1938 (6) TMI 13 - HC - Indian Laws

Appeal Dismissed, Decree Affirmed with Costs

Kulwanta Bewa and Ors. Versus Karam Chand Soni and Ors.

The appeal was dismissed with costs, affirming the preliminary decree for a sum of Rs. 53,275 with interest and costs against the defendants, including ... - Issues Involved:1. Maintainability of the suit2. Validity and enforceability of the mortgage3. Binding nature of the mortgage on defendant 3, Rambiswas4. Calculation of interestDetailed Analysis:1. Maintainability of the Suit:The appellants argued that the suit was not maintainable because plaintiffs 2 to 4, as heirs of the mortgagee Sm. Durgabati, had not obtained letters of administration or a succession certificate, thus invoking Section 214, Succession Act, 1925. However, the plaintiffs countered this by asserting that Lala Karam Chand, plaintiff 1, was the real mortgagee, and Sm. Durgabati was merely a benamidar. The learned Subordinate Judge found in favor of the plaintiffs on the question of benami. The Court concluded that the evidence supported the plaintiffs' claim that Lala Karam Chand advanced the money, making him the real mortgagee. Consequently, the suit was maintainable at his instance, and the first objection by the appellants failed.2. Validity and Enforceability of the Mortgage:The appellants contended that the mortgage was not valid and enforceable, arguing that Mt. Kulwant Bewa, as administratrix, was the only person competent to deal with the property and that she had not validly executed the mortgage or obtained the necessary permission under Section 307, Succession Act, 1925. The Court disagreed with the learned Subordinate Judge's finding that the mortgaged property was ancestral and held that it was self-acquired by Perganram, thus necessitating the grant of administration to Mt. Kulwant. The Court further held that the execution of the mortgage by Ramdas on behalf of his brother Ramchatti was valid under the power of attorney. Additionally, the Court found that the beneficial interest in the estate vested in the heirs-at-law, and the grant of administration did not limit their power to dispose of the estate. Hence, the mortgage was validly executed by the sons of Perganram, and the objections regarding the execution by Mt. Kulwant and the lack of sanction under Section 307 failed.3. Binding Nature of the Mortgage on Defendant 3, Rambiswas:The appellants argued that the mortgage was not binding on Rambiswas, who had an interest in the property by birth but was not a party to the mortgage. The Court considered whether the mortgage was for the purpose of discharging an antecedent debt of Ramchatti. The Court found that the mortgage was indeed for discharging such a debt and was not tainted with immorality. Therefore, the mortgage was binding on Rambiswas as well as on Ramchatti and Ramdas. The Court upheld the mortgage decree against all defendants, including Rambiswas.4. Calculation of Interest:Although a point regarding the calculation of interest was raised, it was not pressed by the appellants. Therefore, the Court did not provide a detailed analysis on this issue.Conclusion:The appeal was dismissed with costs, affirming the preliminary decree for a sum of Rs. 53,275 with interest and costs against the defendants, including Rambiswas. The Court upheld the findings of the learned Subordinate Judge regarding the maintainability of the suit, the validity and enforceability of the mortgage, and the binding nature of the mortgage on Rambiswas.