Sita Ram Singh vs Khub Lal Singh

Dawson-Miller, C.J.—In my opinion the matters in dispute in this case are concluded by the finding of fact of the lower appellate Court, The suit was brought by the reversioners of Ramautar Singh against the mortgagees under a mortgage granted by his widow Dhanwanti Kuer after his death to secure payment of a sum of Rs. 400. The mortgage hypothecated certain property which formed part of the estate of her husband. That was in the year 1905. A suit was brought during the widow''s lifetime by the mortgagees on the mortgage. They succeeded in that suit and put up the property for sale in execution of the decree and themselves purchased it. The widow died in 1920 and the present suit was brought by the reversioners claiming to recover the property.

The question for determination in the suit is whether the mortgagees were entitled to a charge upon the whole estate or only upon the life-interest of the widow and that again depends upon whether the sum borrowed was borrowed by the widow for purposes of legal necessity. The allegation of the defendants is that of the Rs. 400, Rs. 226 had been borrowed in order to pay for Dhanwanti''s husband''s sradh. Rs. 174, the balance, was for the costs of litigation and maintenance. The evidence shows that although the income of the estate was about Rs. 2,000, still, after her husband''s death, Dhanwanti Kuer, the widow, was unable to get the estate into her possession. Therefore it seems highly probable that she was in a position in which it might be necessary to borrow the money for her expenses. Both the trial Court and the Subordinate Judge on appeal found that the money was borrowed by Dhanwanti Kuer for purposes of legal necessity and that she was in need of money at the time. That decision, however, has been challenged on the ground that the learned Subordinate Judge admitted in evidence a statement of Dhanwanti Kuer, who, as I have intimated, was dead at the time when the present suit was brought, made in a previous suit in the year 1908 in which she stated that she took a loan from Faujdar Singh and Sheoraj Singh to defray the expenses of the funeral rites of her husband. The learned Judge accepted that statement as admissible u/s 32, Clause (3), Evidence Act. It has been contended that the only part of that admission contrary to her pecuniary interest is the fact that she took the loan and not the remaining part, that she took the loan for a particular purpose. I am not able to agree to this proposition. I think the whole statement must be taken in order to ascertain exactly what the nature of this loan was. There might be a difference in her pecuniary liability, certainly in the liability of the estate she at that time represented if the loan was borrowed for necessary expenses or if the loan was borrowed for purposes which were not to be regarded as necessary expanses, and I do not see vary well how you can split up the admission into two parts. The whole thing works together and each part is necessary to explain the other. This I think is the view which has been taken in dealing with cases of this sort ever since the old case of Higham v. Ridgway (1823) 2 SMLC 348, which was decided in the year 1823. The learned Judge accepted that statement which was not necessarily conclusive and not necessarily binding upon the reversioners but which I think he was entitled to accept as a corroboration of the defendant''s story that in fact the money had been borrowed by Dhanwanti Kuer for purposes of legal necessity, and the further statement of one of the defendants himself that he had made enquiries at the date when the money was borrowed and he found that it was required by Dhanwanti Kuer in order to pay for her husband''s sradh. The learned Judge said:

Having regard to the statement of Mt. Dhanwanti Kuer, above alluded to, I see no reason to doubt the evidence of these witnesses that Rs. 200 was borrowed by Dhanwanti for her husband''s sradh. It is clear from her deposition also that litigation commenced soon after her husband''s death.

That is really the only criticism which has been made of this judgment and it does not seem to me that the criticism is a sound one. The matter is concluded by the findings of fact and I do not think that the learned Judge took into consideration any evidence which he was not legally entitled to consider.

The appeal will be dismissed with costs.

Macpherson, J.

I agree.