Musst Kulwanta Bewa v. Karam Chand Soni

The Judgment of the Court was as follows:—

Biswas, J.:— This is an appeal in a suit to enforce a mortgage. The learned Subordinate Judge of Darjeeling who heard the suit made a preliminary decree for a sum of Rs. 53,275 with interest and costs and the Defendants Nos. 1 to 3 who represent the interest of the mortgagors have preferred this appeal.

The mortgage which is Exhibit 1 in the case (Part II of the Paper-Book, p. 27) is dated the 16th January, 1922 and was for a sum of Rs. 16,000 carrying compound interest at the rate of 12 per cent, per annum. It was executed by the widow and two sons of one Perganram, a Hindu resident of Darjeeling governed by the Mitakshara School of Hindu Law, who had died intestate on or about the 8th January, 1897, The widow Mussammat Kuhvant Bewa is the first Defendant in the suit and the second Defendant is the younger son Ramdas Prasad Kanoo, while the other son Ramchatti Ram Kanoo having died, his son Rambiswas Prasad Kanoo has been made Defendant No. 3. The subject-matter of the mortgage was a valuable lease-hold in Darjeeling comprising lands and houses known as Master. Hall's Location held on a 99 years' lease, under Government commencing from 1862, which Perganram had acquired by purchase in 1886 by a conveyance Exhibit. C (Part II, p. 1). The mortgage was taken in the name of a lady Sm. Durgabati, who was the wife of one Lala Karam Chand Soni, the first Plaintiff in the suit. She died shortly after the mortgage on the 22nd May, 1922, leaving three sons as her heirs and they have been made co-Plaintiffs (Plaintiffs Nos. 2 to 4). Defendants Nos. 4 and 5 in the suit are two alleged subsequent mortgagees.

Two substantial grounds, have been urged on behalf of the Appellants: first, that the suit is not maintainable and secondly, that the mortgage is not valid and enforceable and in any case is not binding on Defendant No. 3 Rambiswas. A point was also made regarding the calculation of interest, but it was not pressed.

The first point arises in this way. It is said that Plaintiffs Nos. 2 to 4 as, sons and heirs of their mother Sm. Durgabati, the mortgagee named in the deed, not having taken out letters of administration or a succession certificate, sec. 214 of the Indian Succession Act, 1925 is a bar to their recovering a decree. The Plaintiffs met this objection in anticipation in their plaint by making the definite case that the real mortgagee was Lala Karam Chand, the first Plaintiff and Sm. Durgabati was a mere benuadar: the sons were joined as Plaintiffs merely to avoid any possible objections. The learned Sub-ordinate Judge has found in favour of the Plaintiffs on the question of benami and it is conceded that if this finding stands, it would be a complete answer to this particular objection. We have come to the conclusion that the learned Judge was right.

It is not disputed by the Plaintiffs that the onus is on them to prove the benami. The material fact to consider in this connection is, who advanced the money and on this point we have no doubt that it was Lala Karam Chand. Plaintiffs' case is that the loan had been negotiated through Hiralal Mahendra, father of Sm. Durgabati and father-in-law of Karam Chand. This is admitted by Ramdas. Hiralal is an old resident of Darjeeling and knew both the sons of Perganram. In or about October, 1921, Ramchatti and Ramdas being hard pressed for payment by a firm of merchants and bankers Lachmandas Purukchand to whom they owed money on a mortgage and two promissory notes, sought the help of Hiralal to raise loan for them from some other party to liquidate the dues of these creditors. Hiralal said he could approach his son-in-law for the purpose and at the instance of the said sons of Perganram as well as of their mother, he did so. Karam Chand was an Executive Engineer in the U.P at the time and he came down from there on taking leave to inspect the property at Darjeeling which was offered for mortgage. The terms being arranged, he left, but before leaving, he opened an account with the Darjeeling branch of the Alliance Bank of India (since gone into liquidation) with a view to making the payment of the mortgage money by a cheque. He had a sum of Rs. 12,000 with him and with this and a further sum of Rs. 4,000 which he obtained as a temporary advance from Hiralal, he opened the account. Karam Chand afterwards sent to Hiralal from the U.P a cheque for Rs. 16,000 drawn on this account, which Hiralal according to his instructions handed over to Ramdas on the execution of the mortgage, Ramdas being the person who executed the document on behalf of all the parties. Ramdas in his turn endorsed the cheque in favour of Lachmandas Purukchand and handed it over to their agent and head gomosta Kesari Chand Oswal in full satisfaction of their dues. Hiralal and Kesari Chand have been both examined on behalf of the Plaintiffs and fully support the story. The learned Subordinate Judge accepted their evidence and so do we.

