Ebadut Ali v. Muhammad Fareed

1. The plaintiff in this case was one Ebadut Ali. He appears to have been the agent of a family to whom had been given a ‘patni’ grant of the property now in question. From time to time various members of this family took loans from Ebadut Ali, and on three occasions executed mortgages in hia favour. The dates of these mortgages are, the 13th Jet 1306, for Rs. 2,500, by Mt. Jharkhun and Muhammad Latif, corresponding in date to 28th May, 1899; 17th May, 1900 for Rs. 1,000 by Muhammad Latif alone, and 15th October, 1903 for Rs. 1,000 by Mt. Jharkhun and her six children, Muhammad Fareed, Muhammad Latif and four daughters. In this last mortgage there is a proviso, that the mortgagee shall pay to the zamindar to protect the property from sale the rent due to the zamindar, and shall add to the sum for which the property is held in lien all sums so paid to the zamindar with interest at two per cent, per mensem. The property mortgaged came into possession of this family by a deed of gift, and on a previous litigation it has been found, that each member of this family holds a one-seventh share in the property. This finding has been accepted as defining correctly the rights of the mortgagors. Ebadut Ali has a brother Nijabut. He, from time to time, has purchased approximately a nine-annas share in this property from Mt. Jharkhun and members of her family; and one Shillingford is in possession of 7-annas, by virtue of purchases from other members of the family, and of a ‘darpatni’ of the interest of the eldest son Muhammad Latif.

2. Ebadut Ali now sues to recover his mortgage-money, and after adding the interest due on the various mortgages, and the sums alleged to have been paid to the zamindar in payment of rent, and deducting therefrom nearly Rs. 7,000 paid as interest, the total amount of his dues is said to be Rs. 11,970. In the lower Court no member of the mortgagors' family contested the suit, nor did Nijabut enter into contest. The only contest was that put forward by Mr. Shillingford, and the grounds of that contest ware: firstly, that the mortgages were void for want of consideration; secondly, that Nijabut was a ‘banamidar’ for Ebadut in the purchase made from the mortgagors of the right of redemption; thirdly, that the mortgages had been extinguished by the enjoyment by Ebadut of the property as agent of the mortgagors and that he had placed to his own credit;, from the funds coming into his hands on behalf of the mortgagors, a sufficient sum to redeem the mortgages; and lastly, that Mr. Shillingford was not required to redeem the mortgages to save his darpatni interest in the property. These points were found in favour of the plaintiff Ebadut Ali. The only point upon which Ebadut Ali feels a grievance under the decree is, that no decree has been made for the sale of the ‘durpatni’ to defray the mortgage-debt. Upon this ground he appealed and Shillingford filed a cross-appeal, taking for the most part the grounds urged in the lower Court. On the appeal coming on for hearing, Mr. Mustafa Khan for the appellant concedes that his appeal is without substance. The ‘durpatni’ certainly cannot be sold, though it may be voidable at the instance of the auction-purchaser if the mortgage-debt is not paid. The appeal is dismissed with costs. Upon the cross-appeal we take in order the grounds urged in the lower Court. The first is, that no consideration passed under this; mortgage. Where a document is in the hands of the mortgagee the presumption is that consideration passed. The first step in the throwing of the burden of proof upon the other side, is a statement of fact which might render it probable that the mortgagor would execute a mort gage without consideration. No such statement of fact has been put before us. There is nothing to suggest; any temptation on the part of Muhammad Latif and the family, of which he was the head, to execute a document without consideration. We agree with the learned Subordinate Judge that there is nothing to suggest that no consideration passed, and that we must accept the statement set forth in the deeds themselves that consideration did pass.

3. The second point is, whether Nijabut is the ‘benamidar’ for Ebadut. Beyond the fact that he is his brother there is nothing on the record to suggest; a ‘benami’ transaction. The evidence of possession by Ebadut in the nine annas purchased is given by witnesses entirely unreliable. There are only three of them, and two of them are the brother and debtor of Shillingford's patwari. We agree with the conclusions arrived at by the lower Court, that there is nothing to show that Ebadut and Nijabut are the same person, or that Ebadut; has any interest in the equity of redemption.

