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Allahabad High Court
Bharat Bhai vs Jai Narain on 15 July, 1927
Equivalent citations: AIR 1928 All 102, 108 Ind Cas 129
Author: I Ahmad


Iqbal Ahmad, J.

1. This is a defendant’s appeal and arises out of a suit for sale on a mortgage dated 11th April 1912, executed by Mulu, adoptive father of the defendant-appellant, for a sum of Rs. 200 with interest at 1 per cent. per mensem compoundable every six months.

2. The suit was contested by defendant-appellant on various grounds, but we would notice, in the course of this judgment, only the grounds that have been argued in appeal before us.

3. The defendant-appellant denied that the mortgage was executed for legal necessity, and further alleged that at the time of the execution of the deed of mortgage in favour of the plaintiff, the plaintiff was a minor, and, as such, the mortgage was void and unenforcible at law. He further resisted the suit on the ground that Mulu had, prior to the execution of the mortgage in suit, transferred the mortgaged property, by a deed of gift, to one Ram Charan, on 6th February 1901, and, as such, was not competent to mortgage the same to the plaintiff’. He also pleaded that he was in adverse possession of the mortgaged property, and that the plaintiff was not entitled to a decree for the sale of the same on the basis of the mortgage-deed in suit.

4. All the pleas urged in defence were overruled by the trial Court and the plaintiff’s suit was decreed.

5. On appeal by the defendant, the lower appellate Court has affirmed the decree of the trial Court. That Court has held that it was satisfactorily proved that the entire amount advanced under the mortgage-deed in suit was taken by the mortgagor for legal necessity, and that the deed of gift of 1901 was fictitious, and that the mortgagor was the owner of the property on the date of the mortgage. The lower appellate Court has also found that the defendant-appellant failed to substantiate his plea of adverse possession. It further held that even if the plaintiff-respondent was a minor on the date of the execution of the mortgage, the mortgage was valid and enforcible.

6. In appeal before us it is conceded that the weight of authority is decidedly in favour of the view that a mortgage in favour of a minor is valid, and in this connexion the learned Counsel for the appellant himself has invited our attention to the cases of Thakar Das v. Mt. Pulli A.I.R. 1924 Lah. 611 and A.T. Raghavachariar v. O.M. Srinivasa Raghavachariar [1917] 40 Mad. 308. It has been held by this Court in the cases of Munni Kunwar v. Madan Gopal [1916] 38 All. 62 and Narain Das v. Mt. Dhania [1916] 38 All. 154 that a sale-deed executed in favour of a minor is valid. In our judgment there is no real distinction between cases of mortgages and of sales in favour of minors, and we agree with the Courts below in holding that, even if the plaintiff was minor on the date of the execution of the mortgage, the mortgage was enforcible.

7. The finding of the lower appellate Court that the deed of gift of 1901 was fictitious and that the defendant was not in adverse possession of the property mortgaged, is based on legal evidence and cannot be challenged in second appeal.

8. There remains for consideration the plea of legal necessity raised by the defendant-appellant. Out of the sum of Rs. 200 borrowed under the mortgage-deed in suit, a sum of Rs. 152 was left with the mortgagee for payment to one Sri Niwas, an antecedent creditor, and it has not been and cannot be argued that amount was not for legal necessity. There remains the sum of Rs. 48 with respect to which there is no specific finding by either of the Courts below. But as there is evidence upon the record to enable us to come to a finding as to the existence or otherwise of legal necessity with respect to the sum of Rs. 48, we have heard the evidence and have come to the conclusion that the plaintiff has succeeded in proving that the sum of Rs. 48 was taken by the mortgagor for valid family necessity. The evidence on this point consists of the statements of Jai Narain, plaintiff, and of Shyam Lal, one of the plaintiff’s witnesses, both of whom have stated that the sum of Rs. 48 was taken by the mortgagor for household expenses. There is no rebutting evidence on behalf of the contesting defendant. Under the circumstances we feel justified in acting upon the evidence of the above-named witnesses, and on that evidence we hold that the entire sum advanced under the mortgage-deed in suit was taken by the mortgagor for valid family necessity.

9. Before parting with this case we must note the fact that the judgment of the learned Additional Subordinate Judge is very sketchy and most unsatisfactory, and it leaves the litigants and the counsel concerned, and even the higher Court of appeal, in a state of doubt whether or not the learned Judge applied his mind to the evidence in the case before proceeding to dictate the judgment that he has dictated in this case. He ought to be cognizant of the fact that very great responsibility rests on the Court of first appeal, which is the ultimate Court on questions of fact, to write a judgment from which it may be clear to everybody concerned, that before recording findings of fact he did apply his mind to the materials upon the record relevant to the enquiry.

10. The result is that we dismiss the appeal with costs.

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