Ram Karan Mahto vs Dahur Mahton and Bilas Mahto

Foster, J.—Appeal No. 1085 of 1923 arises out of Suit No. 222 of 1921 and Appeal No. 1086 of 1923 arises out of Suit No. 223 of 19-81.

These suits were brought by a reversioner Dahur Mahton (whose father was Ramiad) against Ram Karan Mahto for recovery of certain land. In the former suit Ram Karan is in possession of the land as purchaser in execution of his own mortgage decree obtained against the mortgagor Musammat Basmutia who, it is agreed, waa the mother and heiress of the plaintiffs distant cousin''s agnates, Gulzari and Sheobaran. Basmutia waa the widow of Moti and her sons, Gulzari and Sheobaran, died without issue shortly after their father. In this case the suit turns on the question of legal justification of the mortgage. In the other suit Dahur the reversioner sued the said Ram Karan Mahto for recovery of other lands on the ground of deposit in Court made on the 6th June 1919 u/s 83 of the Transfer of Property Act of the redemption price of a zarpeshgi bond executed by the said Basmutia.

The two cases are so distinct in subject-matter that it is convenient to deal with them separately. Their only point of contact is that they are both brought by the reversioner of the last male owner, Gulzari or Sheobaran, for the recovery of property'' originally belonging to the common ancesr, tor of the plaintiff and his two cousins and of which Ram Karan, the defendant, has acquired possession by virtue of mortgage.

In Suit No. 222 of 1921 the facts leading to the present litigation are these. Basmutia having a Hindu widow''s estate, ?in 1905 executed in defendant Ram Karan''s favour a zarpeshgi bond for Rs. 192 and in 1908 a simple mortgage bond for Rs. 115. In 1914 or 1915 Ram Karan got a decree on. foot of these two mortgages and in execution purchased 1 bigha 8 cottahs. The plaintiff-reversioner, was not a party and after Basmutia''s death in November 1918, lie demanded possession from Ram Karan on the ground that the mortgages could not hind the reversionary interest. The defendant''s written statement purports to state the legal justification for the particular debts making up the two aggregate mortgage advances and the question we have to consider is whether the mortgage-deeds and the decree passed thereon can affect the plaintiff''s interest as reversionary heir. The two Courts below have agreed that the suit should be decreed and the defendant Ram Karan is now making a second appeal.

The consideration for the zarpeshgi bond of 1905 was made up of (a) Rs. 155-8-0 and (b) Rs. 36-8-0, total Rs. 192; that of the mortgage-bond of 1908 was made up of (c) Rs. 69-15 6 (d) Rs. 46. In regard to the amount (a) above, it is necessary to mention that shortly after the death of Basmutia''s two sons, she and her co-widow Bahuri executed a deed of gift in respect of 5 cottahs in favour of a Brahmin Swaini Bishudha Nand. In Suit No. 430 of 1905 the plaintiff''s father won a declaration that the gift did not bind the reversionary interest. The active defendant was Musammat Basmutia. It is alleged that part of the sum of Rs. 155-8-0 was made up of small advances, totalling either Rs. 100 or Rs. 150 according to the oral evidence to Basmutia on chitta for her expenses in the suit; and the rest was for the purchase of bullocks and agricultural expenses. There is little space left for the bullocks and agricultural expenses, if we accept the figure Rs. 150 or even Rs. 100 as the total of advances for the litigation. But the discussion has proceeded on broader lines.

