Bhagirathi Misr vs Sheobhik and Others

Blair and Burkitt, JJ.—This is the suit of a plaintiff mortgagee for a declaration of right under his mortgage and also under a deed of sale of a certain land which were made by one Mattu. The defence was that the son of the mortgagor bad during his life-time, upon the 1st of September 1893, given a mortgage to the defendants of a portion of the property. The Court of First Instance decreed the claim of the plaintiff. The Court of first appeal held that the defendant''s mortgage was a good and subsisting mortgage. That finding is the part of the judgment impeached in this appeal. The case of the appellant is simple. He says that Daulat as a member of a joint Hindu family, which he is found to have been, had no power, during the life-time of his father, to make a mortgage of any part of the ancestral family property. The plaintiff''s contention is supported by two cases decided by the Privy Council. One is reported in ILR All. 339; the other in ILR Cal. 157. It seems to us that those cases go to the full length of the appellant''s contention. It is suggested for the defendants respondents that the deed executed by Daulat was voidable only and not void, and that his mortgagees ought to have been impleaded in the previous suit brought by the appellant upon his mortgage. No authority was cited in support of that proposition, which is at all upon all fours with the facts of this case. The authority upon which Mr. Gobind Prasad relied is in ILR Cal. 123. That was a special case, and the facts do not, in our opinion, appear to be upon all fours with the facts of this case. The appeal will be allowed with costs. The effect will be to restore the decree of the Court of First Instance setting aside that of the Lower Appellate Court.