The comment which the Appellants make is that neither the cheque nor the Bank account of Karam Chand has been produced and it is further pointed out that Kesari Chand does not expressly state that the cheque had been drawn by Karam Chand. We do not think, however, that on the evidence on record the Plaintiffs' case suffers on this account. That payment was made by a cheque admits of no doubt: this is shown by the endorsement of satisfaction on the mortgage of Lachmandas Parukchand which was made by Kesari Chand on receipt of payment and which we had an interpreter of this Court to translate for us. Hiralal's evidence is that Durgabati had no banking account and nothing is shown to the contrary by the Defendants. It is fair to conclude, therefore, that the cheque by which payment was made was a cheque drawn by Karam Chand on his own account in the Alliance Bank. There was no suggestion to Hiralal in cross-examination that Karam Chand opened the account or drew the cheque on behalf of his wife. In fact, as the learned Subordinate Judge points out, it was not put to the witness at all that the money had been advanced by Sm. Durgabati or that she had money of her own. Ramdas made the case in his evidence that Hiralal paid him Rs. 10,000 in one G.C note and the balance in notes of smaller denominations, but there is nothing to support it except his bare statement, which the learned Subordinate Judge refused and rightly refused, to accept. It is worthy of note that this case was not put to Hiralal on behalf of Ramdas, but only on behalf of Mussammat Kulwant Bewa, though on her own case she knew nothing about the mortgage.

In support of their case that Sm. Durgabati was the real creditor, the Appellants rely mainly on the recital in the mortgage deed itself, but if the transaction was benami, the recital could not be otherwise. The Appellants refer also to cl. 15A of Exhibit N (Part II, pp. 22, 25), a registered power of attorney executed by Ramchatti in favour of his brother Ramdas on the 23rd November, 1921, by virtue of which Ramdas executed the mortgage on behalf of Ramchatti, the latter being physically incapable at the time of moving about. The words in this clause are:—“Provided however the said attorney is hereby given full power to raise money by mortgaging the premises to Durgabati or to any body else” It is argued that the mention of Durgabati's name shows that the loan was to be taken from her and not from her husband. But if the mortgage was to be a benami transaction, the power of attorney would obviously refer to the proposed deed by the name of the benamdar and the mention of Durgabati's name is, therefore, wholly inconclusive. But the words which follow, “or to any body else,” almost clinch the matter, showing quite plainly that the mortgage was to be benami, only that the name of the benamdar had not yet been finally settled.

Some reliance was also placed by the Appellants on a letter of the 5th July, 1922, written by Karam Chand from Cawnpore to the Appellants' vakil at Darjeeling Mr. N. Sen (Exhibit R. Part II. p. 38). This was an intimation of Durgabati's death and was in these words:—

“I beg to inform yon that Srimati Dnrgabati died on 22nd May, 1922. In future yon may deposit the interest in my banting account as I am her legal heir.”

It is on the last few words, “I am her legal heir,” that stress is laid, as implying an admission on the part of Karam Chand that Sm. Durgabati was the real mortgagee. But it seems to us that the latter was no more than an assurance to the mortgagors that they might go on paying interest to Karam Chand without any risk. Ramdas had in fact already made the first payment of interest on the 19th May, 1922, to Karam Chand through his account in the Alliance Bank. The position was in fact more fully explained by Karam Chand in another letter which he wrote to Mr. N. Sen on the 27th July, 1922 (Ex. A, Part II, p. 39). In this letter Karam Chand further made it clear that his wife was merely his benamdar and also drew attention to the fact that the mortgagors had themselves paid the first instalment of interest into his account in the Bank. We do not think, therefore, that Karam Chand's correspondence on which the Appellants rely affords them any assistance. It is not necessary to refer to the evidence on this point in further detail, beyond pointing out that further payments of interest after Durgabati's death were actually made to Karam Chand direct by insured post or through his account in the Alliance Bank at Darjeeling. (See Exhibit I, Part II, p. 43). We hold accordingly that Karam Chand was the real mortgagee and he being the first Plaintiff in the suit, the suit is maintainable at his instance. The first objection taken by the Appellants, therefore, fails.

