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of <h1>Court limits plaintiff's recovery to Rs. 381 only. Appeal dismissed. Plaintiff can recover balance from other properties.</h1> <h3>Shailesh Chandra Guha Versus Bechai Gope and Ors.</h3> The court held that the plaintiff could recover only Rs. 381-0-6 from the properties purchased by defendants 6 and 7. The appeal against defendants 3 to 7 ... - Issues Involved:1. Enforcement of Mortgage by Sale2. Estoppel and Contractual Obligations3. Admissibility of Oral Evidence4. Undue Influence5. Validity of Contract with Pro Forma Defendants6. Rights of Subsequent Mortgagees and PurchasersIssue-wise Detailed Analysis:1. Enforcement of Mortgage by Sale:The plaintiff sought to enforce a mortgage by selling the mortgaged properties. The mortgage bond dated June 4, 1907, was executed by defendant No. 1 in favor of Mathura Mohan Saha for Rs. 130, with an interest rate of Rs. 5 per cent per month. After Mathura Mohan's death, his sons (pro forma defendants Nos. 29 to 33) inherited the interest. The plaintiff obtained an assignment of the bond for Rs. 900 and filed the suit on October 27, 1919. The mortgage money due was Rs. 83,917-12 as, but the plaintiff claimed only Rs. 9,999, abandoning the balance. Defendants Nos. 2 to 28 were impleaded due to their acquired interests in the mortgaged property.2. Estoppel and Contractual Obligations:Defendants 6 and 7 contended that they had settled the mortgage debt with pro forma defendant No. 30 before purchasing the properties from defendant No. 1. They argued that the mortgagees were estopped from claiming an amount larger than agreed. The court held that the mortgagee's promise to accept a lower amount in full discharge of the debt was binding and that the plaintiff could not recover more than the agreed amount. The court also considered the doctrine of estoppel, stating that the mortgagee's representation prevented them from claiming the full bond amount, as it would be inequitable.3. Admissibility of Oral Evidence:The plaintiff argued that oral evidence of the alleged contract was inadmissible under Section 92 of the Evidence Act. However, the court found that the evidence pertained to a different contract between defendant No. 7 and Nabadwip concerning the terms of releasing the mortgage, not varying the original mortgage contract. Thus, Section 92 did not apply, and the evidence was admissible.4. Undue Influence:The Subordinate Judge found that Mathura Mohan, the original mortgagee, had dominated the will of defendant No. 1, making the mortgage contract unconscionable. However, the appellate court held that the contesting defendants could not raise the plea of undue influence as they were not the original parties to the contract. Section 19A of the Contract Act states that a contract is voidable at the option of the party whose consent was caused by undue influence, which defendant No. 1 did not exercise.5. Validity of Contract with Pro Forma Defendants:The court examined whether there was a binding contract between the contending defendants and pro forma defendants. It was established that there was a concluded contract between Nabadwip and defendant No. 7 regarding the discharge of the mortgage upon payment of a settled amount. The court found that this agreement was binding and that the plaintiff, as an assignee, was equally bound by it.6. Rights of Subsequent Mortgagees and Purchasers:Defendant No. 8, who took subsequent mortgages, argued that he was assured by defendants Nos. 1 and 28 of their primary responsibility for the debt. The court found this defense irrelevant as no representation was made to him. Defendant No. 8's mortgages were subsequent to the release of properties purchased by defendants 6 and 7, and he was not entitled to rateable distribution of the mortgage debt. The plaintiff could enforce the claim against other properties not released.Conclusion:The court concluded that the plaintiff could recover only Rs. 381-0-6 from the properties purchased by defendants 6 and 7. The appeal against defendants Nos. 3 to 7 was dismissed with costs. The plaintiff was entitled to recover the balance of Rs. 9,617-15-6 from other properties, with a decree prepared for redemption within one month and interest at 6 per cent per annum until realization. The Subordinate Judge's decree was varied to reflect these findings.
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