Decided on November 04,1935



Lancelot Sanderson, J. - (1.) THIS is an appeal by the plaintiffs in Suit No.561 of 1933 from a decree of the High Court of Judicature at Fort William in Bengal in its appellate jurisdiction dated June 5, 1934, which reversed a decree passed by the said High Court in its original civil jurisdiction dated November 21, 1933, and dismissed the plaintiffs' suit with costs.
(2.) THE plaintiffs carry on business under the name and style of Pratapmull Rameshwar as moneylenders. Chunilal Johury and his son, Motilal Johury, constituted a joint Hindu family governed by the Mitakshara law and from time to time the plaintiffs lent them money which, they alleged, was for legal necessity and for the benefit of the borrowers and their family on the security of properties belonging to them. On December 21, 1927, plaintiffs lent Chunilal and Motilal Rs. 25,000 at eight per cent, interest on mortgage; on October 12, 1928, they lent them a further sum of Rs. ,00,000 at seven and a half per cent, interest on mortgage; and on March 11, 1929, they lent them Rs. 35,000 at seven per cent, interest on mortgage. THE mortgages were upon the joint ancestral family property. Subsequent to these transactions Motilal had two sons born to him, viz. , Narendra Singh Johury, born in October, 1929, and Basant Singh Johury, born in January, 1931, each of whom on birth became a member of the joint Hindu family. On March 26, 1930, Motilal instituted in the High Court at Calcutta a suit numbered 655 of 1930 for the partition of the joint property, for the appointment of a receiver and other reliefs. The defendants in the suit were Chunilal Narendra Singh, Dhanabati, the wife of Chunilal and Narendra who was in the first instance called " Khoka ". In July, 1931, Basant Singh was added as a party and the name " Narendra " was substituted for " Khoka " in respect of the elder son. On May 9, 1931, the plaintiffs filed in the said High Court a suit, No.1010 of 1931, on the said mortgages against Chunilal, Motilal, Narendra Singh and Basant Singh. In that suit Musammat Dhanabati, the wife of Chunilal was guardian ad litem of the minor defendants, Narendra Singh and Basant Singh. On June 19, 1931, Dhanabati, alias Dhanoo Bibi, filed her written statement in the " partition " suit. She claimed that she was entitled to a share in the joint estate equal to that of the plaintiff, Motilal, and that her share should be allotted to her in severalty.
(3.) SHE prayed further that the joint estate should be charged with maintenance at the rate of Rs. 500 per month and that a receiver should be appointed to enforce the same. On July 2, 1931, terms of settlement of the mortgage suit (No.1010 of 1931) were agreed and were embodied in a document of that date, which was executed by Chunilal, Motilal, and Dhanabati, as guardian ad litem of the infant defendants Narendra and Basant and the solicitors for the plaintiffs.;

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