BHIKARY RAM Vs. S HEDAIT MOHAMMAD SAHAJI

JUDGEMENT

(1.) THESE two appeals arise out of the judgment and decree of the first Additional Subordinate Judge of Cuttack in a suit for the enforcement of a simple mortgage bond (Ext. 2). The mortgage bond dated the 15th May, 1945 was executed jointly by Bhikari Ram (defendant No. 2) and Jasoda Dei (defendant No. 3 since dead) mortgaging the house of her minor son Mahesh Prasad Bhagat (defendant No. 1) for the sum of Rs. 10,000/ - in favour of the two plaintiffs. Defendant No. 2 Bhikary Ram had admittedly no interest in the mortgaged property, but it was alleged by the plaintiffs that he was a near relation of defendant No. 3 who was a Purdanashin lady, that he was acting as the manager of her family and that the suit loan was advanced by the plaintiffs for a business, named Bhagawat Chemicals started by the family of which defendant No. 2 was the managing partner.

(2.) DEFENDANT No. 1 who had become a major by the date of the institution of the suit denied all liability under the mortgage bond (Ex. 2) and stated that it was executed by his mother Jasoda Dei who was an illiterate Purdanashin woman, without knowing its contents and import and without getting independent advice, on the false representation made by defendant No. 2 and thatconsequently it was not binding on him. Defendant No. 2 also stated that the bond did not represent a genuine transaction but that it was executed by him and Jasoda Dei by way of security for certain sums advanced to him by one Fazle Haque whose benamidars the plaintiffs were alleged to be plaintiff No. 1 is admittedly the son -in -law of the said Fazle Haque and plaintiff No. 2 is Fazle Hague's brother. Defendant No. 2, however admitted that he had received in all Rs. 4,800/ - from Fazle Haque for his business and further stated that he had paid him Rs. 1,200/ -after getting a receipt. He admitted personal liability to pay the balance of the loan to FazleHaque.

(3.) THE plaintiffs appealed to this Court, in F. A. 53 of 1953 against that portion of the judgment and decree of the learned Subordinate Judge dealing with the dismissal of the suit against defendant No. 1 and the disallowance of a portion of their claim against defendant No. 2. Defendant No. 2 also filed a cross -appeal in F. A. 52 of 1953, against the order of the Subordinate Judge refusing to give him a set -off for Rs. 1,200/ -paid by him to Fazle Haque. Both these were heard together.