JUDGMENT Kanhaiya Lal, J.
1. The plaintiffs claim to be the reversionary heirs of one Gaya Prasad Misir, who died leaving two widows Musammat Jasoda Kunwar and Musammat Bindhachal Kunwar. He had a brother Mangla Prasad, who had died before him, leaving a widow, Musammat Sheorani Kuar.
2. Gaya Prasad was indebted to a person named Kamta Prasad, who obtained a decree after his death against his widows on the 5th September 1908. In execution of that, decree Kamta Prasad got 150 maunds kham of grain in the possession of the widows attached on the 17th July 1909. It is not suggested that the grain attached was the produce of the time of Gaya Prasad. Gaya Prasad bad, in fact, died over a year earlier. The widows paid up the decretal money by borrowing Rs. 400 from Gauri Shankar and executing a mortgage bond for that amount in his favour and the question for consideration is whether that mortgage-bond was made for valid necessity and was binding on the reversioners.
3. The Trial Court found that it was binding on the reversionary heirs of Gaya Prasad and that the rate of interest mentioned therein was not excessive. The lower Appellate Court, however, found that though the widows were under no obligation to use any portion of the usufruct of their husband's property in payment of the debt, it was an act of "sheer improvident waste" on their part to mortgage property which, judging by the valuation of the suit, was worth Rs. 3,000 to pay off a petty debt of Rs. 400 bearing interest at Rs. 1-8 0 per cent, per mensem with yearly rests. It, therefore, proceeded to declare that the alienation was not supported by legal necessity except to the extent of the principal money and that the mortgagee was not entitled to claim any interest on the same.
4. It is obvious, however, that either the mortgage was made for legal necessity, i. e., to pay a debt due by the husband of the widows, or it was made without legal necessity. If it was made for legal necessity, the mortgagee is entitled to recover the amount due on the mortgage with interest thereon at the stipulated rate, unless the rate is shown to be unreasonable and excessive. The mortgagee could not have compelled the widows over whom he had no control to pay the interest, is it accrued due on the mortgage, to save themselves from a liability to compound interest. His duty was merely to receive what the widows might pay him either out of the income of the property left by their husband or otherwise. If the widows did not pay the interest due on the mortgage or the principal and interest due thereon within four years as stipulated, he is not to blame for it, and he cannot be made to suffer for the fault of others.
5. The lower Appellate Court observes that "by the sale of 150 maunds of grain (which would be about 260 maunds by the standard weight) the whole debt might have been liquidated". But the report of the attachment shows that the equivalent of 150 maunds of grain attached was 120 maunds by standard weight, and the evidence of Gopi Nath proves that on the objection of Musammat Sheorani Kuar, half of that grain was released. The rest was proclaimed for sale and the mortgage-deed recites that if that were sold, the widows would have no grain left in their house to eat. That was the representation on which the loan from Gauri Shankar to pay the decretal debt due to Kamta Prasad was obtained and there is nothing to show that the creditor had acted otherwise than in good faith in lending the money to pay up that decree. The mortgage in question is, therefore, binding on the plaintiffs, who admittedly came to know of it within a few months of the mortgage but have never taken any steps to get the interest paid by the ladies or to pay the principal or interest themselves since 1908.
6. It is suggested on behalf of the plaintiffs that the widows had an income of Rs. 500 per annum from, their property and that it was an act of imprudent waste on their part to make a mortgage and pay nothing towards it. The defendants, however, deny that their income was anything like that amount Musammat Sheorani who claims a half share in the property as the widow of the deceased brother of Gaya Prasad explicitly says that after paying the Government revenue and the house hold expenses, she could save nothing. The plaintiff, Kamta Prasad states that the plaintiffs held as much property as the three widows taken together and that he could manage to save 50 or 60 maunds of grain every year for sale; and his witnesses try to make out that the profits of the shares of the ladies amounted roughly to Rs. 450 per year, out of which a half share was held by Musammat Sheorani Kuar. The defendants gave evidence to show that the profits did not amount to more than Rs. 200 per year. The Courts below did not determine what the income of the mortgagors was. The interest due on the mortgage amounted to Rs. 72 per year; and even if the net income may be taken to have been roughly Rs. 225 per year, it was hardly sufficient to meet their house-hold expenses and to leave enough for the payment of the interest due on the mortgage.
