the Namudag Estate was placed in charge of the Deputy Commissioner of the Palamau District under the provisions of Section 2, Chota Nagpur Encumbered Estates Act (6 of 1876)(hereinafter to be referred to as the Act.) The Notification describes the name of the property as Namudag Estate and the name of the holder is stated therein as Nageshwar Dayal Singh. Nageshwar Dayal at that time, as the evidence discloses, was the karta of the joint Hindu family consisting of Nageshwar, Parmeshwar and their sons about whom the evidence is not clear as to which of these other than Chandrika (defendant 3) were not born at that time; but that is not material for the purpose of this case.

(3.) Nageshwar Dayal died in 1895 but the Namudag Estate continued to be managed under the Encumbered Estates Act until it was released on 26 August 1910 by a notification (Ex. A-1) and handed over to Parmeshwar Dayal, defendant 1, and Chandrika, defendant 3. On 15 February 1920 Chandrika and Parmesh war executed a mortgage bond in favour of the respondent giving as security a portion of the Namudag Estate which had been released to them in 1910. This transaction form's the subject of Second Appeal No. 722 of 1934 and will be considered later. In the year 1922 a partition was effected between the two branches of Nageshwar and Parmeshwar. After this partition the mortgage bond in suit was executed by Parmeshwar alone; the total amount advanoed was made up of the half share of Parmesh. war in the dues under the mortgage bond of February 1920 and some other advances which were made to him by the plaintiff on handnotes and orally. These facts have been amply proved in this case and were not seriously challenged by either side.