Ganesh Lal Pandit and others vs Khetramohan Mahapatra and others

Mr. Ameer Ali, J.

Their Lordships are relieved" of the necessity of narrating at length the facts of this complicated litigation as the judgment under appeal summarizes very clearly the history of the transactions in debate.

This is an ex parte appeal from the judgment and decree of the High Court of Patna which partly affirmed and partly reversed the order of the Court of first instance.

A Hindu lady of the name of Suryamani, who died in 1901 or 1905, conveyed by mortgage and sale to one Behari Lal Pandit the father of the Defendant No. 1 almost the whole of the property which had devolved on her as the widow of one Banamali Mahapatra, a native of Orissa, subject to the Mitakshara law. Banamali appears to have died in the year 1863, leaving him surviving his widow, Suryamani. and two daughters, one of whom died not long after, childless ; the other Satyabhama survived her mother, and was the original plaintiff in the present suit, which was instituted in the Court of the Subordinate Judge of Cuttack on the 17th September, 1916. Satyabhama challenged in the action the validity of the transactions entered into between Suryamani and Behari Lal Pandit in respect of the properties conveyed to him by the widow. On Satyabhama''s death her sons, the present respondents, were substituted in her place.

It is not disputed that Suryamani, on coming into possession of the properties left by her husband, had to meet heavy expenses connected with the litigation in which Banamali was involved. The High Court in its judgment, refers to the circumstances which compelled her to alien ate many of the properties which formed the subject of controversy in the present case.

In respect of the others the learned Judges of the High Court, differing from the trial Judge, have held firstly that the documents which purported to create the alienations were not properly ex plained to the lady, that she was an igno rant purdanashin woman and had no in dependent advice ; and secondly, that some of the alienations challenged by the plaintiffs were either for debts that were barred or not binding on the reversioners. They have also held that the principal mortgage purporting to have been exe cuted by Suryamani was not executed in compliance with the provisions of the law so as to make it binding on Suryamani.

It is with regard to these findings that the present appeal before the Board is concerned.

On the defendant''s side it is alleged that on the 23rd July, 1884, Suryamali entered into two transactions with Behari Lal Pandit : one . was a mortgage for Rs. 30,500, the other a sale to him of certain properties for Rs. 8,000. The sale deed is marked in the proceedings as Exhibit Q. 6, and the deed of mortgage as Exhibit M.

In 1896 Behari Lal Pandit instituted a suit against Suryamani. and her daughter Satyabhama for enforcement of the mort gage. On the 28th August, 1896, Behari Lal Pandit obtained an ex parte decree.

Their Lordships do not think it neces sary to refer to the steps taken by the ladies to set aside the ex parte decree ; it is enough to say that they failed in those proceedings and on the 25th and 26th August, 1897, the mortgage decree was executed, and the mortgaged pro perties were put up for sale and purchased by Behari Lal himself for Rs. 33,000, odd. At the time of the sale the mortgage debt amounted to something like Rs. 80,000. In order to pay the balance of the mort gage debt Suryamani entered into a razinama or deed of compromise by which she agreed to transfer to Behari Lal her remaining properties in her hands be longing to the estate of her husband. In pursuance of this razinama she appears to have executed in 1899 a number of conveyances which are marked in the proceedings as Q., Q 1, Q 2, Q. 3 and Q4 Q5, executed about the same time, stands in a different category.

As already stated Satyabhama, and after her death, the plaintiffs, as rever sioners to Banamali''s estate, challenged the sale deed of the 23rd July, 1884, by which Behari Lal purchased some of the property on the 23rd July, 1884. They also challenged the mortgage deed of the same date and the transactions of 1899, evidenced by Exhibits Q., Q1, Q2, Q3, Q 4 and Q 5.

The learned Judges of the High Court have held that the defendants had estab lished legal necessity in respect of the mortgage of the 23rd July, 1884, and that consequently the sale under the mortgage decree was valid, but that they had failed to satisfy that the sale of the 23rd July 1881, Q 6, was for justifiable neces sity, or that she had in fact executed the sale deed, or that it was read over and explained to Suryamani, and that apart from that she had no independent advice. They also held that the kabalas exe cuted by the widow in 1899, were not binding on the reversioners.