7. There is no analogy between the case of an enforced sale against a widow or against a member of a joint Hindu family, and the power of the former to pay a debt due by her husband either from the corpus or from her future income or that of the latter to transfer his undivided share. Under the Hindu Law a widow is entitled to the beneficial enjoyment of the entire estate for her life; but if there are debts due by the estate, it is to her interest to pay the debts or the interest accruing due, lest she may lose the corpus or a portion of the estate by an enforced sale in satisfaction of those debts and her means of maintenance may thereby be affected. The lower Appellate Court concedes that the widows were under ho obligation to use any portion of her income in payment of the debts due by her husband. It is well-settled that a creditor is not affected by any precedent or subsequent mis-management of the estate, unless he has been a party to it. The immediate pressure on the estate and the danger to be averted are the principal matters about which he is bound to enquire; and if he acts in good faith, he is protected and can enforce the transaction as much against the widow as against her reversionary heirs. It is not a waste to pay a legitimate debt due by the last male-holder, for as pointed out in Bhagwat Bhaskar v. Nivritti Sakharam 27 Ind. Cas. 356 : 39 B. 113 : 16 Bom. L.R. 738. and Gajadhar v. Jagannath 80 Ind. Cas. 684 : 46 A. 775 at p. 785 : 22 A.L.J. 601 : A.I.R. 1924 All. 551 : L.R. 5 A. 458 Civ. a widow is under a pious obligation to pay those debts, even though they may be barred by time.
8. It is open, however, to the plaintiffs to say that there was no necessity for borrowing money at Rs. 1 8-0 per cent, per mensem compoundable yearly when the security was more than sufficient. The rate of interest is by no means high but the covenant about compound interest appears to be unduly oppressive. It is not shown that the widows could not have obtained the loan except on the terms which the creditor exacted in this case. It will be reasonable in the circumstances to allow simple interest at Rs. 1-8-0 per cent per mensem on the principal money advanced. The defendant mortgagee is willing to take the mortgagee money from the plaintiffs, if they like to pay it.
9. The appeal is, therefore, allowed and the decree of the lower Appellate Court modified so as to allow the mortgagor to pay the money due on the mortgage with interest thereon at Rs. 1-8 0 per cent, per mensem from the date of the mortgage till the date on which the mortgage money may be paid by the surviving widow, or any of her reversioners on her behalf. The defendant-appellant ought to get three fourths of his costs here and hitherto from the plaintiffs including fees in this Court on the higher scale. The plaintiffs should bear their costs throughout.
Ashworth, J.
10. This second appeal arises out of a suit brought by the plaintiffs as reversioners of the estate of one Gaya Prasad Misir against the appellant in respect of a simple mortgage-deed executed by the two widows of Gaya Prasad Misir in favour of the appellant. At the date of his death Gaya Prasad Misir was indebted to one Kamta Prasad, who after his death obtained a decree against the widows for Rs. 400 and attached in execution of the decree 200 maunds of grain in the possession of the widows. It is not stated in the plaint whether this grain accrued to the estate before or after the death of Gaya Prasad, nor has either of the lower Courts decided the point. For the purposes of this appeal we will assume against the plaintiffs (inasmuch as they have not pleaded the contrary) that this grain accrued to the estate after the death of Gaya Prasad Misir. In order to avoid the attachment, the widows borrowed the Rs. 400 from the present defendant-appellant, and executed the mortgage bond in suit to secure the debt of Rs. 400 and the interest thereon at what is described by the lower Appellate Court as a heavy rate. The plaintiffs alleged that the income of the zemindari property left by Gaya Prasad Misir was not less than Rs. 500 a year This was not specifically denied by the appellant, and the lower Appellate Court has stated, that the widows have other property besides the mortgaged property. The bond was executed in 1908, and the sum due on it at the present date has been found by the first Court to be Rs. 2,696. It was the plaintiffs' case that the widows had no right or justification to execute this mortgage-bond whereby not only the debt on the estate of Rs. 400 was secured but also the interest on that debt at a high rate of interest for a period of about 15 years. The defence was that inasmuch as the principal debt of Rs 400 was binding on the estate, the widows had authority to mortgage the estate to secure this sum and interest thereon until the debt was paid.