Moti and Basmutia and their sons had 6 bighas ancestral property, we are informed, and prima facie a gift by a widow of 5 cottahs, one twenty-fourth of the whole inheritance might not be considered an extravagance; nor, if that be granted, would money spent for securing the gift'' to the donee in the suit of 1905 be necessarily unjustifiable. The whole might possibly in certain circumstances be regarded as a gift to a Brahmin for the benefit of the soul of the last male owner or the souls of the members of the joint family. I think that we would be at liberty to take this view, which is quite independent of the result of the suit of 1905, because I cannot find any ground for application of the rule of res judicata to the present defendant Ram Karan. But the circumstances which would support such a view are not to be found. Here was a matter in which the defendant could and should have helped the Court, but we are left in obscurity. We have no certainty what total area of lands was still in Basmutia''s possession when she made the grant to the Brahmin, nor do we know with what intention she made the gift, whether for her own merits or for those of other members of the family. Then, when the suit came about, it must be remembered that she had no existing rights in the property she was defending. We do not even know how much the expenditure amounted to. We know nothing so far as has been put before us of her means at the time of the litigation. As to her property, we have confused accounts in the brief before us. In the Munsif''s judgment it is mentioned that from the evidence of the defendant''s witness No. 3 it appears that in the year 1895 the Musammat was in possession of only 3 cottahs of land and the rest was in the possession of her creditors. In the Subordinate Judge''s judgment the same witness is quoted as authority for the same statement. But in the plaint it is surprising to see that in 1895, the very year in which this witness limits the property to 3 cottahs, there was a dispute in the Court of the District Judge in a succession certificate case and in March 1896 by a compromise between the parties it was agreed that the Musammat should get a life interest in the properties without having any right to create a charge upon them. With all this uncertainty as to what property was in possession of Musammat Basmutia, it is impossible to say that she had legal justification for spending money in defence of property which at the time of the expenditure had ceased to be hers.

As to the sum of Rs. 36-8-0 above no remarks were addressed to us. It purports to have been taken for the cost of purchase of potatoes and paddy seeds and the two Courts have held that the Musammat had so small an area in her personal possession that it was unlikely that she would need to borrow, so much for the expenses of cultivation. In my opinion it is not shown that |he lower Appellate Court took a wrong view in finding that legal necessity or legal justification for the zarpeshgi had not been proved.

I come now to the mortgage of 1808. The first item is Rs. 69-15-6 which I have marked (c) above. It was said to comprise the costs with interest decreed against Basmutia in the suit of 1905 already referred to. The justification is said to be the salvage of her property which was attached in execution. We are told that 3 cottahs of land were attached but it is not clear whether her life interest alone or the whole family interest was attached, and some of the evidence we are told indicates that only the potato crop on the land was under attachment. In such uncertain circumstances there are no grounds for forming an opinion which differs from that of the lower Appellate Court.

No remarks have been made on the subject of the last item, Rs. 46 marked (d) above I am of opinion that Appeal No. 1085 of 1923 should be dismissed.

I come now to Appeal No. 1086, Suit No. 223 of 1921. The zarpeshgi is of 1895 and the plaintiff has produced the challan showing a deposit of Rs. 98 on the 6th June 1919, the deposit purporting to have been made under the provisions of Section 83 of the Transfer of Property Act. The defendant says that this is not sufficient and that the redemption price is Rs. 596, that is Bs. 498 more. Here, however, the appellant is confronted with findings of fact. The learned Subordinate Judge has found that there is absolutely no satisfactory evidence to convince him that Ruchh Mahto (Moti''s father who is stated to have originally taken the advance from the defendant) ever took any loan from the defendant No. 1. There is no witness to support this part of the case, nor is there any scrap of paper to substantiate it. It is in evidence that Ruchh Mahto died before his son Moti. It is also in evidence that Ruchh Mahto died 30 or 32 years ago. It is said that an adjustment of accounts took place four years before the death of Ruchh Mahto. How was it that the defendant No. 1 did not take any steps to realise the amount from Ruchh or his son Moti or from the sons of Moti Mahto? Again the learned Subordinate Judge remarks that the debt of Ruchh Mahto has not been proved and therefore he thinks that Basmutia had no justification or legal necessity to execute any bond in respect of this debt. Lastly, he remarks that in the Cadastral Survey Khatian the defendant''s name is entered but the zarpeshgi is stated to be for Rs. 98.

