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TMI Blog1938 (6) TMI 13X X X X Extracts X X X X X X X X Extracts X X X X ..... Kanoo, having died, his son Rambiswas Prasad Kanoo has been made defendant 3. The subject-matter of the mortgage was a valuable leasehold in Darjeeling comprising lands and houses known as Master Hall's Location held on a 99 years' lease under Government commencing from 1862, which Perganram had acquired by purchase in 1886 by a conveyance Ex. C (Part II, p. l). The mortgage was taken in the name of a lady, Sm. Durgabati, who was the wife of one Lala Karam Chand Soni, plaintiff 1 in the suit. She died shortly after the mortgage on 22nd May 1922, leaving three sons as her heirs, and they have been made co-plaintiffs (plaintiffs 2 to 4). Defendants 4 and 5 in the suit are two alleged subsequent mortgagees. Two substantial grounds have been urged on behalf of the appellants : first, that the suit is not maintainable, and secondly, that the mortgage is not valid and enforceable, and in any case is not binding on defendant 3, Rambiswas. A point was also made regarding the calculation of interest but it was not pressed. 3. The first point arises in this way. It is said that plaintiffs 2 to 4 as sons and heirs of their mother Sm. Durgabati, the mortgagee named in the deed, not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mortgage, Ramdas being the person who executed the document on behalf of all the parties. Ramdas in his turn endorsed the cheque in favour of Lachmandas Purukchand and handed it over to their agent and head gomasta, Kasari Chand Oswal, in full satisfaction of their dues. Hiralal and Kesari Chand have been both examined on behalf of the plaintiffs, and fully support the story. The learned Subordinate Judge accepted their evidence, and so do we. 5. The comment which the appellants make is that neither the cheque nor the Bank account of Karam Chand has been produced, and it is further pointed out that Kesari Chand does not expressly state that the cheque had been drawn by Karam Chand. We no not think however that on the evidence on record the plaintiffs' case suffers on this account. That payment was made by a cheque admits of no doubt; this is shown by the endorsement of satisfaction on the mortgage of Lachmandas Purukchand which was made by Kesari Chand on receipt of payment, and which we had an interpreter of this Court to translate for us. Hiralal's evidence is that Durgabati had no banking account, and nothing is shown to the contrary by the defendants. It is fair to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urgabati's death and was in these words: I beg to inform you that Srimati Durgabati died on 22nd May 1922, In future you may deposit the interest in my banking account, as I am her legal heir. 8. It is on the last few words, I am her legal heir , that stress is laid, as implying an admission on the part of Karam Chand that Sm. Durgabati was the real mortgagee. But it seems to us that the letter was no more than an assurance to the mortgagors that they might go on paying interest to Karam Chand without any risk. Ramdas had in fact already made the first payment of interest on 19th May 1922 to Karam Chand through his account in the Alliance Bank. The position was in fact more fully explained by Karam Chand in another letter which he wrote to Mr. N. Sen on 27th July 1922 (Ex. A, Part II, p. 39). In this letter Karam Chand further made it clear that his wife was merely his benamidar, and also drew attention to the fact that the mortgagors had themselves paid the first instalment of interest into his account in the Bank. We do not think therefore that Karam Chand's correspondence on which the appellants rely affords them any assistance. It is not necessary to refer to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e District Judge under Section 307, Succession Act, 1925, to execute the mortgage, and that it was consequently not valid. 11. The learned Subordinate Judge recorded a finding regarding the character of the mortgaged property which, if well founded, would really cut at the root of the appellant's objections. He held that it was the ancestral property of Perganram and passed upon his death to his sons by survivorship, the family being admittedly governed by the Mitakshara school. No letters of administration were therefore proper or necessary: Section 211 (2), Succession Act, 1925; see also In Re: Pokurmull Augurwallah (1896) 23 Cal 980 and Durgaprasad Barhai v. Jewdhari Singh AIR1936Cal116 . The grant of administration to Mt. Kulwant was accordingly wholly ineffectual and no title vested in her by virtue of the grant. The learned Subordinate Judge further held that in any case the grant was limited to the minority of the sons, and hence ceased to be operative on their attaining majority which they did before the date of the mortgage. We are unable to agree with the learned Judge on any of these points. 12. Taking the second point first, this is negatived by the terms of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis and hold that the grant of administration to Mt. Kulwant was proper and legitimate. 14. The question then arises whether by reason of the grant, which was made on 24th September 1897, Mt. Kulwant as administratrix was the only person competent to deal with the estate at the date of the mortgage in question, namely 16th January 1922. For unless this is established, there would hardly be any point in the appellants' objection either that the deed was not validly executed by her or on her behalf, or that she had not obtained the previous sanction of the District Judge. The fact remains that the deed was also executed by the two sons of Perganram, Ramchatti and Ramdas, and if this was valid execution and if they had power to bind the joint family property by the mortgage, it would really be immaterial whether there was any infirmity in respect of the execution by Mt. Kulwant. 