Sri Gajapati Radhamani Garu v. Maharani Sri Pusapati Alakara Jeswari
BS649868
PRIVY COUNCIL
Before:-on the hearing of the Appeal :- Lord Waston, Sir Barnes Peacock, and Sir Richard Couch. on the delivery of the Judgment :- Lord Waston, Lord Hobhouse, Lord Morris, Sir Richard Couch, and Lord Shand.
0 D/d. 29, 30, 31.1.1890/
23.7.1892
Sri Gajapati Radhamani Garu - Defendants
Versus
Maharani Sri Pusapati Alakara Jeswari - Plaintiff
And the Revived Appeal.
On Appeal from the High Court in Madras.
Solicitors for Appellant :- Pemberton & Garth.
Solicitors for Respondent :- R.T.Tasker.
Hindu Law - Co-Widows - Widow's Power of Alienation - Absence of co-Widow's Consent.
[Para ]
A mortgage by a Hindu widow even for necessary purposes without the concurrence of her co-widow is not binding upon the joint estate which has descended from their deceased husband so as to affect the interest of the co-widow.
Quaere, whether a case for borrowing without the co-widow's consent could be established so as to empower one widow so to bind the estate; certainly it cannot where the concurrence of the co-widow was not even applied for. In this case the mortgage on its true construction did not purport to bind the whole estate.
Appeal from a decree of the High Court (December 2, 1884), reversing a decree of the District Judge of Ganjam (November 5, 1883).
The facts are stated in the judgment of their Lordships.
Doyne, for the Appellant, contended that the Respondent had no right to hold the lands comprised in the mortgage liable for the mortgage debt after the death of the mortgagor. The mortgagor had no power to convey beyond the extent of her own interest; and on the true construction of the mortgage she only intended to bind her own widow's estate. She had no power to transfer the Appellant's interest or to render her personally liable for the amount borrowed. She could not bind her co-widow either by the general law or on the ground of justifying necessity. No necessity for borrowing had been proved; and still less was there any necessity for mortgaging without the co-widow's consent. The Respondent had not shewn that she had made such inquiries as she was legally bound to make before advancing her money. Further than that, she had neglected to take during the life of the mortgagor such steps as she was authorised by the mortgage bonds to take for recovering her advances or the interest thereon from the usufruct of the mortgaged lands. Reference was made to Hunoomanpersaud Panday v. Munraj Koonweree, 6 Moore's Ind. Ap. Ca. 393; Sri Gajapathi Nilamani v. Sri Gajapathi Radhamoni, Law Rep. 4 Ind. Ap. 212, 221 Vol. XIX. Sri Gajapathi Radhika v. Sri Gajapathi Nilamoni, 13 Moore's Ind. Ap. Ca. 497.
Mayne, for the Respondent, contended that the incumbrances created by Nilamani, the mortgagor, were a valid charge upon the estate. There were concurrent findings of fact as to the necessity for raising the loans; and beyond that the representations made to the Respondent and the result of the inquiries made by her justified her advancing the moneys and entitled her to recover them. With regard to the contention that she never intended to do more than bind her own limited interest, that point was not taken in the Court below or in the pleadings. The principle of Hindu law is that in a case of necessity one parcener can bind another, and widow can bind her husband's reversionary heirs: so also it is a principle of the same law that in case of necessity a widow can bind her co-widow as regards the estate in which they are both interested: see Mitak. c. 1, section 1, volume 27. When the act is done for the benefit of all interested, their express consent is not required. Reference was made to 2 Strange's Hindu Law, pp. 339, 340; Bissumbhur Naik v. Sudasheep Mohapatter, 1 Suth.W.R. 96; Juggemath Khootia v. Doobo Misser, 14 Suth. W.R. 80; Ponappa Pillai v. Pappuvayyangar, Ind. L.R. 4 Mad. 18. As to the respective rights of the two widows in their husband's estate, see Sri Gajapaty Hari Krishna v. Sri Gajapathi Radhika, 2 Madras, H.C.R. 369; Sri Gajapathi Radhika v. Sri Gajapathi Nilamoni, 13 Moore's Ind. Ap. Ca. 497; Bhagwandeen Doobey v. Myna Bace, 11 Moore's Ind. Ap. Ca. 487; Tanjore Case, 3 Madras, H.C.R. 424; Babaji Mahadaji v. Krishnaji Deoji, Ind. L.R. 2 Bomb. 666.
Doyne, was not heard in reply.
Cases Referred :-
Babaji Mahadaji v. Krishnaji Deoji, Ind. L.R. 2 Bomb. 666.
Bhugwandeen Doobey v. Myna Baee, 11 Moore's Ind. Ap. Ca. 487, 515, 516.
Bissumbhur Naik v. Sudasheep Mohapatter, 1 Suth.W.R. 96.
Gajapati Nilamani v. Gajapati Radhamani, Law Rep. 4 Ind. Ap. 212.
