GUNDUCHI SAHU Vs. BALARAM BALABANTRA

JUDGEMENT

(1.) This is a plaintiff's appeal from decree of the lower Appellate Court dismissing his claim for a mortgage decree as against defendant 2. On 26 November 1924, the guardian of defendant 1, who was then a minor, mortgaged certain property in favour of the assignor of the plaintiff. On 28 January 1927 the guardian of defendant 1 sold a portion of the property mortgaged to defendant 2. On 20th November 1931 defendant 1, who had then attained majority, made a payment of Rs. 140 towards the dues under the mortgage. No further payments were made and the plaintiff as assignee of the original mortgagee brought this suit to enforce the mortgage against defendants 1 and 2. Defendant 1 did not contest the suit but defendant 2 contended that the sale to him was free of encumbrance and that the plaintiff could not enforce his mortgage against the property which he held.

(2.) Both the lower Courts upheld the contention of defendant 2 and dismissed the claim against him. The plaintiff being dissatisfied with these decisions has preferred this second appeal. Both the Courts below have held that the mortgage of 26 November 1924 executed by the mother of defendant 1, was not executed for the benefit of the minor. It is true that the Courts hold that there was consideration for the mortgage but the consideration was not applied for the minor's benefit.

(3.) In short, the finding appears to be that the minor's guardian mortgaged the minor's property for her own purposes rather than for the purposes of the minor. Both the Courts below have held that the sale by the guardian of the minor on 28 January 1927 in favour of defendant 2 was a transaction for the benefit of the minor and it is therefore binding upon him. The consideration of that sale was applied for the minor's benefit unlike the consideration of the mortgage of 26th November 1924.