4. The third point for consideration is, whether in the appropriation to himself of the proceeds of this property Ebadut has recouped himself to the full of the mortgages on the property. Here again we find ourselves in great difficulty owing to the paucity of the evidence upon the record upon this issue. There is very little to show what is the actual value of the property. We know as a fact, that the family consisted of seven members, and they have apparently been living in some comfort since the date of the death of Goghan, by whom this deed of gift was made. It is obvious that large sums must have been paid to them from time to time by Ebadut. It is not suggested by themselves, that the whole of the amount due under the mortgages has been paid up, and though we can see that it is very difficult indeed for a third party to show substantially how much has gone into the hands of Ebadut in satisfaction of the mortgages, and how much into the hands of the mortgagors for their maintenance, the burden of proof is on the third party to show that Ebadut has, from time to time, taken from the estate sufficient to clear off the mortgages. We find as a fact that there has not been any payment beyond the payments admitted in the plaint. The next point, which does not seem to have been argued in the lower Court but which is obvious on the face of it in this Court, is, that there is nothing on the record to show that Fareed derived any benefit in this mortgage. He was a minor at the time of the execution. The execution was made and admitted by his mother.

5. The case law on the subject has been fully expounded in Mafaza Hosain v. Basid Sheikh(1) and Ram Gharan Sanyal v. Anukul Chandra Acharjya(2). It is settled that where a Muhammdan mother as de facto guardian undertakes to alienate or encumber her minor son's property, the burden of proof is on the alienee or mortgagee to prove that the transaction was for the benefit of the minor. In the document itself it is set forth that the money is being borrowed for the liquidation of a debt due by Muhammad Latif. Clearly the paying up of his brothers's debt, though a fine act, was a quixotic act, not an act in itself for the benefit of the minor. Such a transaction could not be entered into by the mother, and is void against the minor unless accepted by him on his attaining his majority. There is no evidence on the record of his having accepted the liability incurred by his mother. We hold that the mortgage does not cover the right, title and interest of the minor Fareed. We hold that it does cover the interest of Mt. Jharkhun and Muhammad Latif. How far it covers the interest of the other four daughters will be considered in due course. The last point taken by the learned vakil for the appellant is, that the account taken by the lower Court is on the face of it wrong, that it is an exorbitant and monstrous account, and that in equity this Court should interfere and re-arrange that account. We are put to great difficulty in this matter owing to the supineness of the respondent in the lower Court. He does not seem to have troubled to appear before the lower Court's officers to contest the account that was to be made. The result was that the account was made by those officers on the representations of the plaintiff only.

6. We are asked to remand the case upon this point and to direct that a commission be issued for the taking of an account, that the plaintiff be put to the proof of payments made to the zamindar, and to the proof also that these payments ware made from his own pocket and not from the money which came into his hands from the profits of the estate, of which he was, on behalf of the mortgagors, the agent-in-charge. There is at the outest an error in the account, inasmuch as for the second mortgage the interest is calculated 1 ½ percent, per mensem instead of at ½ per cent, per mensen as set forth in the deed itself. There is also another patent error in these accounts, and that is, that they have all been mixed together and a joint account taken upon the three mortgages. The dues on the three mortgages are totally dissimilar and must be calculated separately. The first mortgage was executed by Jharkhun and Muhammad Latif jointly, the second was executed by Latif, and the third by the whole family and in addition to this, the sums payable to the zamindar are not to be added to the sums due on the first and second mortgages but only to the sum due on the third mortgage. It is clear that there must be a re-making of the account. In re-making of that account we give the respondent leave to enter an appearance before the lower Court, and make such representations with regard to the making of that account as he may be advised to make. The decree of this Court will be only for the taking of an account. It will be left to lower Court to proceed with the suit from that point. After making the account in accordance with the final decision of this case, the Court of the Subordinate Judge will direct that three months from the date of the completion of the account, the mortgaged property will be put up to sale, if the full amount due shall not have been paid. It is suggested by the learned vakil for the appellant, that inasmuch as Nijabut is the brother of Ebadut, therefore, the provisions of the last clause of Section 60 of the Transfer of Property Act do not apply, and that in equity an order be made that Shillingford be allowed to redeem his own share in the mortgaged property without redeeming the whole mortgage. In this contention there does not seem to us to be any substance whatsoever.