Juggemath Khootia v. Doobo Misser, 14 Suth. W.R. 80.
Ponappa Pillai v. Pappuvayyangar, Ind. L.R. 4 Mad. 18.
Sri Gajapathi Nilamani v. Sri Gajapathi Radhamoni, Law Rep. 4 Ind. Ap. 212, 221 Vol. XIX.
Sri Gajapathi Radhika v. Sri Gajapathi Nilamoni, 13 Moore's Ind. Ap. Ca. 497.
Sri Gajapaty Hari Krishna v. Sri Gajapathi Radhika, 2 Madras, H.C.R. 369.
Tanjore Case, 3 Madras, H.C.R. 424.
JUDGMENT
The judgment of their Lordships was delivered by
1892 July 23.
Sir Richard Couch :-
This is an appeal from a judgment and decree of the High Court of Judicature at Madras, in a suit in which the deceased predecessor in estate of the Respondent was the Plaintiff, and Radhamani, who is now dead, was the Defendant.
The suit was brought in the District Court of Ganjam to recover Rs. 77,706 4a. interest and principle, due upon two mortgage bonds, on dated the 30th of March, 1874, for Rs. 35,000, repayable on the 23rd of April, 1880, the other dated the 3rd of July, 1874, repayable on the 6th of July, 1881.
Both these mortgage deeds were executed by Neelamani Patta Maha Devi, and both contain a possessory mortgage of the Talagam Khandam in the Tekkali estate.
Neelamani died on the 1st of October, 1882, and the Plaintiff sought to recover the debts from the mortgaged property in the hands of her surviving co-widow, Radhamani, and from her other property.
Radhamani answered that the alienation, having been made without her consent, was invalid; and, further, that there was no necessity for the loans so as to bind the estate beyond the lifetime of Neelamani.
The following issues were laid down:-
I. Could Neelamani (deceased) under any circumstances create a valid charge on the property binding on the estate in the hands of the survivor, a co-widow?
II. If so, was there any necessity in the present case to contract the loan so as to bind the estate?
The first mortgage was as follows:-
"Deed of mortgage with possession, dated Monday, the 18th day of Chaitra Sudha, of the year Bhava, corresponding to the 30th of March, 1874, executed and given by Sri Gajapati Neelamanai Patta Maha Devi Garu, widow Sri Gajapati Krishna Chandra Devu Raja Garu, of Kshatriya caste, zamindarni, residing in Raghunathapuram, in Tekkali taluq, in Ganjam district, to Sri Kakarlapudi Neelayyamma Garu, widow of Sri Kakarlapudi Bangaru Razu Garu, mokhasadar of Kshatriya caste, residing in Pandranki, within the jurisdiction of the Registrar of Bimlipatam, in Vizagapatam district.
"The amount received from you this day as a loan for the purpose of paying up the arrears of peshkush due by me to Government for the khandams of Talagam, Nandigam, and Nowgam comprised in my zamindary, and for the purpose of discharging the debts contracted by me from Abburu Surya Narayana Pantulu Garu, on the mortgage of Talagam khandam for the aforesaid purpose, is Rs. 35,000.
"It is agreed as follows:-
"As I have received thirty-five thousand rupees, I will pay interest hereon at ten annas per cent. per mensem. I have mortgaged to you and put in your possession Talagam and other villages specified in the schedule hereunto annexed, situated in the khandam of Talagam in the taluq of Tekkali, within the jurisdiction of the Sub-Registrar of Tekkali, in the Registration District of Ganjam, included in my half share of Tekkali taluq, yielding an income of Rs. 16,154 per annum by Zeraiti, Shrotriam, &c., assessed with peshkush of Rs. 9817, being my husband's share of the taluq which came into my possession according to the judgment of the Privy Council, and which has been in my possession and enjoyment. You shall grant leases from Fasli 1284, till this bond is discharged, to renters arranged by me either for the amount mentioned in the schedule or for a higher amount, and you shall receive muchalikas (counterparts of lease deeds) from them. The money collected by your officer form them (renters) at the several instalments of each year shall be placed in box in my cutcherry (office) room, under lock and key of your officer and my officer; and I myself will provide for the safety of the same. I myself will be answerable for any harm that may befall by act of State or act of God. Out of the money realized, I will receive Rs. 150 a month for my expenses, and grant receipts therefor to your officer. You yourself shall pay, on my behalf, at the several instalments, the peshkush due to Government each year on the said khandam of Talagam, take receipts in my name, and hand them over to me. Out of the balance you shall take Rs. 2625, the annual interest due to you from this date to the 13th Chaitra Suddha (April) of each year, and Rs. (360) three hundred and sixty a year for expenses of your establishment, in all Rs. 2985, and pay over the surplus to me, and take receipts. The public expenses incurred for civil and summary suits which you may conduct for the recovery of money not paid by renters according to the several instalments shall be met from the balance on hand. The money again collected shall be added to the balance on hand. If the property mortgaged is not sufficient to meet the aforesaid peshkush and other expenses, the same shall be made good out of my other property. As you do not grant leases to those whom you like, but only to those who are appointed by me, I myself will be answerable for any profit or loss that may result.
