JADUNATH MITRA Vs. ISAR JHA

JUDGEMENT

(1.) This appeal is by the plaintiff in a mortgage action. Both the Courts below have gone into a number of questions including the validity of the mortgage itself. They have held that it was the property of the deity and therefore inalienable as I understand their judgments. The Judge in the Appellate Court expresses himself in these words: I see no reason to differ from the finding of the learned Munsif that the property mortgaged is debuttar property.

(2.) The learned Judge has also held that as there was no proof of attestation the action was bound to fail. A further point is argued before me that the defendants are not the legal representatives of the deceased mortgagor. I propose to deal with that point first. Both the Courts below have found as a fact that the defendants are the nearest agnates and heirs. Section 2(11), Civil P.C. describes "legal representative" as a person who in law represents the estate of a deceased person and includes any person who intermeddles with the estate of the deceased. There is no question of intermeddling with the estate and it does not assist the defendants by contending that they have not got possession, their case being that the deity was in possession; the defendant merely performed the pujaand therefore on the construction of Section 2(11) he is not the legal representative. The fact that the legal representative has not taken possession of the property does not assist the defendant.

(3.) If he is the legal representative, it is his duty to take possession of the estate, and it is no answer to the proposition that the legal representative has not taken possession of the property. That question is "wrapped up in this case with the other (points whether this is a debuttar property. Their Lordships of the Judicial Committee of the Privy Council in Bholanath Sen V/s. Balaram Das A.I.R (1922) . P.C. 382 "have emphasized what is really an elementary proposition in a mortgage action, namely that a mortgagor is estopped from asserting that he is not in possession of the property mortgaged. One is very diffident to make statement relating to what are elementary and fundamental principles of law, but it seems to be necessary in some cases. Brij Ratan Das V/s. Raghunandan Gir A.I.R (1923) . Pat. 203 a decision of this Court, is another case. I quote the proposition laid down by the then Chief Justice: If it should hereafter turn out either that the Hindu public or anybody else is interested as proprietor of the mortgaged property or has a paramount title adverse to that of the mortgagor, the decision in this suit will not be binding upon such a person.