We might notice another answer which was given by the learned Subordinate Judge to this objection and it was that a mortgage was not a “debt” within the meaning of sec. 214 of the Indian Succession Act. and that the bar of this section did not consequently apply. In view of our finding on the question of benami, it is not necessary to press this point and it is sufficient to state that there is ample authority in this Court in support of the view expressed by the learned Subordinate Judge, though the Allahabad High Court appears to have struck a different note. See, for instance, the cases of Roghu Nath Shaha v. Poresh Nath Pundari , Kanchan Modi v. Bail Nath Singh , Baid Nath Das v. Shamanand Das , Mahomed Yusuf v. Abdur Rahim Bepari and Umesh Chandra Pramanick v. Mothura Mohan Haldar . The present suit is one to enforce a mortgage security and not for a mere personal decree against the mortgagors and will not, therefore, be affected by decisions like Abdul Sattar v. Satya Bhusan Dus .

As regards the next objection raised on behalf of the Appellants which assails the validity of the mortgage, the argument may be summarised thus. Perganram was no doubt living jointly with his sons, forming a co-parcenary with them, but the mortgaged premises, Master's Hall Location, was his self-acquired property which devolved, on his sons by way of succession. It was quite proper, therefore, for his widow Mussammat Kulwant Bewa after his death to take out, as she did, letters of administration to his estate, including this property. As administratrix, she was accordingly the only person competent to deal with the property by way of mortgage or otherwise. There was, however, no valid execution of the mortgage in suit by or on behalf of the lady. It is further pointed out that as administratrix she had not obtained the permission of the District Judge under sec. 307 of the Indian Succession Act, 1925, to execute the mortgage and that it was consequently not valid.

The learned Subordinate Judge recorded a finding regarding the character of the mortgaged property, which if well founded, would really cut at the root of the Appellant's objections. He held that it was the ancestral property of Perganram and passed upon his death to his sons by survivorship, the family being admittedly governed by the Mitakshara School. No letters of administration were, therefore, proper or necessary. [Sec. 211(2) of the Indian Succession Act, 1925, see also In the Goods of Pokurmull Augurwallah and Durgaprasad Barhai v. Jewdhari Singh ]. The grant of administration to Mussammat Kulwant was accordingly wholly ineffectual and no title vested in her by virtue of the grant. The learned Subordinate Judge further held that in any case the grant was limited to the minority of the sons and hence ceased to be operative on their attaining majority which they did before the date of the mortgage. We are unable to agree with the learned Judge on any of these points. Taking the second point first, this is negatived by the terms of the grant of which Exhibit S (Part II, p. 10) is a certified copy and which does not contain any limitation whatever. As regards the finding that the mortgaged property was ancestral, it is rested mainly on the testimony of two witnesses, P.W's 3 and 4, Budha Ram and Sew Saran Ram, two old shopkeepers of Darjeeling, who speak to a shop at Darjeeling owned by Perganram, which is supposed to have formed the nucleus of the joint family fund with which the property was purchased. The evidence of these witnesses is not at all convincing and certainly falls short of establishing that the shop was joint family property. At the highest, it only shows that Perganram carried on a business, but there is no presumption that a business carried on by a member of a joint family is joint family business. A member of a joint family who engages in trade can make separate acquisitions of property for his benefit and unless it can be shown that the business grew from a nucleus of joint family property, or that the earnings were blended with joint family funds, they remain his self-acquired property. There is no evidence in this case from which it is possible to infer that the shop was joint family business. The supposed nucleus of joint family estate for the acquisition of the mortgaged property, therefore, fails. The learned Subordinate Judge holds on the evidence of P.W 3 that Perganram's father was living at the time of the conveyance by which the property was purchased (Exhibit C) and that it must, therefore, be presumed that the property, was being acquired by the father. We do not think any such presumption is justified, nor are we satisfied that Perganram's father was living at that date. The conveyance was dated the 17th September, 1886 and it is not disputed that Perganram died on the 8th January, 1897. The only evidence in support of the finding of the learned Judge is a casual statement of the said witness that Perganram died eight or nine years after his father's death, but it would not in our opinion be safe to act on such an indefinite statement made by a person who was a stranger to the family. The documentary evidence in the case furnished by the conveyance and by the grant of the letters of administration coupled with the dealings of the parties all tells against the property being Other than the self-acquired property of Perganram. We must consequently proceed on this basis and hold that the grant of administration to Mussammat Kulwant was proper and legitimate.

