Sreemutty Rani Kumari Bibi and others vs Rajah Sri Nath Roy and others

Petheram, C.J.—The facts of this case, as I find them from the evidence on the record, are as follows : The Defendant Mohur singh is a Hindu governed by the Mitakshara School of law, who in the mouth of December 1887 was living at Sulkea in the Hoogly District. The joint family, of which he was the senior male member, consisted of him-self, his sons, the Defendants Jaganath Prosad Singh, and Nund Prosad Singh and his mother, the Defendant Rup Kumari Bibi and his wife, the Defendant Rani Kumari Bibi. The income of the family estate was sufficient to support the family in comfort according to their station of life.

For some years before the month of December 1887, Mohur Singh kept a woman named Jaga Mohini, in a house near his own family house, and by her has had several children whom, in the year 1887, he was supporting. In addition to this, he was in the habit of associating with various prostitutes, and the money which was borrowed by him was certainly required by reason of the dissipated life he was leading, and a large portion of it was actually spent by him upon his various mistresses.

On the 21st of December 1887, Mohur Singh borrowed a sum of Rs. 12,000 from Purna Chander Daw, and executed a document by which he mortgaged the ancestral property of the family as security for the loan, covenanted to pay off the loan with interest at the end of three years, and further covenanted that if he should not repay the whole amount with interest within the term, the latter should on the expiration of the term institute a suit in a competent Court and realize the whole amount with interest and cost, by sale of the mortgaged properties. The transaction was undoubtedly a mortgage, and not a charge within the meaning of ss. 59 and 100 of the Transfer of Property Act. The document was attested by one witness only, and therefore was not effectual to create a mortgage on the property comprised in it, by reason of the provisions of s. 59 of the Act.

On the 29th of January 1891, the two minor sons of Mohur Singh obtained a decree against him and the other members of the family, for the partition of the family estate.

On the 23rd April 1893, Purna Chandra Daw sold and conveyed all his interest in the debt and the security to the Plaintiff, Rajah Sri Nath Roy. On the 27th September 1893, the present action was brought against Mohur Singh and the other members of the family, including Durga Prosad Singh and Sunker Prasad Singh who, the Plaintiff asserts are sons of Mohur Singh born since the partition, to obtain a declaration that the family is governed by the Dayabhaga, and not by the Mitakshara School of law, and to obtain payment of the loan and interest by the sale of the family property, which was included in the deed of December the 21st, 1887.

Purna Chunder Daw was made a Defendant to the suit, and against him the Plaintiffs claimed, that in case the whole or any part of the money due to them was not realised from the mortgaged properties he, Purna, should be declared to be liable for it, and that the money might be recovered from him.

Neither Mohur Singh nor Purna Chunder ever appeared or defended the suit in any way, though they were both called as witnesses at the trial.

The Subordinate Judge has found that the family is governed by the Mitakshara School of Hindu law, and on this point I entirely agree with him, and the right and liabilities of the parties must be considered and decided on that basis, The Subordinate Judge has further held that the transaction created a valid charge on the property included in it, because it was one which could not be enforced as a mortgage by reason of the provisions of s. 59 of the Transfer of Property Act. And, further, that as the debt of Mohur Singh is not in his opinion proved to have been contracted for immoral purposes, it was one which his sons were liable to pay, and that, therefore, the charge created by him on tie whole of the family is binding upon the entire family.

As I have stated before, I do not think the transaction created any charge on the property, because it is a mortgage within the definition of s. 58 and because such a transaction is expressly excluded from the operation of s. 100 by the words of the section itself.

This is enough to dispose of the suit in its present form, as far as the appellants, the other members of the family are concerned, as the claim against them is to recover the debt by the sale of the mortgaged property, and, as the mortgage cannot be proved, because the statutory provisions have not been complied with, it must follow that an attempt to realise the security intended to be created by it must fail. It was also argued on behalf of the plaintiff that the deposit of the title-deeds created an equitable mortgage, but this cannot be the case, as the transaction whatever it was, was evidenced by the written legal mortgage and as that cannot be proved, no other evidence of the terms as to security on which the loan was made, can be given.

It has, however, been pressed upon us that this is a debt of the father for which sons would be liable and for which the family property might be sold, and that, if that is so, we ought not to interfere to prevent the plaintiff from selling the whole estate. But, upon the facts, as I find them, I do not think this was a debt of the father for which his sons could be made liable, as upon the evidence on this record I think the money was borrowed for the entertainment and support of Mohur Singh''s mistresses and his illegitimate children and not for the purpose of his legitimate household.

I think the appeal should be allowed and the suit dismissed as against the other members of the Mitakshara family, with costs in both Courts.

Rampini, J.

I agree.