11. The first Court allowed this defence, and dismissed the suit. It held that a Hindu widow was not bound to pay her husband's debts from the usufruct of the property and was entitled to the full income of the property without any deduction of keeping down the interest due on any debt on the estate. The District Judge of Azamgarh in appeal held, that the action of the widows in hypothecating property worth Rs. 3,000 to secure a debt of Rs. 400 when they could have discharged the principal debt by letting the 200 maunds of grain go and could have discharged the interest on the debt out of the usufruct, amounted to waste, and that the very terms of the bond indicated this to the mortgagee. He farther held that the transfer was not justified by legal necessity, and the mortgagee was in a position to be aware of this. He, therefore, allowed the appeal, and made a declaration that the reversioner for the time being on the death of the last widow would be entitled to take the property as part of the estate subject to a charge of Rs. 400.
12. The first Court was clearly wrong in holding that the widow could enjoy the full usufruct and transfer the corpus for the payment of her husband's debts along with future interest thereon. Even as unsecured claim based on a debt against the estate will take precedence of maintenance see Sham Lal v. Banna 4 A. 296 : A.W.N. (1882) 42 : 6 Ind. Jur. 594 : 2 Ind. Dec. (n. s.) 905. and Jay-anti Subbiah v. Alamelu Mangamma 27 M. 45. The widow is only entitled to the usufruct of the property less reasonable interest on the debts against the property which it is not possible or convenient for her to discharge. The widow is bound "to keep down interest on her husband's debts and is only entitled to enjoy the real net income of her husband's properties" see Boddu Jagayya v. Gali Appala Raju 18 Ind. Cas. 953 : (1913) M.W.N. 275. In the present case on the findings of the lower Appellate Court the widows could have discharged the interest on the debt of Rs. 400 out of usufruct without difficulty. The execution of the present bond so far as it secured interest on the Rs. 400 at a higher rate of interest and for so long a period as 15 years was clearly unnecessary and amounted to waste. The lower Appellate Court's finding on this question of fact is unassailable. The next question is whether the mortgagee was in a position to be aware of this. The lower Appellate Court has found that he was. It based its finding on the facts disclosed by the mortgage deed. In addition to this mortgage-deed the transferee must or could have known that the income of the estate was amply sufficient to meet the interest on the debt of Rs. 400. The lower Appellate Court, therefore, had evidence on which to base its finding that the mortgagee was aware that the bond was not for the necessity of the family, and I see no reason to disagree with this finding. In any case it is a finding of fact and cannot be disturbed in second appeal. An alienee from the widow has to see that the alienation does not operate unfairly against the reversioners. I am, therefore, of the opinion, that the lower Appellate Court was justified in giving the plaintiffs a declaratory decree. The Court has declared that the reversioner for the time being shall take the property subject to a charge of Rs. 400 on the same in favour of the mortgagee. The appellants have taken no objection to this, and so it is not necessary for this Court to interfere. Otherwise I should have been prepared to hold that it is not the correct relief. If the plaintiffs were entitled to possession of the property, then the proper decree would have been to declare the bond invalid in payment by the plaintiffs to the transferee of the sum of Rs. 400, but the present plaintiffs may never succeed to the property. The proper declaration should have been that the mortgage is binding: on the estate only to the extent of Rs 400. It was not fair to the transferee merely to make the Rs. 400 a charge on this property inasmuch as in that case the transferee without notice could defeat the appellant's claim.
