In this case the Appellant is the Plaintiff in a mortgage suit in which the Respondents are Defendants being the sons of the purchaser of two of the mortgaged properties. They need not be distinguished from their father and have been referred to throughout this appeal as Defendant No. 4.

The suit was dismissed in the lower Court on the grounds that the attestation of the mortgage deed has not been proved, and that the mortgage was not “true and bonâ fide.” Both points have been urged before us by the Respondent. Whatever we may think of the first the second is that on which the Respondent seeks to establish his claim in the first place. We will therefore deal with it first.

The bond was executed on the 23rd August 1893 by Mussamat Sharbat Koer as guardian of Bal Makund Das. He was the son of Janki Das, who died before 1883 when Mussamat Sharbat became guardian, and who carried on some kind of banking or money-lending business. This seems to have failed and Bal Makund at all events has now no resources of his own. When it failed does not appear; but at the date of the execution of the bond it seems that the family must have been in some need. The Respondent, i.e, Defendant No. 4 had filed a suit on the 17th September 1892 against Bal Makund and his co-sharers for Rs. 76,000 odd due on a mortgage deed, which shows that his mortgage security was not worth enforcing; and his connection with this suit is that after obtaining a money-decree in 1894 he brought two of the mortgaged properties to sale and purchased them himself. The deed being executed under these circumstances we will first consider whether it has been shown to be fraudulent. The ground for the allegation that it was so, is that no consideration passed, which shows that it was executed merely to protect the property in dispute from the claims of other creditors and particularly we may suppose those of the Respondent. The consideration alleged in the deed is twofold, first, a debt due to the mortgagee at Rs. 1,239-13-6 due on a hatchitta, secondly, an advance of Rs. 1,760-2-6 made by the mortgagee to provide for the expenses of certain litigation. As to the first of these, the debt of Rs. 1,239, it is suggested that it had no existence. We cannot accept this view, though the story told to prove it is by no means free from suspicion. The story of how it arose is told by Mussamat Sharbat in her petition to the Sub-Judge of Durbhanga for leave to execute the mortgage as a guardian. According to this one Asghar Ali had deposited money with the firm of Bal Makund's father, her husband, on the security of a hatchitta. They passed to Ali Khan his adopted son, and in his favour, she executed a hatchitta for of the sum on the separation of Bal Makund from his co-sharers on the 27th March 1883; this Ali Khan transferred to the Plaintiffs and as she could not raise the money when pressed, she executed a new hatchitta to them on the 27th March 1893, and at the time of the mortgage the amount due on this was Rs. 1,215-1-9. This is supported by a deed of gift, dated the 13th September 1887, by Agha Khan to Ali Khan comprising among other things a hatchitta for Rs. 2,500 by Bal Makund's father, and by a deed of sale, dated the 22nd March 1893, whereby Ali Jan transferred a chitta from Mussamat Sharbat for Rs. 1,250-1-9, to the Plaintiffs together with another from the other co-sharers' at only Rs. 14 less than their full value; The existence of the original debt on which Mussamat Sharbat's hatchitta is based seems to be proved by Agha Khan's deed of gift, and there seems to be no reason to doubt the genuineness of Ali Khan's deed of sale to the Plaintiffs: though it is impossible to suppose that the consideration is correctly stated. On the other hand none of the hatchittas have been produced and only the lamest possible excuses have been given for their non-production. Also when Mussamat Sharbat renewed the hatchitta to the Plaintiffs any claim that could be made on it was statute barred. These facts make the transactions leading up to the last hatchitta suspicious and we have no doubt that the true facts of the case have not been disclosed, as after the collapse of the original debtor firm the debt on the original hatchitta must have been worth very little and yet it is throughout treated as being practically undiminished. We cannot however treat the debt as extinguished, and at the time of the mortgage it may have been of advantage to the mortgagors to have it put an end to: and as she was acting as guardian and with the leave of the Court we cannot enquire into the sufficiency of the consideration.

The advance of Rs. 1,760 odd is said to have been made to Bal Makund a few days after the registration of the mortgage. The litigation in respect of which it was made was partly a suit against his uncle Janki Das of which we have no information at all and partly a suit to be brought against the Andoi Indigo concern for Bharna rent, which was eventually brought by Bal Makund after he had attained his majority in 1898, when it was time-barred.

These facts lead us again to suppose that the true facts of the case have not been disclosed. But they do not lead us to the conclusion that no consideration passed; but rather to the conclusion that the consideration alleged in the deed was not the true one, but rather one put forward possibly to justify Mussamat Sharbat in executing a mortgage which she ought not to have executed. This might give Bal Makund a right to relief against Mussamat Sharbat and possibly against the Plaintiff, but cannot confer any such right on the Respondent.

We must accordingly hold that it has not been shown that no consideration passed, and we cannot hold the mortgage void.