The question, then arises whether by reason of the grant, which was made on the 24th September, 1897, Mussammat Kulwant as administratrix was the only person competent to deal with the estate at the date of the mortgage in question, namely, the 16th January, 1922. For, unless this is established, there would hardly be any point in the Appellants' objection either that the deed was not validly executed by her or on her behalf, or that she had not obtained the previous sanction of the District Judge. The fact remains that the deed was also executed by the two sons of Perganram, Ramchatti and Ramdas and if this was valid execution and if they had power to bind the joint family property by the mortgage, it would really be immaterial whether there was any infirmity in respect of the execution by Mussammat Kulwant.

It is not disputed that Mussammat Kulwant, as administratrix or otherwise, had no beneficial interest in Perganram's estate. At the date of his death, the beneficial interest was vested in the two sons as the sole surviving co-parceners, but at the date of the mortgage it is said a son had been born to Ramehatti, namely, Rambiswas, the third Defendant in this suit, who was then an infant. Whether the interest of Rambiswas was or could be bound by the mortgage is a question we shall have to examine later, but assuming for the present that Ramehatti and Ramdas could by their dealings bind the entire co-parcenary interest, what we have now to consider is, first, whether the mortgage was validly executed by the two brothers and secondly, whether, if otherwise competent, their Tight to mortgage was in any way affected by the grant of the letters of administration.

As to the first of these points, admittedly the document was not executed by Ramchatti personally, but the execution was by Ramdas for self and as constituted attorney of Ramchatti as well as of Mussammat Kulwant. The power of attorney granted by Ramchatti to Ramdas in this behalf is Exhibit N, already referred to above. The validity of this power is not challenged, but the only point made is as to the scope of the authority given by it. It is said that Ramdas was merely authorised by this document to “clear off and liquidate a mortgage debt that now existed” on Master's Hall Location, being the property which was the subject-matter also of the mortgage in suit. According to the recital in the mortgage in suit, the purpose of the loan was to repay the debt which was then owing to the firm of Lachmandas Purukchand not only on a mortgage of the said property (Exhibit 2), but also on two promissory notes (Exhibits 3 and 4). It is contended, therefore, that the power-of-attorney conferred no authority on Ramdas to execute a mortgage for the purpose of satisfying the dues under these promissory notes. We do not think there is any substance in this contention. The terms of the authority must be construed reasonably and upon a reasonable view there cannot, in our opinion, be any doubt that the object was to give authority to execute the particular document which Ramdas actually executed by virtue of it. Merely because in referring to the document, the power-of-attorney recited part of the consideration for the mortgage to be effected thereby, it would not be right to hold that the transaction was authorised by Ramchatti only so far as it went to satisfy the mortgage of Lachmandas Purukchand, but not the two promissory notes in their favour. It may be mentioned here that the two promissory notes, though they were executed by Ramdas alone, were executed by him signing for Ramchatti Ramdas, that is to say, for the firm which admittedly belonged to both Ramchatti and Ramdas. On the first point, we must hold accordingly that the mortgage in question was validly executed by both the sons of Perganram.

The next question is a more difficult one, as to whether the capacity of the two sons to create the mortgage was affected by the grant of letters of administration to their mother Mussammat Kulwant. We have not been referred to any authority to show that merely because an estate is in the hands of an administrator, the beneficiaries are thereby rendered incompetent to deal with their interest in the estate. Sec. 211 of the Indian Succession Act, 1925, merely provides that the estate of a deceased person vests in his executor or administrator as such: these words “as such” are important and show that the vesting is not of the beneficial interest in the property, but only for purposes of representation. The present case is one of intestate succession and is not complicated by any question of the assent of the executor or administrator being necessary to complete the legatee's title (sec. 332). In such a case it does not in our opinion admit of any doubt that the beneficial interest vests in the heir-at-law and we are unable to find anything in the Indian Succession Act which limits the power of disposal of the heir-at-law over such estate, merely because a grant of administration has been made. Nor does the Transfer of Property Act make the interest of the heir-at-law in the estate property which may not be transferred.