In their Lordships'' opinion the evi dence fully justifies the conclusions of the learned Judges. The deed of sale (Q 6) was executed for Suryamani by a person of the name of Lakhan Mahanty, under a power of attorney which bears date the 29th of July 1884, six days after the sale in question. The substance of the powers entrusted to Lakhan as set out in the Register of powers of attorney of 1881, was given. It will be noticed that this power was registered on the 29th of July, whilst the sale was effected on the 23rd. Neither of the two wit nesses to the execution of the power was examined. Under the Registration Act of 1877 the same provisions are made as under the Act now in force for safeguarding the interests of absent exe cutants of documents when presented for registration by a person claiming to act by and under their alleged authority, S. 32 provides that.

every document to be registered under the Act, whether such a registration be compulsory or optional, shall be presented by such person exe cuting or claiming under the same. ... or by the representative or assignee of such person or by the agent of such person represented or assignee duly authorised by power of attorney duly executed and authenticated in the manner hereinafter mentioned.

Their Lordships concur with the High Court in holding that the sale-deed of the 23rd July 1884, which purported to be executed by Lakhan Mahanty for Suryamani was not validly executed, and that the sale thereunder could not bind either Suryamani or the reversioners.

As regards the kabalas by which Suryamani purported to transfer her remaining properties to Behari Lal Pandit in discharge of the balance re maining over after the sale under the mortgage decree, their Lordships also agree with the High Court that the claim on the personal covenant for the balance of the mortgage debt was barred by the statute of limitation (XV of 1877), long before the execution of the and the conveyances there-under. It will be noticed that the mortgage of the 23rd July 1884, by which Suryamani borrowed Rs. 30,500 from Behari Lal Pandit on interest at the rate of 1 percent per mensem was repayable by her within six months from the date of the execution of the document. The covenant on her failure to repay is as follows :

If I fail to pay the whole of the principal and interest within the aforesaid term the creditor is competent to sue me in the Court and realize the principal with interest thereon at the rate of Re. 1 percent, per mensem from this day till the date of realization and costs of the suit from me and from the mortgaged properties, and, if insufficient, from my other moveable and im movable properties.

The decree on this mortgage, Ex. T (1), made on the 28th August, 1896, was in the following terms :

This suit is for recovery of the principal of Rs. 33.500-0-0 and the balance of interest of Rs. 47,228-8-0, in all Rs. 80,728-8-0, and the interest which will accrue from the date of in stitution of the suit till that of realization and the costs of the suit from the defendant, and if not fully realized from her then from the mort gage properties, except those exempted from mortgage liability at the request of the Defen dant No. 1 by putting them up for sale and if insufficient the balance be realized from the surety, Defendant No. 2, and her properties.

The suit on the mortgage bond was not instituted until ten years after the debt became repayable. The decree for the balance, if the sale of the mortgaged properties proved insufficient, was against Satyabhama, who had stood as surety on the mortgage. Satyabhama was afterwards absolved from all liability as surety in the High Court. In the case of Ramdin v. Kalka Prasad 1884 7 All. 509 : 12 I. A. 12 : 4 Sar 619 (P. C.) it was held by the Judicial Committee that when a mortgagee sues on a personal covenant to make the mortgagor respon sible for any deficiency in the realiza tion of the mortgage debt out of the mortgaged properties, the claim would be barred in three years. That case arose under the Limitation Act of 1871 (IX of 1871) and the same argument which has been advanced in the present, case was submitted to the Board. Their Lordships in that case held as follows :

The second schedule places simple money demands generally under the three years'' limita tion, and under No. 65 the same limitation is ap plied to a simple bond, and under the same limitation are placed bills of exchange, arrears, of rent, and suits by mortgagors recover surplus from mortgaged. The six years'' limit embraced suits on foreign judgments and some compound , registered securities. The twelve years'' period is made applicable principally to suits in respect of immovable property, though it also applies to judgments and recognizances in India. But the counsel for the appellant relied upon the language of the 132nd article of the second schedule ; " For money charged upon immovable property, twelve years. " His conten tion was that that period of twelve years applied to every remedy which the instrument carried with it, and gave twelve years for the personal remedy against the mortgagor as well as against the mortgaged, property.