13. It is open to consideration, however, whether the appellant is not entitled to some interest. If the mortgage-bond had been one to secure the payment of Rs. 400 with interest at a reasonable rate for a few years, it would clearly not have been proper to set aside the deed even on terms, but this would have been merely a refusal by the Court to exercise the discretion of giving a declaratory decree in a matter where no substantial injustice was done. In the present case the declaration must be made, and it seems to me that no interest can be allowed on Rs. 400. The facts found show that the widows were not entitled to alienate or hypothecate any portion of the estate in order to secure interest, on the debt. The learned District Judge has stated that he took no exception to a hypothecation bond as a means of securing the debt of Rs. 400 and interest. What he took exception to was a hypothecation bond which might result in the loss of property worth Rs. 3,000, whereas the debt could have been settled by Rs. 400 paid down in 1908. So far as the District Judge means that on the facts found by him in this case a hypothecation bond was within the powers of the widows, I disagree with him. It is true that the widows might conceivably hope by economy for few years to set aside sufficient usufruct to meet the debt and the interest, but the hope of so doing would not render valid a hypothecation of any property to secure the interest, provided that the interest could be met in any other way. The burden of proving that it could not be met in any other way was on the mortgagee. He failed to sustain that burden. Prima facie a usufructuary bond would have been possible.
14. My learned colleague is unable to agree with the view taken by me in this judgment. He does not, as I do, draw any distinction between the necessity of hypothecation of property by a widow to meet the corpus of her husband's debt and the necessity of hypothecation to meet the interest. I consider that such a distinction can and should be drawn in this case. It is for the mortgagee to prove that a hypothecation which may have the effect of saddling the estate with interest for 15 years is necessary in the light of the circumstances of which the mortgagee was or should have been aware. In this case he must have known that the hypothecation of property worth Rs. 3,000 to secure this debt of R. 400 was likely and indeed designed to burden unnecessarily the corpus of the estate with the interest on his debt and was, therefore, unfair to the estate and the reversioner; for the usufructuary mortgage, or an out and out alienation of less valuable property would have protected him completely without endangering the estate. The mortgagee could not be blind to the danger to the estate arising from the mortgage. It is said that "it is well-established that a creditor is not affected by any precedent or subsequent mis-management of the estate." He is, I hold, affected by a mis-management in which he connives in advance, which was the view and finding of the lower Appellate Court. This is not acting in good faith which my colleague admits to be necessary. He also appears to hold that the widow had a first claim on the income of the estate for "house-hold expenses". This, I think, is not correct. The interest on a debt on the estate is a prior claim on the, income of the estate. My learned colleague would draw a distinction between a forced sale and a voluntary alienation as rendering irrelevant the decisions that I have quoted in this behalf. I presume that he means that a widow cannot resist a forced sale on the ground that it will leave her without maintenance, but she can defend her voluntary alienation on the ground that to meet the debt out of income would impair her maintenance The same principle must, I presume, be applicable in both cases. Either interest on a debt takes precedence of maintenance or it does not. I hold that it does, because the widow is only entitled to the net income after defraying interest on debts and not to the gross income; as has been held in one for the decisions to which I have referred. My learned colleague has entered into the question of fact whether there was any income available to meet the interest' on the debt of Rs. 400. There is a clear finding of the lower Court that there was more than sufficient income for this purpose. The finding indeed by implication is, that it was sufficient not only to meet that interest but also for the requirements of the widow. There was evidence on which to base this finding of fact and I do not consider it open to this Court in second appeal to interfere with this finding of fact.
15. For the above reasons, I would dismiss this appeal with costs including fees on the higher scale in this Court.
16. In view of the difference of opinion as to the order to be passed in this case, the decree of the lower Appellate Court stands, and the appeal is dismissed with costs including fees in this Court on the higher scale.