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1913 Supreme(Mad) 190
IN THE HIGH COURT OF MARAS
Subramania Nadan, Minor By His
Versus
Ramasami Nadan And Ors.
Decided On : 4 August, 1913
The central legal point established in the judgment is that a mortgage deed must be shown to be for family necessity or that the purchaser believed bona fide that it was for family necessity in order to be binding on the plaintiff.
Headnote:
Mortgage Deed - Family Necessity - Court held that the mortgage deed was binding on the plaintiff's share of the mortgaged properties only to the extent of half of Rs. 723 and interest thereon. The court also set aside the order directing the plaintiff to bear the costs of certain defendants.
Fact of the Case:
The court considered whether the mortgage deed executed by the 1st defendant to the 17th defendant was binding on the plaintiff, particularly in relation to the items of consideration for the transaction.
Finding of the Court:
The court found that the mortgage deed was binding on the plaintiff's share of the mortgaged properties only to the extent of half of Rs. 723 and interest thereon. The court also set aside the order directing the plaintiff to bear the costs of certain defendants.
Issues: The issues revolved around the binding nature of the mortgage deed on the plaintiff and the consideration for the transaction, particularly in relation to family necessity.
Ratio Decidendi: The court held that the mortgage deed must be shown to be for family necessity or that the purchaser believed bona fide that it was for family necessity. No necessity was shown or alleged, and the purchaser made no enquiries at all, leading the court to hold the mortgage not binding on the plaintiff.
Final Decision: The mortgage deed was held binding on the plaintiff's share of the mortgaged properties only to the extent of half of Rs. 723 and interest thereon. The order directing the plaintiff to bear the costs of certain defendants was set aside.
1.The first point raised by the Appellant is as to whether the mortgage deed executed by the 1st defendant to the 17th defendant Exhibit III is binding on the plaintiff. Two of the three items of consideration for this transaction aggregating Rs. 677 were admittedly devoted or intended to be devoted to paying the sale price of certain other lands purchased by the 1st defendant, the family manager by Exhibit X. The Munsif found these items of consideration not binding on the plaintiff.
2. The District Judge has reversed this decision on the ground that it has not been shown that the purchase under Exhibit 10 was disadvantageous to the family or contrary to the interests of the plaintiff (who was a minor at the time). This is in our opinion not the true test, the mortgage affected by the manager included the share of a minor co-parcener the purchaser must show that it was effected for family necessity or at any rate that he (the purchaser) believed bona fide that it was for family necessity (Vide Krihnaram Keshav v. Sakharam Keshav(1901) 3 Bom. L.R. 243. No necessity has been shown or even alleged and it is clear from the evidence of the purchaser (as 4th witness for defendants) that he made no enquiries at all. In our opinion the mortgage in so far as it relates to these items must be held not binding on the plaintiff.
3. As regards the third item of consideration for Exhibit VIII and also as regards the sales by Exhibits I and II we see no reason to differ from the District Judge.
4. In the result the mortgage deed, Exhibit VIII will be held binding on the plaintiffs share of the mortgaged properties only to the extent of half of Rs. 723, and interest there on. The order of the District Judge directing the plaintiff to bear the costs of the 17th and 19th defendants must also be set aside. In other respects the judges decree is confirmed.
5. The plaintiff will bear the costs of the 13th defendant in this court, the plaintiff and the 17th and 16th defendants will bear their own.
