1940 (5) TMI 30

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....Sambhu Chandra Roy) numbered 239 in the same Collectorate and comprising seven mouzas. The mortgage deed had been executed in favour of the plaintiff by two persons as mortgagors-the appellant and his paternal grandmoth'er, an old lady whose name was Srn. Nabin Kishore Chaudhurani. 2. The appellant had inherited the mortgaged properties, together with other properties, from his father at some date before 1914 while he was yet a minor. The father's will, made in 1891, states that Nabin Kishore, the testator's adoptive mother, had managed and administered his zemindari and other properties during his minority and was efficient in doing all business relating thereto. The appellant in 1913, on attaining majority, executed a trust....

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.... impleaded as defendant No. 2 in the suit. She died on September 8, 1932, before the trial and the appellant was substituted in her place on September 13, 1932. The time originally allowed by the Subordinate Judge to the defendants for filing written statements was extended by him until June 4, 1931, on which day the Guha defendants put in a written statement. The appellant was given further time until the 25th. On that day he asked for still more time. The Subordinate Judge gave him two days only, remarking that he had had two and a half months already; also that he had no right to look into the Guha defendants' written statement before filing his own. (This may have meant no more than that he should file his own written statement inde....

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....h it was not explained; that she understood its effect except that she did not understand that she was making herself personally liable to repay the money borrowed from the plaintiff. Neither Court in India appears to have appreciated that if for want of explanation the lady did not understand an important feature of the transaction, it cannot be held that her mind and free consent went with her act in executing the deed. A pardanashin woman is not required to understand every technical detail of a bargain. In the judgment of the Board delivered by Lord Buck-master in Sunitabala Debi v. Dhara Sundari Debi Chowdhurani (1919) L.R. 46 I.A. 272, 278: s.c. 22 Bom. L.R. 1 this is pointed out and the " proper and necessary test" was held to have b....

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....t accept the concurrent finding of the Indian Courts that the lady did not understand that she was incurring personal liability for the loan and on this view must dispose of the case on the footing that the mortgage deed did not bind her at all. What defence is that to the appellant ? That he had the beneficial interest in the property is agreed, though the trust deed of 1913 is not before the Board. He was competent to mortgage his interest. No doctrine of the law of India has been indicated to their Lordships which prevents a beneficiary under a trust from dealing with his interest by way of mortgage, though it is true enough that in India such an interest is not technically regarded as an equitable estate. If Nabin Kishore had a life int....