1919 (5) TMI 1

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....ovember, 1903, the date of his death. The appellant, as the daughter of the deceased and devisee under an earlier will, opposed this application. The District Judge refused the grant, holding that the alleged will was not genuine, and the respondents appealed to the High Court. While this appeal was pending, the Administrator General of Bengal as Executor applied for probate of an earlier will, dated the 21st September, 1892. By the terms of this will the appellant would take the whole property of the testator, subject to certain small provisions for maintenance in favour of the first respondent and of another wife. A caveat was entered by the respondents to this grant, and there was thus opened a prospect of litigation inviting indeed to a....

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.... appellant being the agreement of compromise; the second, a mortgage of the 5th March, 1907, mortgaging the real and personal estate in payment of the 2 sums of ₹ 80,000; and the third, a release by the widows of their claims. On the 25th March, 1909, the first respondent instituted proceedings under the mortgage deed against the appellant, the other respondent and the prior mortgagee of the real estate asking for payment of the ₹ 80,000 and interest and sale of half of the mortgaged property. This action was defended on two grounds the one of substance and the other of form. The first that the compromise was not binding on the appellant owing to the disabilities attaching to the pardanashin lady, and the other that the procee....

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....rtgagees and their representatives of ₹ 80,000, with interest" and on payment of costs and incidental expenses, "the said mortgagees, their respective heirs or assigns will separately at the costs of mortgagor" reconvey and re-assign the mortgaged property. This mortgage clearly effects the conveyance of the real estate to the mortgagees as tenants in common, and no redemption could be effected of part of the property by paying to one of the mortgagees her separate debt. It is not a mortgage to each of a divided half, but a conveyance to them of the whole property. Where a mortgage is made by one mortgagor to two tenants in common, the right of either mortgagee who desires to realise the mortgaged property and obtain p....

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....e should be understood, and that people disinterested and competent to give advice should with a fair understanding of the whole matter advise the lady that the deed should be executed. The learned Subordinate Judge has applied the proper and necessary test for the pur. pose of examining the evidence. He has found that the lady had sufficient intelligence to understand the relevant and important matters, that she did understand them as they were explained to her that nothing was concealed, and that there was no undue influence or misrepresentation. As apparently it was only her husband who was blamed in the matter, it is sitisfactory to find by the judgment of the learned Subordinate Judge that in his opinion he did his best to serve his wi....