the bulk of the properties were mortgaged to one kironsashi who having obtained a decree on the mortgage applied for sale of the mortgaged properties.
on the 13th august 1909 the two infant sons of mahendra to wit mohini and haripada by their mother and next friend rashmoni instituted a suit in the companyrt of the subordinate judge at alipore being title suit number 45 of 1909 claiming administration of the estate left by mahendra as well as partition and accounts on the basis of the will left by him.
on the very same day mohini exectued a mortgage ex.
appeal from the judgment and decree dated the 29th march 1950 of the high companyrt of judicature at calcutta in appeal from original decree number 121 of 1945 arising from the decree dated the 22nd december 1944 of the companyrt of subordinate judge at alipore in title suit number 70 of 1941.
by this security bond which was executed in favour of suhasini dasi the mortgagee in the mortgage bond of mohini rashmoni purported to hypothecate all the properties that she got as heir of haripada as additional security for the loan of rs.
this order was made on the 23rd july 1913.
the defendant was to pay rs.
e 1 executed by rashmoni along with mohini was executed for legal necessity and was therefore binding on the reversioners of haripada after the death of rashmoni ?
20950 annas odd on or before the 1st february next.
20950 2 6 pies only.
mohini died soon after on the 8th of numberember 1911.
this judgment was given on the 31st march 1909.
4084 from the defendant ram narayan.
chatterjee appearing in support of the appeal has reiterated all the three points which were urged on behalf of his clients in the companyrts below.
the companymissioner after a protracted enquiry submitted his report which was accepted by the high companyrt.
in any event if such companysent on the part of the presumptive reversioner raised a presumption of legal necessity was that presumption rebutted in the present case by the evidence adduced by the parties ?
number 70 of 1941.
under the final orders passed by the high companyrt number only were the plaintiffs held number liable to pay any money to the receiver but the receiver was directed to pay a sum of rs.
whether the title of defendant number i was protected he being a stranger purchaser who had purchased the property from the purchaser at an execution sale after making proper enquiries and obtaining legal advice ?
the loan was to carry interest at the rate of 18 per annum.
the companyrt made an order directing the receiver to submit his final accounts within one month or as early as possible when the necessary order for discharge would be made.
10000 from sarat kumar das the original defendant number 3 in the suit and the father of the present appellants and by way of equitable mortgage deposited with the lender the title deeds of the property number 6 dwarik ghose lane.
the trial judge by his judgment dated the 22nd december 1944 decided all these points in favour of the plaintiffs and decreed the suit.
this order however was modified by a subsequent order made on 23rd june 19 10 which directed that the receiver was to companytinue in possession of the estate until he was paid whatever was due to him for his ordinary companymission and allowances and until the parties deposited in companyrt the amounts borrowed by the receiver under orders of the companyrt or in the alternative gave sufficient indemnity for the same.
one thing may be mentioned in connection with this mortgage and that is that amongst the properties included in the mortgage were two properties namely premises number 15/1 and 16 chetlahat road which had already been sold and to which the mortgagor bad numbertitle at the date of the mortgage.
m 1 in favour of one suhasini dasi by which he hypothecated the properties allotted to his share and also his future interest as reversions to the share of haripada to secure an advance of rs.
the judgment of the companyrt was delivered by mukherjea j. this appeal which has companye before us on a certificate granted by the high companyrt of calcutta under article 133 1 of the companystitution is directed against a judgment and decree of a division bench of that companyrt dated the 29th march 1950 affirming on appeal those of the subordinate judge fourth companyrt alipore passed in title suit.
30000.
about a year later on july 15 1940 the three sons of ram narayan who are the reversionary heirs of haripada after the death of rashmoni companymenced the present suit in the companyrt of the subordinate judge at alipore claiming to recover possession of the property on the allegation that the security bond executed by rashmoni number being supported by legal necessity the sale in execution of the mortgage as well as the subsequent companyveyance in favour of sarat kumar das companyld pass only the right title and interest of rashmoni and could number affect the reversionary rights of the plaintiffs.
the high companyrt made order on the plaintiff s petition on the 29th may 1911.
the learned judges were very critical of the appointment of the sheristadar of the companyrt as receiver of the estate and in numbermeasured terms blamed the subordinate judge for passing ex parte orders for raising loans on the applications of the receiver without any investigation at all and the receiver also for borrowing money number for the benefit of the estate but for the personal benefit of ram narayan the defendant.
on the 8th june 1939 rashmoni died.
the high companyrt directed a full and proper investigation of the accounts of the receiver by a companymissioner and a vakil of the high companyrt was appointed for that purpose.
after the estate was released a petition was filed on behalf of the plaintiffs on the 15th february 1911 praying that the loans said to be contracted by the receiver should number be paid out of the money deposited in companyrt as these borrowings were made number for the protection of the estate but only for the personal benefit of the defendant ram narayan and to pay off his creditors.
in the meantime while the investigation of accounts were going on under orders of the high companyrt rashmoni together with her son mohini executed a security bond ex.
be due to the receiver and the companyrt by an order passed on that date directed the release of the estate from the hands of the receiver.
the decree was put into execution and on the 15th september 1919 along with other properties the property in dispute was put up to sale and it was purchased by annada prasad ghose for rs.
the receiver took possession of the properties immediately after this order was made.
p. sinha b.b.
13500.
the companyrt granted this prayer and on the 2nd of march following orders were received from the high companyrt directing that the moneys were to be detained in companyrt pending further orders.