The Appellants rely strongly on secs. 220 and 273 and particularly on sec. 216 of the Succession Act, but these are hardly of any avail. Sec. 220 merely deals with the point of time from which the title of the administrator as such takes effect, while sec. 273 only declares the conclusiveness of the grant as to the representative title of the grantee against all debtors of the deceased and all persons holding property which belongs to him. As for sec. 216, it enacts that after any grant of probate or letters of administration, no other than the person to whom the same may have been granted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased, until such probate or letters of administration has or have been recalled or revoked. In other words, it makes the executor or administrator the legal representative of the deceased. In fact the whole scheme of these and other provisions of the Act is only to provide for representation of the deceased's estate for purposes of administration and is not intended to cut down the rights of the beneficiaries. To put the matter in another way, the position is that where a grant of administration is made, the grantee is constituted the person competent and entitled to represent the persons beneficially interested in such persons. This, it may be pointed out, is recognised in Or. 31 of the Code of Civil Procedure, in so far as it lays down that in all suits concerning property vested in an executor or administrator, it will be sufficient ordinarily to make the executor or administrator party, but it also provides that the Court may, if it thinks fit, order the beneficiaries or any of them to be made parties. The rule in fact is to make the beneficiaries parties when the estate has been fully administered: see Clegg v. Rowland (9).

We do not think, therefore, that merely because in this case Mussammat Kulwant held letters of administration to the estate of Perganram, that fact by itself had the effect of taking away the power of Ramchatti and Ramdas to deal with their beneficial interest in the estate.

Even supposing that as a result of the grant of administration, the administratrix as the legal representative of the deceased was the only person competent to deal with the estate, it has still to be seen for how long this power of the administratrix would continue to the exclusion of the right of the beneficiaries. As already pointed out, all that sec. 216 of the Succession Act provides is that until the grant is recalled or revoked, no other person will have the right to act as representative of the deceased, but the right to represent the estate for the purposes specified in that section is not the same as the right to deal with the beneficial interest in the estate. Even taking the section as it stands, it is doubtful whether this may be regarded as lending any countenance to the proposition—once an administrator, always an administrator. The moment administration is completed, the purpose of the grant will have been fulfilled and the administrator would virtually become functus officio. It seems only reasonable to hold that thereupon the grant would stand revoked in effect, if not by a formal order of Court.

We may perhaps refer in this connection to the line of cases in which it has been held that where administration has been fully carried out, the Court would refuse leave to the administrator to sell or mortgage under sec. 90 of the Probate and Administration Act (V of 1881), corresponding to sec. 307 of the present Succession Act: In the goods of Nursing Chunder Bysack and Lakshmi Narain Chatterjee v. Nanda Rani Debi . The principle underlying the cases is the same on which the Court also refuses to make a grant of administration, if there is reason to believe that the estate has been fully administered: Lalit Chandra Chowdhury v. Baikuntha Nath Chowdhury and Prosonno Kumari Devi v. Ram Chandra Singh Deb . It is obvious that there must be a limit to the authority of an executor or administrator to act after administration is over: see the observations of Mitra and Brett, JJ., in Taran Singh Hazari v. Ramtaran Tewari , quoted with approval in Sankar Nath Mukherji…Petitioner v. Biddutlata Debi…Defendant . .

As the evidence stands in this case and particularly having regard to the long lapse of time, it may be fairly presumed and the Court will be entitled to act on the presumption that at the date of the mortgage, the administration of Perganram's estate was at an end and from this point of view the execution of the mortgage deed by Mussammat Kulwant as administratrix was of no consequence and that by the two sons of Perganram would, therefore, have full effect.

Seeing that Mussammat Kulwant was not the sole executant of the mortgage, it is not necessary to consider the matter from another aspect, viz., whether and how far, the beneficiaries having allowed the administratrix to remain in possession, in spite of administration being over, they could be heard to say that the administratrix was not competent to deal with the estate.