7. The final point to be considered is what rights, titles and interests have been mortgaged by the deed of 15th October, 1903. It is admitted that the right, title and interest of Najibun, that is a one-seventh share in the property, had been purchased by Shillingford on a date prior to the execution of the mortgage of 1903. Certainly the mortgagee has no lien on Shillingford's interest in that share. The interest of Fareed, as we have already stated, is exempt. Lastly we have to consider whether there is a lien on the interests of the three other sisters. On p. 22, of the paper-book, we read an endorsement by the Officiating Sub-Registrar who registered this document:

“The last four executants, namely, the daughters of Mt. Jharkhun, begged it to be noted that the signatures and marks had been obtained on blank paper on the clear understanding that no mention should be made in the papers of any previous transaction made by their mother and brother with the claimants.”

8. In our view this was not an admission, of execution. There having been no admission of execution, the Registrar had no jurisdiction to register the document. The document is, therefore to be regarded as unregistered. But in arriving at this conclusion, we are faced with the difficulty that in the case of David Yule v. Ram Khelwan Sahai(3). the Divisional Bench of the Calcutta High Court held that

“the Sub-Registrar had jurisdiction to register the deed. There was no defeat in his jurisdiction. When Baijnath Sahai admitted his signature to the deed, the Sub-Registrar was entitled to regard this as an admission of execution and accordingly rightly registered it. Farther on the mereits we do not believe shat Baijnath was telling the truth when he said he merely signed his name on a blank sheet of paper. The plaintiffs have adduced abundant evidence to prove that the bond was written on the paper before Baijnath signed it.”

9. We should have felt obliged to refer this matter to a Full Bench if the judgment had ended with the words,

“when Baij Nath Sahai admitted his signature to deed, the Sub-Registrar was entitled to regard this as an admission of execution and accordingly rightly registered it.”

10. But the case was not decided solely upon that point; there was a definite finding of fact that Baijnath Sahai was not telling the truth when he said that he had signed his name on blank paper. In what terms he admitted his signature is not stated; from the judgment and from the head-note it appears that in addition to the signature was an endorsement in the executant's own handwriting:

“The mortgage-bond for Rs. 21,750 on account of hundis executed by me is correct.”

11. We have it in the case before us now from the Registrar's endorsement itself, that there was a direct denial of execution of the document as drawn up. In our view, execution consists in signing a document written out and read over and understood, and does not consist of merely signing a name upon a blank sheet of paper. To be executed a document must be in existence; where there is no document in existence there cannot be execution. But this in the present case is not the whole point. Where an executant clearly says that he signed on blank paper and that the document which he had authorized is not the document which he contemplated, the statement is a denial not an admission, of execution. The facts of the case of David Yule v. Ram Khelwan Sahai are clearly distinguishable from those of the present case. The Registrar was required by S. 35, Cl. (3), to refuse to register the document as to the four ladies denying, and register it only as to the persons admitting execution. We must regard the document as registered only as regards Mt. Jharkhun and Muhammad Latif, and unregistered as to the other four ladies.

12. It follows, therefore that the interests which passed under the mortgage are the interests of Jharkhun and Latif only, that Shillingford as dar-patnidar has aright to redeem these interests, that if he fails to redeem those interests, the dar-patni which he has taken subsequent to the mortgage is voidable at the instance of the auction-purchaser. We note before concluding this judgment that the court-fee is Rs. 10. This fact was brought to our notice at the conclusion of the appeal; we should otherwise have refused to hear the learned vakil for the respondents until the proper court-fee had been paid. Inasmuch as the matter had been heard at some length before the fact; was brought to our notice we allowed the hearing to continue, but we direct the Registrar to take measures to secure that no decree be drawn up in the respondent's favour upon his cross-appeal, until such court-fees as he, as taxing officer, may assess have been paid by the respondent upon his cross-appeal. If these fees are not paid within 15 days of the date of his assessment the appeal will stand dismissed with costs. If the court-fees are paid within time the cross-appeal will be decreed in part in accordance with this judgment, each side bearing his own costs.

V.S/R.K

13. Appeal dismissed.