Gopeswar Pyne v. Hem Chandra Bose

Mookerjee, A.C.J:— This is an appeal under Cl. 15, Letters Patent, in an appeal from original decree, wherein the Judges of the Division Bench were equally divided in opinion. Teunon and Greaves, JJ., who heard the appeal, were in agreement to some extent, but as they could not agree upon all the points, the judgment of the Subordinate Judge has been affirmed.

2. The suit is for the enforcement of five mortgage bonds which were executed by the first two defendants, Moni Mohan Roy and his wife Hari Dasi Debi, on 12th September 1903, 25th September 1903, 18th November 1903, 8th December 1903 and 1st February 1904. The sum advanced on each of the first four bonds is stated to have been Rs. 1,000, while the amount covered by the fifth bond is said to have been Rs. 5,000. The properties covered by the successive mortgages are two, namely, first a decree for money obtained by Hari Dasi Debi in the Court of the Subordinate Judge of Hooghli on 26th January 1893 against Madhab Chandra Roy and others; and; secondly, a zamindari known as Gumukpota owned by Moni Mohan Roy. It is stated in the mortgage bonds that at the time when they were granted, the decree was already under execution and that the last step had been taken in June 1903. The plaintiff seeks to recover the sum due under these mortgages by sale of the zamindari. There is no claim for a personal decree; indeed, there could not be such a claim, as the suit was not instituted till 6th September 1915 long, after the personal claim had become barred by limitation. The suit was not defended by either of the mortgagors, but objection was taken by defendant 3, who claims to have acquired a good title to the zamindari by virtue of the transactions which we shall now mention. On 31st May 1905 the zamindari was mortgaged by Moni Mohan Roy to defendant 3. The usual mortgage decree was obtained on 8th June 1906; and at the execution sale which took place on 23rd November 1907, the property was purchased by defendant 3 himself. In answer to the claim of the present plaintiff, defendant 3 contends that no money was advanced under any of the five mortgages set up by him and that consequently he is not entitled to a decree for sale of the zamindari on the strength of what are no better than fictitious mortgages.

3. The Subordinate Judge held that payment of consideration had not been established with regard to any of the five mortgages, and dismissed the suit. Upon appeal to this Court, Greaves, J., has held that payment of consideration had been proved with regard to the first, second and fifth mortgages, while Teunon, J., has held that payment of consideration had been proved with regard to the first mortgage, and to the extent of Rs. 300 on the fifth mortgage. The position then was that as regards the first mortgage both the learned Judges held in favour of the plaintiff upon the question of consideration. As regards the second mortgage, the two learned Judges were equally divided in opinion. As regards the third and fourth mortgages, both the learned Judges were against the plaintiff. As regards the fifth mortgage, the learned Judges were agreed that to the extent of Rs. 300 there was consideration, but as regards the remainder they were divided in opinion. In these circumstances the decree of the Subordinate Judge has been confirmed.

4. It is plain that this decree is not in agreement with the view of either of the learned Judges, and it is also contrary to the course which was adopted in the case of Krishen Doyal Gir v. Irshad Ali Khan (1). The transactions were separate and independent, and if the learned Judges were agreed as to one or more of them, there is no reason why effect should not have been given to their view, merely because they disagreed as to another or the others. In so far as the learned Judges were agreed that there was consideration for the first mortgage, the decree of the Subordinate Judge should have been reversed. In so far as the learned Judges were agreed that there was no consideration for either the third or the fourth mortgage, the decree of the Subordinate Judge should have been (as it was) confirmed. In so far as the learned Judges were agreed that there was consideration to the extent of Rs. 300 on the fifth mortgage, the decree of the Subordinate Judge should have been varied. The result of the dismissal of the entire suit is that an appeal has been preferred by the plaintiff with regard to the whole case. On the authority of the decision in Maharanee Heeranath Koer v. Babu Burm Narain Singh (2) approved in Upendra Nath Bose v. Bindeshri Prosad (3), the whole case is open in the appeal against the decree of dismissal of the entire suit; but the plaintiff has very wisely refrained from asking us to review the findings of the two learned Judges in so far as they are in agreement. We are consequently not called upon, at the instance of the plaintiff, to consider the finding of the learned Judges upon the question of consideration for the third and fourth mortgages, nor have we been invited by defendant 3 to investigate the question of consideration on the first mortgage and the payment of Rs. 300 on the fifth mortgage. Our conclusion consequently is that the suit has been rightly dismissed with regard to the third and fourth mortgages. As regards the second mortgage, we have to consider whether the view taken by Teunon, J., or that adopted by Greaves, J., is supported by the evidence. As regards the fifth mortgage, there should be a decree to the extent of Rs. 300; but we have to consider whether the evidence supports the claim of the plaintiff beyond that amount. As regards the first mortgage, the plaintiff will be entitled to a decree on the basis of the finding that there was consideration as alleged in the bond.