15. It is not disputed that Mt. Kulwant as-administratrix or otherwise had no beneficial interest in Perganram's estate. At the date of his death, the beneficial interest was vested in the two sons as the sole surviving coparceners, but at the date of the mortgage it is said a son had been bor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Ramdas alone, were executed by him signing for Ramchatti Ramdas, that is to say for the firm which admittedly belonged to both Ramchatti and Ramdas. On the first point, we must hold accordingly that the mortgage in question was validly executed by both the sons of Perganram. 17. The next question is a more difficult one, as to whether the capacity of the two sons to create the mortgage was affected by the grant of letters of administration to their mother Mt. Kulwant. We have not been referred to any authority to show that merely because an estate is in the hands of an administrator, the beneficiaries are thereby rendered incompetent to deal with their interest in the estate. Section 211, Succession Act, 1925, merely provides that the estate of a deceased person vests in his executor or administrator as such; these words as such are important, and show that the vesting is not of the beneficial interest in the property, but only for purposes of representation. The present case is one of intestate succession, and is not complicated by any question of the assent of the executor or administrator being necessary to complete the legatee's title (S. 332). In such a case it do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat fact by itself had the effect of taking away the power of Ramchatti and Ramdas to deal with their beneficial interest in the estate. Even supposing that as a result of the grant of administration, the administratrix as the legal representative of the deceased was the only person competent to deal with the estate, it has still to be seen for how long this power of administratrix would continue to the exclusion of the right of the beneficiaries. As already pointed out, all that Section 216, Succession Act, provides is that until the grant is recalled or revoked, no other person will have the right to act as representative of the deceased, but the right to represent the estate for the purposes specified in that Section is not the same as the right to deal with the beneficial interest in the estate. Even taking the Section as it stands, it is doubtful whether this may be regarded as lending any countenance to the proposition, once an administrator always an administrator. The moment administration is completed, the purpose of the grant will have been fulfilled, and the administrator would virtually become functus officio. It seems only reasonable to hold that thereupon the grant wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nram admittedly had left no debts. He left a business, but there is nothing to show that any debts were or had to be incurred for it. In 1914 according to Ramdas the two brothers started a business in the name of Ramchatti Ramdas, which shows that the old business ceased at any rate in that year. According to the recital in the mortgage bond, Ex. 1, the purpose of the loan, as already pointed out, was to repay the dues of Lachmandas Purukchand under a previous mortgage, Ex. 2, and two promissory notes, Exs. 3 and 4. As regards the promissory notes, Ramdas's evidence is that the money borrowed thereon was spent for the personal expenses of the brothers, to buy a motor cycle for one and race ponies for the other. As for the mortgage, the bond recites that it was for the purpose of repaying some previous loans. The document in respect of one only of such previous loans is in evidence, Ex. 10 (Part II p. 18) a mortgage for ₹ 4000 dated 12th May 1910, executed by Mt. Kulwant Bewa as administratrix and her two sons, and according to the recital therein, purports to have been executed for satisfying in part an earlier mortgage for ₹ 6000 in favour of a different party date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which he granted to Ramdas to execute the mortgage, and maintained that the mortgage debt was only in part the debt of Ramchatti, namely to the extent that it went to satisfy the prior mortgage in favour of Lachmandas Purukchand, and not the two promissory notes. In that view, it was argued that Rambiswas could be held bound, if at all, only to the extent of the dues under the said prior mortgage. We have already held how-ever that Ramdas had authority under the power of attorney to execute the mortgage on behalf of Ramchatti in its entirety, and the debts under the two promissory notes were equally the debts of both the brothers. This argument therefore fails. 25. It was next sought to be made out that the debts were immoral, but we agree with the learned Subordinate Judge and have already shown that this is not established. The only question that remains is whether the mortgage was for the purpose of discharging an antecedent debt of Ramchatti. As to this we have no hesitation in holding that it was, and the point was not seriously contested. Our conclusion therefore is that the mortgage is binding on Rambiswas as much as it was binding on Ramchatti and Ramdas. There must ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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