The Judicial Committee expressly over ruled the contention that a claim for the balance of the mortgage debt based on the personal covenant came under Article 132 of Schedule II applicable to claims for money "charged on im movable property. "

That case was followed by the High Court of Calcutta in Miller v. Runga Nath Mullick 1885 12 Cal. 389 which arose under Act XV of 1877. There the learned Judges held as follows :

We are of opinion that the decision of the lower Court upon the question of limitation is correct. The contention of the learned counsel for the appellant that Article 132 of Schedule II of the Limitation Act of 1877 refers to a claim to recover money charged upon immovable pro perty, quite irrespective of the remedy asked for, has been set at rest by the decision of the Judicial Committee of the Privy Council in the case of Ramdin v. Kalka Pershad 1884 7 All. 509 : 12 I. A. 12 : 4 Sar 619 (P. C.). That decision was passed with reference to the cor responding article of the Limitation Act of 1871. That article provides a period of twelve years for suits of money charged upon immovable property. The Legislature in the present Limita tion Act has used a different phraseology, viz., "to enforce payment of money charged upon immovable property. " The language of the present Act, viz., " to enforce, etc., " is more in favour of the contention that the article in question refers only to suits " to enforce payment of money charged upon immovable property " by the sale of the said property. This construction was put by the Judicial Committee of the Privy Council upon Article 132 of the Limitation Act of 1871, the language of which did not suggest it so clearly as that of the present Limita tion Act. The claim to make the defendants personally liable has therefore been rightly held to be barred by limitation, the present suit having been commenced more than six years after the accrual of the cause of action.

Article 65 of the Second Schedule (Act IX of 1871) is reproduced in Act XV of 1877 as Article 66.

Their Lordships are of opinion that the view taken by the High Court on the question of limitation is well founded. The cause of action on the personal cove nant accrued to Behari Lal Pandit when Suryamani failed to pay the mortgage, debt, viz., within six months from the date of the mortgage. And the claim had become barred under Article 66 long before the execution of the razinama and the conveyances there under. Consequently it is not necessary to consider whether a decree under S. 90 of the Transfer of Property Act of 1882, is requisite in case of deficiency in the realization from the mortgaged property. Admittedly no decree, was asked for or made. S. 90 is now O. 34, R. 6, of the Civil P. C. of 1908.

As regards the consideration for Exhibit Q 5, which was a conveyance executed by Suryamani in favour of Behari Lal Pandit on the 25th November 1899, it appears that Suryamani became liable for her arrears of Government revenue under Act XI of 1859 in respect of a mouzah which she held in her husband''s estate with other co-sharers. To save the property from sale under the Act the co-sharers paid the revenue due from her and sued her for contribu tion. They obtained a decree and attached her dwelling house for the satisfaction of the debt. This is recited in Exhibit Q 5, the kabala by which she conveyed the property now claimed by the reversioners.

The learned Judges of the High Court, relying on the case of Upendra Lal Mukherji v. Girindra Nath Mukherji 1898 25 Cal. 565 : 2 C. W. N. 425 have held that where the Hindu widow fails to pay her share of the Govern ment revenue and after her death her co-sharer brings a suit for contribution, the reversionary heirs of her husband''s estate were not bound to satisfy the debt. But in the present case it has been found as a fact by the Subordinate Judge that the co-sharers had, in execu tion of their decrees for contribution, attached Suryamani''s dwelling house, and that in consequence thereof she was compelled to raise money by executing the kabala Exhibit Q 5.

Their Lordships are of opinion that sufficient evidence has thus been given by the defendants to show that there was a compelling necessity on the part of the widow for entering into this transac tion. They accordingly vary the decree of the High Court by deleting the transaction covered by the deed of sale, Exhibit Q 5. In other respects the decree and judgment appealed against will be confirmed and the appeal will be dismissed. As there is no appearance on behalf of the respondents it will be without costs.

And their Lordships will humbly recommend His Majesty accordingly.