"If the principle of Rs. 35,000, and the interest accrued up to date, is paid in a lump on the 13th Chaitra Sudha of the year Pramadi (April, 1879), the date fixed for the repayment hereof. or in default of payment on that date, at some time between that date and the 13th Chaitra Suddha of the year Vikrama (April 23rd, 1880), the said mortgaged villages shall at once be put in my possession and this document returned to me. In default of payment in the said manner. I will pay the principle with interest at a higher rate, to wit, at 12 annas per cent. per mensem from the date of the bond. If any disputes arise with regard to any lands in the villages, &c., under mortgage, in connection with boundaries or other rights, I myself will look after them, but you shall you nothing to do with the same. This is the deed of mortgage with possession executed and given with my consent."
The second mortgage was similar to the first in all points essential to the decision of the case. The District Judge dismissed the suit with costs.
As to the first issue, he held that Neelamani had no power to bind the interest of Radhamani without her consent, and that the mortgage did not in law bind the estate beyond the life of Neelamani, and further, he thought that the parties to the mortgage did not believe that Neelamani was charging or intended to charge any interest of Radhamani.
He stated that his finding on the first issue was sufficient to dispose of the case, and that he based his judgment upon it. He, however, proceeded to try the second issue, and with reference to his finding upon that issue it may be as well to call attention to the fact that the Rs. 35,000 secured by the first mortgage was not merely for the payment of revenue, but also for the payment of debts contracted by Neelamani.
The District Judge held that Radhamani was not liable for those debts, and that there was no necessity, therefore, so far as she was concerned, to charge her interest in the estate for the amount borrowed to pay the debts. He said; "There was a real necessity, and the estate benefited to the extent of the money paid in discharge of the peshkush; but the transaction viewed as a whole was not, in my opinion, bona fide. Better terms might have been made for extinguishing the debt, and the sum advanced was excessive. The most that could be charged to the estate would be the principle sums paid for peshkush, and even then some deduction should be made on account of the profits which ought properly to have gone towards the extinction of the principle, and this I should have some difficulty in determining without taking an account of the actual profits of the khandam for the six years."
The High Court upon appeal reversed the judgment and decree of the District Judge, and gave a decree against the Defendant for the amount found due upon the mortgages. As to Radhamani's consent not having been obtained, they said it would have been impossible for Neelamani to have obtained Radhamani's assent to any arrangement which she might have proposed at a time when they were in litigation, and that the moneys borrowed were for Radhamani's benefit, and that she was bound by the mortgages.
It by no means follows that if it had been necessary to borrow money to save the estate of the two widows from sale for arrears of revenue, Radhamani would have refused to consent to mortgage the joint interest of the widows for a sum sufficient to discharge those arrears, notwithstanding the widows were at enmity, and actually engaged in litigation with each other respecting the estate.
At any rate an application was not made to Radhamani for her consent, and without such an application it is impossible to hold, even if that would be sufficient, the Neelamani was under such a necessity of borrowing money without Radhamani's consent for the preservation of the estate a mortgage by Neelamani alone would be binding upon Radhamani's interest in the event of her survival.
But there was a very good reason why Neelamani did not apply to Radhamani for her consent. The mortgages were in 1874, whereas it appears that down to the year 1877 Neelamani was contending that Radhamani as junior widow took no interest in the estate, but was merely entitled to maintenance: Gajapati Nilamani v. Gajapati Radhamani, Law Rep. 4 Ind. Ap. 212. It was not determined until 1877 that Radhamani had a joint interest in the estate. If Neelamani had applied to Radhamani to join in the mortgages she would have impliedly admitted that Radhamani had a joint interest.
It may be assumed for the present judgment, without deciding the point, that there was a sufficient necessity for borrowing money to pay the Government revenue, or even for the payment of Neelmani's debt; but that necessity did not render a mortgage by one widow binding upon the joint estate which had descended from their deceased husband so as to affect the interest of the surviving widow; Bhugwandeen Doobey v. Myna Baee, 11 Moore's Ind. Ap. Ca. 515, 516. But, irrespectively of these considerations, it appears clear to their Lordships that the mortgages were not so framed as to bind the estate in the hands of Radhamani, as the surviving widow after the death of Neelamani. Many of the stipulations in the mortgages were personal to Neelamani, and they cannot be held to have been binding or intended to be binding upon Radhamani or her interest in the event of her surviving.
Their Lordships are, therefore, of opinion that the mortgages were not binding upon Radhamani, and that the decree of the High Court ought to be reversed, with costs in that Court, and the decree of the District Judge affirmed.
They will humbly advise Her Majesty accordingly.
The Respondent must pay the costs of this appeal.
.