Judgement

Appeal (No. 65 of 1938) from a judgment and two decrees of the High Court (June 24, 1936) reversing a judgment and decree of the Subordinate Judge of Khulna (September 29, 1934).

The suit out of which this appeal arose was brought by the appellant, the Bank of Khulna, Ld., on March 31, 1930, for the recovery of the principal and interest due under a mortgage deed, dated March 18, 1925, executed by Nirod Bashini Mitra, a Hindu purdanashin woman, her husband, Bhuban Mohan Mitra, and Jnan Prokas Mitra, her eldest son, for a loan of Rs.28,000, with compound interest at 13 annas per cent, per mensem, on the security of certain agricultural lands and a dwelling-house in the town of Khulna, all of which belonged to Nirod Bashini Mitra in her absolute title. The original defendants were the three executants of the deed, but both husband and wife died pending the hearing of the action, and the present respondents are their heirs.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge held that Nirod Bashini Mitra was aware of the contract in the mortgage deed so far as it related to the agricultural lands, but that she was not aware of the inclusion in it of her house property, and that the deed was not explained to her. He made a mortgage decree limited to the agricultural lands only. ,

On appeal, the High Court (Mukerji and S. K. Ghose JJ.) agreed with the Subordinate Judges findings of fact, and in particular that the deed had not been explained to Nirod Bashini Mitra, but they held that those findings must affect the deed as a whole, and that the deed must be condemned as a whole.

C. S. Rewcastle K.C. and S. I. J. Hyam for the appellant.

W. W. K. Page and S. P. Khambatta for the respondents.

1940. June 17. The judgment of their Lordships was delivered by LORD THANKERTON. This is an appeal from a judgment and two decrees of the High Court of Judicature at Fort William in Bengal, dated June 24, 1936, which set aside a judgment and decree of the Subordinate Judge of Khulna, dated September 29, 1934, and dismissed the appellants mortgage suit.

The present suit was instituted by the appellant on March 31, 1930, for recovery of the principal and interest due under a mortgage deed, dated March 18, 1925, executed by Nirod Bashini Mitra, a Hindu married woman, Bhuban Mohan Mitra, her husband, and Jnan Prokas Mitra, her eldest son, for a loan of Rs.28,000, on the security of certain agricultural lands and a dwelling-house, all of which belonged to Nirod Bashini Mitra in her absolute title. The original defendants were Nirod Bashini Mitra, as defendant No. 1, her husband, as defendant No. 2, and her eldest son, as defendant No. 3.

Defendant No. 1 died on March 18, 1932, and defendant No. 2 died on October 22, 1933. They left three sons; the eldest son was defendant No. 3, and he has not appeared in the suit. The second son, Jyoti Prokash Mitra, defendant No. 1 and respondent No. 1 in this appeal, is the main contesting defendant. The third son, Jasho Prokas Mitra, is now insolvent, and the Official Assignee of Bengal appears in his interest as respondent No. 2 in this appeal. It is unnecessary, for the purposes of this appeal, to refer to the delays and vicissitudes of procedure which took place prior to the trial of the suit in August, 1934. The Subordinate Judge delivered judgment on September 29, 1934. He rejected the defendants’ case as to fraud and undue influence, and other minor issues, and he held that Nirod Bashini was aware of the contract in the mortgage deed so far as it related to the agricultural lands, but that she was not so aware as to the inclusion of her house property, and that the deed was not explained to her; he therefore held that the deed was binding on her so far as it related to the agricultural property, and granted a preliminary decree so limited on September 29, 1934, and a final decree was passed on November 30, 1934. From that decree the present respondent No. 1 appealed,