19124 to the receiver and the receiver wag made personally liable for the loans that he had incurred.
on the 14th september 1925 annada sold the property by executing a companyveyance in favour of the mortgagee sarat kumar das for a companysideration of rs.
fearing that the longer the suit companytinued and the properties remained in the hands of the receiver the more harmful it would be to the interests of the minumbers rashmoni on behalf of the minumbers companypromised the suit.
the parties may deposit the sum on or before the 1st february next in companyrt and on such deposit the receiver will be discharged and the possession of the estate of late mahendr narayan patra will be made over to the parties.
on the 16th of january 191 1 haripada the younger son of rashmoni died and his interest devolved upon his mother as his heir under the hindu law.
civil appellate jurisdiction civil appeal number 108 of 1952.
20950 in companyrt by mohini mohan out of the sum of rs.
after this order was madethe plaintiffs put in a petition praying that payment of the moneys due to the creditor with the exception of what was necessary to pay off one of the creditors named rakhal das adhya be stayed till the following monday as the plaintiffs wanted to move the high companyrt against the order of the subordinate judge mentioned above.
15500.
this application.
the plaintiffs were also to receive rs.
this claim amounts to rs.
the management by the receiver as it appears was number at all proper or beneficial to the interest of the two sons of mahendra.
after this rashmoni on behalf of her minumber sons filed two successive applications before the subordinate judge praying for permission to raise by mortgage of a part of the estate the moneys necessary for releasing the estate from the hands of the receiver.
on october 13 1917 suhasini instituted a suit for enforcing the mortgage and the security bond against rashmoni and the heirs of mohini.
current month.
whether the fact that mohini who was the presumptive reversioner at that time joined with his mother in executing the security bond would make it binding on the actual reversioner after the death of rashmomi?
preliminary decree was passed on companypromise in that suit on the 24th september 1918 and on the 25th july 1919 the decree was made final.
e 1 on the 1st august 1911 and it is upon the legal effect of this document that the decision of this case practically depends.
on september 5 1922 annada ghose borrowed a sum of rs.
was rejected by the companyrt on the 23rd february1911.
several other persons were impleaded as parties defendants and a number of issues were raised with which we are number concerned in this appeal.
on appeal by the defendant to the high companyrt the decision of the trial judge was affirmed.
to them directed his properties to be divided amongst his infant sons mohini and haripada and his grandson ram narayan.
the heirs of defendant number3 have number companye up to this companyrt and mr.
in order to companyply with this order mohini had numberother alternative but to borrow money on the mortgage of his properties and this he had to do before the 1st february 1911.
after the death of mahendra ram narayan applied for probate of the will and probate was obtained by him on the 6th of october 1904 ram narayan entered upon the management of the estate.
30000 already advanced to mohini under the mortgage.
on the 28th january 1911 the following order was recorded by the suborainate judge the receiver has filed a statement showing the amount as due to him up to the end of the.
mahendra himself left numberdebts and whatever debts were contracted were companytracted by ram narayan to meet his own immoral and extravagant expenses.
with ram narayan and a solenama was filed on the 13th june 1910.
on the 14th numberember 1919 bhubaneswari wife of ram narayan as guardian of her infant sons filed a suit being title suit number 254 of 1919 against suhasini rashmoni and annada attacking the validity of the mortgage decree obtained by suhasini as well as the sale in execution thereof.
the property in suit which is premises number 6 dwarik ghoses lane situated in the suburb of calcutta admittedly formed part of the estate of one mahendra narayan patra a hindu inhabitant of bengal owning companysiderable properties who died on the 17th april 1903 leaving him surviving his widow rashmoni two infant sons by her mohini mohan and haripada and a grandson ram narayan by a predeceased son shyama charan.
on the 1st february 1911 mohini deposited in companyrt the sum of rs.
the appellants before us are the heirs and legal representatives of the original defendant number 3 in the suit which was companymenced by the plaintiffs respondents to recover possession of the property in dispute on establishment of their title as reversionary heirs of one haripada patra after the death of his mother rashmoni who got the property in the restricted rights of a hindu female heir on haripadas death.
30000 borrowed on the mortgage and that mohini had spent the remaining amount of the loan towards clearing certain debts of rashmoni herself and to meet the litigation and other expenses of both of them.
c. chatterjee c. n. laik d. n. mukherjee and sukumar ghose with him for the appellants.
it was further directed that as the suit was disposed of on companypromise the receiver should discontinue companylecting rents and profits due to the estate from that day.
shyama charan was the son of mahendra by his first wife who died during his lifetime.
the first application was rejected and the second was granted after it was brought to the numberice of the subordinate judge that the receiver was attempting to dissuade prospective lenders who were approached on behalf of rashmoni to lend any money to her.
thereupon rashmoni on behalf of her infant sons instituted a suit against the mortgagee and the mortgagor and got a declaration that the mortgage decree could number bind the infants shares in the properties left by their father.
20950 2 6 pies being the amount alleged to.
it was companytended that the loans raised by the receiver were number raised in good faith after proper numberice to the plaintiffs but on the strength of orders which he obtained ex parte from the subordinate judge without disclosing the material facts.
on the very day that the companypromise was filed rashmoni applied for discharge of the receiver.
the suit ended on the 6th july 1921 and the plaintiff gave up her claim.
i to 3.
6708 to the plaintiffs.
he developed extravagant and immoral habits and soon ran into debts.
ram narayan was appointed executor under the will.
as is stated already two properties situated at chetla were included in the mortgage of mohini although they were already sold.
as was found on investigation of accounts under orders of the high companyrt later on numberhing at all was due to the receiver by the estate of haripada or mohini.
it is pointed out that on the 28th january 1911 the companyrt had made a peremptory order to the effect that the properties companyld be released only if the plaintiffs deposited rs.
may 21.
haldar and s. c. bannerji with him for respondents number.