It is perhaps worth while pointing out that the Appellants do not make the case that the transaction in question was one in due course of administration. Mussammat Kulwant herself in fact said in her written statement that she knew nothing about the mortgage and she was supported in this by Ramdas in his deposition at p. 48, lines 11-14. The evidence also does not make out that the loan was raised for purposes of administration. Perganram admittedly had left no debts. He left a business, but there is nothing to show that any debts were or had to be incurred for it. In 1914 according to Ramdas the two brothers started a business in the name of Ramchatti Ramdas, which shows that the old business ceased at any rate in that year. According to the recital in the mortgage bond Exhibit 1, the purpose of the loan, as already pointed out, was to repay the dues of Lachmandas Purukchand under a previous mortgage Exhibit 2 and two promissory notes, Exhibits 3 and 4. As regards the promissory notes, Ramdas's evidence is that the money borrowed thereon was spent for the personal expenses of the brothers, to buy a motor cycle for one and race ponies for the other. As for the mortgage, the bond recites that it was for the prpose of repaying some previous loans. The document in respect of one only of such previous loans is in evidence, Exhibit 10 (Part II, p. 18), a mortgage for Rs. 4,000 dated the 12th May, 1910, executed by Mussammat Kulwant Bewa as administratrix and her two sons and according to the recital therein, purports to have been executed for satisfying in part an earlier mortgage for Rs. 6,000 in favour of a different party dated the 15th November, 1909. The mortgage-deed in respect of this last-mentioned transaction is not in evidence and apart from the fact that it is said to have been executed by Mussammat Kulwant as administratrix, there is nothing to show for what purpose that particular loan had been raised.

Taking all the facts and circumstances into consideration, we hold accordingly not only that at the date of the mortgage in suit, the estate had been fully administered, but that the loan was not required for purposes of administration. In this view of the matter, it is not necessary to consider whether the alleged execution of the mortgage by Mussammat Kulwant was valid or not, or whether the mortgage itself was invalid for want of sanction of the District Judge under sec. 307 of the Indian Succession Act. The objections taken by the Appellants in this behalf consequently fail.

There remains to consider the question as to whether and how far the mortgage is binding on Defendant No. 3 Rambiswas. As already pointed out, he had been born at the time of the mortgage and had acquired by his birth an interest in the mortgaged property which had devolved on his father and uncle (Ramchatti and Ramdas) from their father, but he was no party to the mortgage. The Appellants in fact show from the mortgage bond itself that it did not even purport to hypothecate the interest of Rambiswas in the property: what was mortgaged was only the “right, title and interest” of the executants, which meant that of Ramchatti and Ramdas, Mussammat Kulwant, though one of the executants, having admittedly no beneficial interest. As it is the Appellants' case that the mortgage was not executed for legal necessity, they argue, relying on the principle of the Full Bench decision in Sadabart Prasad v. Foolbask that the mortgage was wholly void. It was, however, conceded on their behalf, having regard to the fact that Rambiswas was the son of Ramchatti, that if it was shown that the mortgage was for the purpose of satisfying an antecedent debt of Ramchatti, not tainted with immorality, the mortgage would be binding on Rambiswas, even though he was no party to it and though the debt was a personal debt of Ramchatti. See Brij Narain v. Mangla Prasad and Lal Bahadur v. Ambika Prasad . The Appellants relied on the limited scope of the authority given by Ramchatti by the power-of-attorney, Exhibit N, which he granted to Ramdas to execute the mortgage and maintained that the mortgage-debt was only in part the debt of Ramchatti, namely, to the extent that it went to satisfy the prior mortgage in favour of Lachmandas Purukchand and not the two promissory notes. In that view, it was argued that Rambiswas could be held bound, if at all, only to the extent of the dues under the said prior mortgage. We have already held, however, that Ramdas had authority under the power of attorney to execute the mortgage on behalf of Ramchatti in its entirety and the debts under the two promissory notes were equally the debts of both the brothers. This argument, therefore, fails. It was next sought to be made out that the debts were immoral, but we agree with the learned Subordinate Judge and have already shown that this is not established. The only question that remains is whether the mortgage was for the purpose of discharging an antecedent debt of Ramchatti. As to this, we have no hesitation in holding that it was and the point was not seriously contested. Our conclusion, therefore, is that the mortgage is binding on Rambiswas as much as it was binding on Ramchatti and Ramdas. There must accordingly be a mortgage decree against Rambiswas as well as against Ramdas and Mussammat Kulwant as made by the learned Subordinate Judge.

So far as the puisne incumbrancers. Defendants Nos. 4 and 5, are concerned, as the money due on their mortgages had not become payable at the date of the suit, the learned Subordinate Judge did not adjudicate on the amount due to them.

The last contention raised on behalf of the Appellants was as regards the computation of interest, but as already stated, this was not finally pressed.

The result is that this appeal fails and is dismissed with costs.

R.C Mitter, J.:— I agree.

P.C