Radha Nath Chakrabarti vs Nagendra Nath Chakrabarti And … on 11 March, 1931

Calcutta High Court
Radha Nath Chakrabarti vs Nagendra Nath Chakrabarti And … on 11 March, 1931
Equivalent citations: AIR 1931 Cal 806
Author: Jack


Jack, J.

1. This appeal has arisen out of a suit to recover half the share of the money alleged to be due on a registered mortgage bond executed by one Krishna Lal Chakravarty in favour of Bhudar Chakravarty in 1919. Plaintiff and defendant 3 are the successors of Bhudar and defendants 1 and 2 are successors of Krishna. The suit was de-decreed in full as against defendant 1, in the trial Court but in the lower appellate Court it was decreed for half the amount, namely Rs. 81-9-0 as against defendant 1, and dismissed as against defendant 2 in as much as it was held that defendant 2 was not properly represented in the suit.

2. The principal point raised in this appeal is that a suit for half-share of the money due on the mortgage is not maintainable. It is next urged that additional evidence should not have bean taken after the arguments on both sides have been heard. As to the second point there is not much substance. The additional evidence consisted of a statement of the plaintiff as to the attestation of the mortgage bond. The bond was written by the scribe Kismatulla and attested by Danijulla and Gendla both of whom are dead. The plaintiff examined Kisma-Uiila who said that he signed the bond before the mortgagor signed it. He is therefore not an attesting witness. But he has given evidence that the mortgagor signed it in the presence of two at-‘Listing witnesses Danijulla and Gendla. They were not questioned as to whether they signed the bond before or after the mortgagor. The Court of first instance relied on the presumption of Section 114, Evidence Act and held that they signed the bond as attesting witnesses as usual after the mortgagor bad signed it. The lower appellate Court took the evidence of the plaintiff as to the time when Danijulla and Gendla signed the bond and the learned Subordinate Judge says that the evidence entirely supports the presumption on which the first Court relied and” he therefore says that in his judgment the bond was duly attested. It is clear that the lower appellate Court was quite entitled to take additional evidence Apart from this I think that the Court of first instance was right in the circumstances in presuming that the attesting witnesses signed after the mortgagor There is nothing to suggest that in fact they signed before the mortgagor and the finding that they were attesting wit nesses practically involves the finding that they signed after the mortgagor.

3. But the principal contention of the appellant is that the suit is not maintain-able for a half-share of the plaintiff in the mortgage money. As regards this point the lower appellate Court says thus:

The plaint is probably not very accurately framed, but the defect has caused no prejudice to defendant 1 and is not capable of amendment by a mere application, even at this stage The defect therefore does not appear to be fatal’ Ordinarily, the plaintiff had no right to maintain this suit except jointly with defendant 3 but in the present suit, the plaintiff has alleged in the plaint that defendant 3 refused to join him in the suit; such refusal gives the plaintiff a right to maintain a suit on the bond, when ha has made defendant 3 a party to the bond.

4. It is certainly true that ordinarily a suit on a mortgage bond should be for the whole of the amount of the mortgage in order to avoid multiplicity of suits and neither the mortgage money nor the security can be split up without the consent of the parties or permission of the Court. As laid down in the case of Suniti Bala Debi v. Dhara Sundari Debi A.I.R. 1919 P.C. 24 the proper course for a mortgagee who desires to realize his share of the mortgaged property if the consent of the co-mortgagee cannot be obtained is to add the co-mortgagee as a defendant to the suit and to ask for the proper mortgage decree, which would provide for all the necessary accounts and payments. But it was held in that case that there could be no judgment for a sum of money entered as between the mortgagee defendant and the mortgagor. In that suit the mortgagee was asking for a payment of half the mortgage money and for a sale of half the mortgaged property. It is clear that the security could not be split upon this way. The present suit is with reference to whole of the mortgaged property. There is no reference to the splitting up of the security and it appears that defendant 1 is the ammukhtear of the mortgagees defendants 2 and 3. Defendant 3 although asked to join in the suit refused to do so and has not put in any statement or taken any part in the proceedings. It is clear therefore that defendant 3 has no intention of claiming his share of the mortgage money. In these circumstances it seems to me that the sensible way of dealing with the present suit is to regard the share of the plaintiff as the total amount remaining due on the mortgage bond. Prom this point of view he is entitled to maintain the suit as against defendant 1 for the share due from defendant 1 at least and this is the decree which has been passed by the Court of appeal below.

5. The appeal is accordingly dismissed with costs.

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