This scrutiny of the defendant''s case is still more detailed in the judgment of the learned Munsif. Ram Karan Mahto has given his own evidence and the learned Munsif has examined it closely. His conclusion is that from the evidence of this defendant itself it appears that he could never have advanced any money to Ruchh. The point taken in appeal is that the lower Appellate Court would have treated the case more correctly if it had taken into account the recitals in the zarpeshgi bond in question which being of the year 1895 is old enough to deserve this special treatment; and the case of Nanda Lal Dhur Biswas v. Jagat Kishort Achariya Chowdhury 36 Ind. Cas. 420 : 44 C. 186 : 20 M.L.T. 335 : 31 M.L.J. 563 : (1916) 2 M.W.N. 336 : 4 L.W. 458 : 18 Bom. L.R. 868 : 14 A.L.J. 1103 : 24 C.L.J. 487 : 1 P.L.W. 1 : 21 C.W.N. 225 : 10 Bur. L.R. 177 : 43 I.A. 249 is quoted. It appears to me that the facts of the present case are not such as to attract the rule mentioned in that decision. It is to be remembered that in that case nearly 60 years had passed between the date of the first deed and the institution of the proceedings and the attempt to support by contemporary evidence statements as to the private affairs of the deceased man or his widows could only result as might have been expected, in a number of witnesses attempting to give first-hand evidence upon matters which occurred when they were of tender years and now could only be dimly and imperfectly remembered. Their Lordships were of opinion that the recitals in the deeds could not be disregarded, nor, on the other hand could any fixed and inflexible rule be laid down as to the proper weight which they were entitled to receive. It was held that the recitals in the circumstances of that case were clear evidence of the representation made to the purchaser as to legal necessity; and the principle underlying the rule was indicated in one sentence "To hold otherwise would result in deciding that a title becomes weaker as it grows older, so that a transaction perfectly honest and legitimate when it took place would ultimately be incapable of j ratification merely owing to the passage of time." Here in the present case, as I have shown, the statement of the person most acquainted with the facts has been recorded. He is in fact the person who has the duty of proving his own case. It does not appear to me, therefore, that the rule can be invoked in the present appeal. Moreover there is a reservation in the judgment which I have quoted, that the representation should be consistent with the probabilities and circumstances of the case. It appears to me that the passages which I have quoted from the judgments of the two Courts below indicate that no recitals as to legal necessity could be sustained in the present, in view of the facts and circumstances which have been arrived at.

There is only one question remaining, whether the mesne profits which have been awarded should have been awarded and whether a right time has been fixed. In both cases the claim has been decreed. In Suit No. 222 it is obvious that the reversioner is entitled, if he succeeds in avoiding the sale to the defendant, to mesne profits from the date of suit. In Suit No. 223 mesne profits have been awarded from the date of the deposit purporting to have been made u/s 83 of the Transfer of Property Act. I have found that the whole dues under the mortgage, namely, Rs. 98 were in fact deposited, so that there was a compliance with the terms of the section. The consequence of the deposit u/s 83 is shown in Section 84 which provides that "when the mortgagor or such other person as aforesaid has tendered or deposited in Court u/s 83 the amount remaining due on the mortgage, interest on the principal money shall cease from the date of the tender or as soon as the mortgagor or such other person as aforesaid has done all that has to be done by him to enable the mortgagee to take such amount out of Court, as the case may be." Now, the interest due on the advance of Rs. 98 which has been found to have been made ceased when the deposit was made under s 83. That interest consisted under the contract between the parties, in the usufruct of the land granted under the zarpeshgi. It follows from this that the mesne profits are fairly taken from the date of the deposit u/s 83.'' The terms of Section 84 which I have quoted would indicate that possibly a week or two would be deducted for the purpose of serving notice on the mortgagee, but we are dealing with land which has its seasonable crops and it does not seem necessary to consider such a email matter as that. In my opinion mesne profits have been rightly awarded and the right time has been fixed in the two cases.

I would dismiss both these appeals with costs.

Miller, C. J.

I agree.