5. As regards the second mortgage, the evidence has been placed before us and we have arrived at the conclusion that the view taken by the Subordinate Judge and approved by Teunon, J., is correct. The evidence as to the payment of consideration has rightly been characterized as unsatisfactory. There is in reality no independent evidence, and we see no reason why the view of the Subordinate Judge should be disturbed. As regards the fifth mortgage the matter is probably more doubtful. Teunon, J., has held that the evidence does not establish the payment of anything beyond a sum of Rs. 300. Greaves, J., has taken the contrary view, and has held that the payment of the entire sum has been proved. We have arrived at the conclusion that the view taken by Teunon, J., is correct and that there cannot be a decree for a larger sum than Rs. 300 on this mortgage. There is one important circumstance in connexion with this transaction which cannot be overlooked. On the date of the execution of the mortgage, a deed of agreement also was executed. The bond purports to have been executed by Moni Mohan Roy on behalf of himself and his wife, and recites that the sum of Rs. 5,000 was made over to Moni Mohan Roy at the time of the execution of the document. The agreement however falsifies this recital. Under the agreement, Moni Mohan Roy left the sum in the hands of the mortgagee on condition that he would be allowed to take, out of the sum in deposit such moneys as might be required for payment of arrears of rent, for the conduct of law suits and other purposes from time to time. On the back of this agreement, there are various entries to the effect that on the dates specified certain sums were paid to Moni Mohan Roy. Teunon, J., has not accepted all these alleged payments, but he has held that two suns of Rs. 200 and Rs. 100 respectively, which were paid to Mr. N.C Bose, a Solicitor, of this Court for costs, are recoverable. We hold accordingly that the plaintiff is entitled to a decree for Rs. 1,000 on the basis of the first mortgage of 12th September 1903 with interest at the contract rate, and also to Rs. 300 on the fifth mortgage of 1st February 1904 with interest thereon at the rate mentioned in the bond.

6. The next question which requires consideration is whether the zamindari in the hands of defendant 3 is liable to be sold in execution of the decree on the mortgage. We are of opinion that the answer must be in the affirmative. At the time when these mortgages were executed the property was already under attachment: in other words, the wife, in execution of the decree for money which she held, had attached the property of her husband who had, in the course of events which need not be narrated in detail, become the legal representative of the judgment-debtors under that decree. The effect of the mortgage transactions, now under consideration, was that her right under the decree was given by way of security to the mortgagee, who is the plaintiff appellant in this Court. Additional security was given by the husband in the shape of the zamindari under attachment. The true position then was that the property which was under attachment in execution of the money decree was, with the consent of the decree-holder and the judgment-debtor, given by way of security to her mortgagee. No doubt there was a subsequent mortgage on 31st May 1905 which is the root of the title of defendant 3; but, at the sale in execution of the decree on the basis of that mortgage, defendant 3 as purchaser could not claim a higher title than his mortgagor and that mortgagor was unquestionably bound by the mortgages of 12th September 1903 and 1st February 1904. We must consequently hold that notwithstanding the transactions that have taken place between the parties, the zamindari is liable to be sold in execution of any decree which may be made in the present litigation on the basis of the mortgages.

7. With regard to the fifth mortgage-bond a point has been taken that the registration was invalid. It has been argued that as the bond was presented for registration by Moni Mohan Roy and the power of attorney on the strength of which he purported to execute a document on be half of his wife was not produced before the Registering Officer, the registration was illegal and void. We are of opinion that there is no substance in this contention. The document was executed by Moni Mohan Roy himself. He proposed thereby to bind not only his own interest in the property but also the interest of his wife; whether he could or could; not effectually bind her interest would depend upon whether he had authority to bind his wife; that he had such authority is indisputable. But apart from this he was the sole executant of the document and he was competent to present it for registration. This view is supported by the decision in Bissendoyal v. Schlaepfer (4).

8. The result is that this appeal is allowed and the decree of the Subordinate judge varied. An account will be taken ??? the basis of the first mortgage of 12th September 1903 and the fifth mortgage ??? 1st February 1904; in respect of the matter mortgage, the consideration will a assumed to be Rs. 300. The usual mortgage decree will be drawn up in resect of the sum ??? to the plaintiff under these two transactions. The time for ademption will be six months from this ???. In view of the divergence of judicial pinion in this case we direct that each party do bear his own costs throughout he litigation.

Fletcher, J.:— I agree.

Richardson, J.:— I agree.

V.B/R.K

9. Appeal allowed.