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1940 Supreme(SC) 19
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD THANKERTON, LORD ROMER, SIR GEORGE RANKIN, LUXMOORE L.J., AND MR. M. R. JAYAKAR.
HEM CHANDRA ROY CHAUDHURY - Appellant
Versus
SURADHANI DEBYA CHAUDHURANI - Respondents
On appeal from the High Court at Calcutta.
Decided On : May. 23. 1940.
Solicitors for appellant:T. L. Wilson & Co. Solicitors for respondent No.1: W. W. Box & Co.
A mortgage deed executed by a purdanashin woman is void against her if a material term is not understood. However, such a mortgage remains enforceable against the beneficiary of the trust who possesses the beneficial interest in the mortgaged property.
Headnote:(A) Civil Procedure Code, 1908 - Order XXXIV, r. 4, cl. 4 - Mortgage - Execution of deed by purdanashin woman - Requirement of free and intelligent consent - If a material feature of the transaction, such as personal liability, is not understood by a purdanashin woman, the document is inoperative against her - The bargain cannot be divided to uphold some parts while rejecting others - Protection is against being bound by a transaction lacking free and intelligent consent.
(B) Trust - Beneficiary’s interest - A beneficiary under a trust is competent to mortgage his interest in the property - The mortgage is enforceable against the beneficiary's interest even if the trustee is not personally bound by the deed.
(C) Civil Procedure Code, 1908 - Order XXXIV, r. 4, cl. 4 - Rights of subsequent mortgagees - Subsequent mortgagees are entitled to redeem the prior mortgage or receive their mortgage money from the surplus sale proceeds after satisfaction of the prior mortgage.
Facts of the case:
The appellant, a beneficiary of a trust, and his grandmother, the trustee and a purdanashin woman, executed a mortgage deed. The lower courts found that while the deed was read to the trustee, it was not explained, and she did not understand she was incurring personal liability. The appellant challenged the validity of the mortgage on this ground and also contested the relief granted to subsequent mortgagees.
Findings of Court:
The court found that since the trustee did not understand a significant feature of the transaction (personal liability), the mortgage deed did not bind her. However, the mortgage remained enforceable against the appellant as the beneficiary of the trust. The relief granted to subsequent mortgagees under the Civil Procedure Code was correct.
Issues: Whether a mortgage deed executed by a purdanashin woman is valid if she did not understand a key term like personal liability; whether such a mortgage is enforceable against the beneficiary of the trust; and whether subsequent mortgagees are entitled to relief under Order XXXIV, r. 4, cl. 4 of the Civil Procedure Code.
Ratio Decidendi: For a deed executed by a purdanashin woman to be valid, there must be free and intelligent consent. If a feature affecting the expediency of the transaction is not understood, the entire bargain is void against her. However, a beneficiary's interest in a trust can be mortgaged, and such a mortgage is enforceable against that interest regardless of the trustee's liability. Subsequent mortgagees have a statutory right to be paid from surplus proceeds or to redeem the prior mortgage.
Result: Appeal dismissed.
Legal Category Hierarchy
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property law
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mortgages
- enforcement of mortgage
- mortgage by trustee
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mortgages
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equity and personal law
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purdanashin women
- consent and execution of deeds
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purdanashin women
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practice and procedure
-
civil procedure code
- order xxxiv
- pleadings
-
civil procedure code
Judgement
Appeal (No. 80 of 1938) from a judgment and decree of the High Court (December 4, 1936) affirming a judgment and decree of the Subordinate Judge of Mymensingh (February 27, 1933).
The appellant, Hem Chandra Roy Chaudhury, was the proprietor of the Bailor Estate, in the district of Mymensingh, Bengal, and on attaining his majority in 1913 he appointed his grandmother, Nabin Kishore Chaudhurani, as trustee for the management of the estate. Between 1914 and 1917 they had
Law. Rep. 67 Ind. App. 309 ( 1939- 1940) Hem Chandra Roy Chaudhury V. Suradhani Debya Chaudhurani 108
jointly borrowed considerable sums of money from the Maharaja of Mymensingh on four mortgage deeds. The first of those mortgages was paid off by moneys raised from one Anath Bandhu Guha by means of a mortgage entered into on March 18, 1918. The other three mortgages were paid off with money raised by means of a mortgage of August 18, 1918, in favour of the first respondent, Suradhani Debya Chaudhurani, who lent Rs.1,20,000. The appellant and his grand mother also borrowed further sums from Anath Bandhu Guha under two mortgage deeds in 1920 and 1923.
The suit out of which this appeal arose was brought by the first respondent against the appellant and his grandmother for the enforcement of the mortgage of August 18, 1918. The respondents two to five, who were defendants three to six, were impleaded as the representatives of Anath Bandhu Guha, who had died before suit, and they were impleaded as being subsequent mortgagees of the whole property contained in the mortgage deed in suit. Nabin Kishore Chaudhurani, the second defendant, died before trial, and the appellant, the first defendant, was substituted in her place. On July 18, 1931, issues were framed, including one as to the sums due on the respective mortgages in favour of the plaintiff and of the defendants three to six, and also one on the question whether Nabin Kishore Chaudhurani, who was a purdanashin lady, had had the contents of the mortgage deed in suit read over to her and had understood them.
The facts appear from the judgment of the Judicial Committee.
The Subordinate Judge gave judgment for the plaintiff. He found that the bond in suit was read in the presence of Nabin Kishore Chaudhurani, " but there is no evidence that "the effect of the bond was explained to her," but he was of opinion that she " was fully aware of the nature of all the "mortgage bonds put in this suit, and that she understood "the effects thereof," save that she did not understand that there was a stipulation in the bond making her personally liable. He further ordered that the amounts due to defendants three to six under their bonds should be entered in the decree.
An appeal by the appellant to the High Court (Ghose and McNair JJ.) was dismissed. On the question whether Nabin Kishore Chaudhurani was bound by the mortgage bond in suit, they upheld the finding of the Subordinate Judge that she executed the document fully understanding what she was doing, although she did not understand that there was a stipulation making her personally liable. They accordingly held that the mortgage bond in suit was a valid document, and that the suit had been rightly decreed.
1940. May 6. S. P. Khambatta for the appellant. There being a total failure of proof of any explanation of the contents of the mortgage deed the document is inoperative against Nabin Kishore Chaudhurani. The doctrine relating to deeds executed by purdanashin women is that they either give an intelligent consent or they do not, and therefore where the deed contains more than one important term, and there is no contractual assent to one of those terms on her part, that must apply to the whole contract, and the Court cannot hold the purdanashin to the bargain at all, inasmuch as the different promises are inter-related matters connected with the same transaction. In the absence of affirmative and conclusive evidence that the deed was fully and carefully explained th
