ANANTO MOHINI Vs. KHALLI SAHU
HIGH COURT OF ORISSA
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Mohanty, J. -
(1.) This was a suit by the plaintiff-respondent 1 to enforce a mortgage bond executed by respondent 2 Suvarno Mohini as the mother-guardian or the appellant during his minority in favour of Ananda Mohanty, the deceased father of defendants-respondents 9 and 10 on 3-2-1933. The principal sum advanced on the mortgage-bond was Rs. 500/-. The claim was laid at for Rs. 1,000/-. In 1947, defendant-respondents 9 and 10 after the death of their father transferred that mortgage-bond to the respondent 1 for consideration. Respondent 1 as a transferee of the mortgage has brought the suit for recovery of the mortgage- amount by sale of the mortgaged property. Defendants 3 to 8 who are respondents 3 to 8 have purchased a portion of the mortgaged property, subsequent to the mortgage in question. Defendants 3, 4, and 6 have filed a written statement claiming that their purchased property should be sold last of all, if the mortgage amount cannot be entirely recovered by the sale of the remaining mortgaged property. But at the time of trial they did not appear. The suit was contested by D-2 only on the ground that Ananda Mohanty fraudulently took a mortgage bond from his mother without any consideration, and that there was no legal necessity justifying the loan avdanced under the mortgage bond.
(2.) The trial Court has held that the mortgage-bond in suit is genuine and for consideration; out has dismissed the plaintiff's suit on the ground that though there was a necessity for the loan, such a loan is entirely personal to D-1 and cannot be said to have been incurred to avert any danger to the estate of D-2, the appellant. He has further held that there was no pressure on the estate of D-2, nor was there any benefit conferred upon it and that as the defendant is rich man, he could never have any necessity for borrowing at least Rs. 50/- for the family expenses.
(3.) On appeal by D-2 the subordinate Judge has reversed the judgment of the trial Court on the finding that the mortgage bond in suit is genuine and for consideration and that the debt contracted under that bond by the mother- guardian of D-2 during his minority is for such legal necessity as would bind the minor and his estate.;
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