Patna High Court
Musammat Adhikari Kuer vs Lokenath Rai And Sheo Shankar Prosad And ... on 3 March, 1920
Equivalent citations: 56IND. CAS.426, AIR 1920 PATNA 446
JUDGMENT Das, J.
1. This appeal arises out of a gait instituted by the respondent Loknath Roy against the appellant and the pro forma respondents to enforce a mortgage bond executed by Musammat Adhikari Kuer and by Sheo Shankar, Uma Shankar and Rama Shankar on the 9th of August 1907. There is no dispute that Musammat Adhikari Kuer was in possession of the estate in her right as a Hindu widow and that Sheo Shankar, Uma Shankar and Rama Shankar, as her daughter's sons, were on that date the immediate reversioners. It appears that Rama Shankar was on that date a minor but that his name was actually signed by his eldest brother Sheo Shankar.
2. The learned Subordinate Judge has given a full mortgage decree to the plaintiff.
3. The first question which has been argued on behalf of the appellant is that there were certain part payments made by Musammat Adhikari Kuer and that those part payments are not shown in the account annexed to the plaint. The appellant's allegation is that she paid Rs, 200 to the plaintiff on the 30th of Bhado 1316 and Rs. 408 on the 30th of Aghan 1319. She relies upon two receipts alleged, to have been granted by the plaintiff to her. It is noteworthy that these payments are not endorsed on the mortgage-bond.
4. Now, in order to determine this question it is necessary to examine whether the case of the defendant was at all put to the plaintiff. The plaintiff came to the witness-box and stated as distinctly as he could that the defendant had not paid anything to him on account of his dues. That was a clear statement that nothing bad been paid to him by the defendant. There was absolutely no cross-examination on this point at all. The Hon'ble Mr. Purnendu Narain Sinha, on behalf of the appellant, relies on the fact that the defendant raised the question of part payments specifically in her written statement and that, therefore, it was for the plaintiff to deny that allegation in the witness-box. I do not agree with this contention at all. The plaintiff same to the witness-box to prove his care and it was for the defendants, if they had a specific case on the point, to put that specific case to the plaintiff. It is, in my opinion, not fair to rely upon receipts alleged to have been executed by Loknath without giving Loknath an opportunity to deny his signatures on those receipts.
5. In the next place the evidence as regards the payments is, in my opinion, not sufficient. I will take the second receipt. That receipt is alleged to have been granted on the 30th of Aghan 1319. Now, it is the defendant's case that on the 5th of Fagun 1317 the defendant executed a Mukhtarnama in favour of the plaintiff's son, appointing him her agent for the purpose of collecting rents, issues and profits. Therefore, on the date, when she is alleged to have paid Rs. 408 to the plaintiff, she was not in possession of the estate at all. The Mukhtarnama has been read to us by the Hon'ble Mr. Purnendu Narain Sinha and it appears that the lady appointed Ram Nihora, the son of the plaintiff, as her Manager on a salary to make collections on her behalf, to pay Government revenue and other public demands out of such collections and to pay her Rs. 30 a month for her. expenses and at the end of each year to account to her for such collections and to make over to her the balance in hand. Now one of the witnesses for the defendants was asked from, where defendant No. 1 got Rs. 408, which she made over to the plaintiff in part payment of what was due from her to the plaintiff, This witness is Kailas Bihari, who is a servant of the defendant and undoubtedly looks after her interest. His answer was ' I cannot say.' The, defendant herself, in her evidence, says that arrears were due to her from the tenants and that these arrears were being realized by her servant Jankey Lal and that she made the payments to the plaintiff out of these collections. It seams to me that this is an impossible story. The Mukhtarnama shows that Ram Nihora was there to make collections on her behalf. The Mukhtarnama makes no distinction whatever between rents as they fell due and arrears of rent. Therefore, if the Mukhtarnama was. at all acted upon, these collections would undoubtedly have been made by Bam Nihora and not by Jankey Lal. Now, if the second receipt goes, then, in my view, it must throw suspicion on the whole story of part payments. In my view, these circumstances, coupled with the fast that the receipts were not shown to the plaintiff when be came to the witness-box to give his evidence, make it impossible for us to accept the story of part-payments.
6. The next point argued by the Hon'ble Mr. Purnendu Narain Sinha is that the defendant appointed the plaintiff her agent to collect rents on her behalf and that, therefore, the plaintiff cannot claim an account of the money due to him from the defendant on the foot of the mortgage-bond, without accounting to her for the monies that came into his hands by virtue of the Mukhtarnama. The principle is well established that he who claims an account must also render account, if he is at all accountable, But in this case the Mukhtarnama is not in favour of the plaintiff, but in favour of the plaintiff's son. The evidence of the defendant, no doubt, is that though the name of Ram Nihora was used in the transaction, it was the plaintiff who actually acted for her. This evidence I cannot accept. This case, again, was not put to the plaintiff when he came to the witness box; and for that reason and also for the reason that every apparent transaction must be assumed to be the real transaction until the contrary is shown, I cannot accept this case.
7. The last point that has been argued before us is that the reversioners could not bind their reversionary interest by the mortgage transaction and that, therefore, all that can be sold in execution of the mortgage decree is the widow's interest. The question, whether the reversioners ban bind their reversionary interest, is one of considerable difficulty and 1 do not propose to discuss that point in this case. But I look upon the transaction by the reversioners not as binding their interest in the estate but as consenting to the transaction by the widow. It is unnecessary to refer to all the oases, that have been decided on this question, but I may usefully cite a passage from the judgment of the Privy Council in the case of Hari Kishen Bhagat v. Kashi Pershad Singh 27 Ind. Cas. 674 : 42 C. 876 : 17 M.L.T. 115 : 19 C.W.N. 370 : 13 A.L.J. 223 : 2 L.W. 219 : 21 C.L.J. 225 : 28 M.L.J. 565 : 17 Bom.L.R. 426 : (1915) M.W.N. 511 : 42 I.A. 64 (P.C.). At page 885 Page of 42 C.--Ed. the Judicial Committee, in that case, said as follows: "The law relating to the dealings of a Hindu widow with her husband's estate which devolves on her in default of issue is now too well-settled to need a prolonged consideration. To be valid as against the reversioners, or to affect their reversionary rights, a charge created by a Hindu widow or an alienation effected by her can be supported only by proof aliunde that such debt was contracted or such alienation was made for valid and legal necessity, and the onus of establishing such necessity rests heavily on the person who claims the benefit of transactions with a Hindu widow or other females taking similar estates. The requirement of the law may, however, be fulfilled by proving the consent or concurrence of the reversioners to or in the transactions." The Judicial Committee went on to point out as follows: "There is no evidence that they," the reversioners, "benefited from the transaction?, or that so far as they were concerned there was any need for the mortgages. Their Lordships think that when a stringent equity, to use Lord Hobhouse's expression in the course of the argument in Jiwan Singh v. Misri Lal 18 A. 146 : 23 I.A. 1 : 6 M.L.J. 47 : 6 Sar. P.C.J. 675 : 8 Ind. Dec. (N.S.) 804, arising out of an alleged consent by the reversioners is sought to be enforced against them, such consent must be established by positive evidence that upon an intelligent understanding of the nature of the dealings they concurred in binding their interests, and that such consent should not be inferred from ambiguous acts or be 'supported by dubious oral testimony, such as appears to have been relied upon in this case."
8. In this case, fortunately for the plaintiff, it is unnecessary to have recourse to ambiguous acts or dubious oral testimony, because the reversioners were actually parties to the transaction, and so far as they were able, they undoubtedly consented to the mortgage transaction. They undoubtedly benefited from the transaction as the mortgage-bond recites that the money was borrowed in order to pay off prior mortgages to which they were parties.
9. It is argued, however, by the Hon'ble Mr. Purnendu Narain Sinha that one of the reversioners, namely, Rama Shankar Prosad, was a minor on the date when the mortgage-bond was executed and that, therefore, there was no such concurrence of the reversioners as is essential under the law. The point has considerably pressed me, but having considered the point very carefully I am unable to agree with Mr. Sinha. No doubt Rama Shankar Prosad was a minor, but his eldest brother anted for him in that transaction. The whole principle of consent binding the reversioners is based on this, that consent is presumptive proof of legal necessity and bars further enquiry into legal necessity. Sheo Shankar and Uma Shankar, who were both of age, undoubtedly entered into the transaction and in my view the fact, that Rama Shankar was a minor on that date, would not vitiate the transaction.
10. But there is another difficulty in the way of the Hon'ble Mr. Purnendu Narain Sinha, and it is this : An alienation by a Hindu widow is not void but voidable. It is voidable at the instance of the reversioners who allege and prove that there was no legal necessity for the particular transaction in question. Now, what are the facts? So far as Sheo Shankar and Uma Shankar are concerned, they were of age, when they consented to the transaction in question; and, in my opinion, they cannot now be heard to say that there was no legal necessity, for the transaction. The only person who could come to Court and challenge the transaction is Rama Shankar, who was a minor on the date of transaction, but Rama Shankar is now dead, He predeceased Musammat Adhikari Kuer and, therefore, that difficulty does not arise now; I prefer to rest my decision so far as this question is concerned on this ground,
11. Another point urged, somewhat halfheartedly, by the Hon'ble Mr. Purnendu Narain Sinha is that the sons and grandsons of the mortgagee have not been made parties to the suit. In my view, there is no substance at all in this point. The only person whose name appears on the mortgage-bond is the mortgagee, Loknath Roy, and he has instituted this suit. The Hon'ble Mr. Purnendu Narain Sinha relied strongly upon the case of Girwar Narain Mahton v. Musammat Makbulunnissa 36 Ind. Cas. 542 : 1 P.L.J. 468, in which it was held that " A mortgage is indivisible and if all the parties entitled to a share in the money due on the mortgage are not upon the record, the suit must be dismissed in its entirety." With that view I entirely agree, but it has not been shown in this case that any person other than Loknath Roy is entitled to the money due on the mortgage. That being so, in my opinion, there is no substance in the argument.
12. In the result, therefore, I agree with the decision of the learned Subordinate Judge and would dismiss this appeal with costs,
13. I desire to point cut that Mr. Nirsu Narain Sinba appeared on behalf of gone of the minor respondents, but withdrew from the case as the costs of the minors have not been secured by the appellant. An application for costs should have been made on behalf of the minors in proper time. As such an application was not made in proper time, we declined to adjourn the hearing of the appeal at this stage.
Adami, J.
14. I agree.