This leads us to the other point relied on by the Respondent, namely, that the mortgage deed was not attested by two witnesses as required by sec. 59 of the Transfer of Property Act. The facts seem to be that the attesting witnesses were on one side of the purda when the deed was executed and the executant on the other. Her son, Bal Makund, seems to have taken the deed behind the purda and to have come back with it signed. It has not been suggested that Mussamat Sharbat did not in fact sign the deed. On these facts we cannot hold that the deed was not attested merely because the witnesses did not see the executant sign. The case seems very similar to that of Harmongal Narain Singh v. Ganaur Singh, so far as the facts are disclosed in the judgment of Brett, J., except indeed that there was there specific evidence of a witness who saw the lady sign. Here there is none, but it is impossible to doubt that the attesting witnesses were satisfied by Bal Makund that the deed was signed by his mother. On appeal the judgment of Brett, J., was upheld on the ground that there was no evidence that the attesting witnesses did not see the executant; but Brett, J.'s judgment seems to have been passed on the assumption that they did not. Whatever may be the correct view to be taken of this decision we must hold that there was due attestation in this case. To hold otherwise would be to upset what we believe is a frequent practice in cases of the execution of deeds by purdanashin ladies and in many cases to make attestation of their signatures almost impossible. On these findings the question arises, what relief is the Plaintiff entitled to. The mortgage affects four properties. Of these Nos. 1 and 2 were purchased by Defendant No. 4 in execution of a money-decree under sec. 90 of the Transfer of Property Act sometime in 1899. Property No. 3 was sold for arrears of Government revenue on the 24th March 1899, and the surplus sale-proceeds were withdrawn by the mortgagor the Defendant No. 1 on the 9th September 1899. Property No. 4 was the “right to the profit of the Bharna rent of Mouzah Malikhpur, Pergunnah Saresa, due by the Shapur Andoi Indigo concern, Pergunnah Saresa, from 1292 to 8 annas kist of 1300 amounting to Rs. 5,742-5 ans. 3 pies under Sudhbharna bonds, dated 28th January 1885 and 25th July 1883, by Babu Bhup Narain Singh and others proprietors of the said mouzah.” It is not denied that Nos. 1 and 2 are liable to the mortgage debt, if any exists, as we have found it does though it remains to be considered how far their liability extends. As to No. 3 it has not been suggested that it was sold free of incumbrances; and it does not appear that the sale was due to the mortgagee's default. It follows, therefore, that on the payment of the proceeds the Plaintiff had a charge on Defendant No. 1's share of them which amounted to Rs. 182-1 and had a right to sue for that amount both under sec. 68(b) of the Transfer of Property Act and because the period for repayment under the mortgage had expired. The general prayer in the plaint covers a claim made in respect of the surplus sale-proceeds, the period of limitation that applies to such a suit is 12 years from the date when the surplus proceeds were realised, Kamala Kant Sen v. Abul Barkat and Upendra Chandra Singh v. Mohri Lal Marwari, and Defendant No. 1 is therefore liable in respect of the sum of Rs. 182 with the mortgage rate of interest at 12 per cent, till the date of realization.

As regards property No. 4 the Shapur Andoi concern was the debtor of Bhup Narain Singh and others who mortgaged the debt to Defendant No. 1, who again as we have seen, mortgaged his rights as mortgagee to the Plaintiff. The mortgage deed of Defendant No. 1 to the Plaintiff contained provisions safeguarding the mortgagee's right in case the mortgagor in any way realised the debt: but it did not contain any provision for what actually happened, which was that the mortgagor sued for the debt after his claim was time-barred and failed to recover anything; nor did it contain any express provision that the mortgagor should bring a suit at all, though as money was advanced to provide for the expenses of such a suit, an undertaking to this effect may be implied. Under these circumstances both Defendant No. 1 as creditor, and the Plaintiff as mortgagee were entitled to sue the debtor on the original debt. This depends on the principle laid down by Dr. Ghose in his work on Mortgage at p. 324 in reliance on the decision in Muthu Vijia Raghunatha v. Venkatachallam Chetti(4), that a sub-mortgagee is entitled to sue the mortgagor of his mortgagor as well as his mortgagor; for if this is so where a mortgage debt is mortgaged much more must it be so where the mortgage is of a simple debt. The question then arises what result follows from the Plaintiff's omission to get in the debt in question, and allowing it to become time-barred. The obligation on him to get it in is clearly expressed by Mr. Coote in “The Law of Mortgages,” Ch. XIX, sec. (ii), where it is pointed out that a mortgagee taking an assignment of a debt by way of mortgage “should be specially protected against the obligation which whether by analogy to a mortgagee in possession who is bound to account for what he might have received but for his own default, or to a creditor who, by giving time to the principal debtor, discharges the surety, would otherwise attach to him to get in the debt in due course, under penalty of being charged with the loss in case any arise through his default.”

As the Plaintiff entirely neglected this obligation he is accordingly chargeable with the loss that has occurred in his security. He cannot of course be liable therefore to Defendant No. 1 who is more in default than he is; but must be held liable to other holders of the mortgagor's rights in the remainder of the mortgaged property, so far as the loss of the security is concerned. They can accordingly call on him to make an apportionment; for “the mortgagees cannot claim to throw the entire burden upon a portion of the mortgaged premises, because by reason of their own latches they have lost their remedy as against the remainder,” per Mookerjee, J., in Imam Ali v. Baij Nath Ram. The result is that following the rules laid down in sec. 82 of the Transfer of Property Act the four mortgaged properties must be valued at the date of the mortgage, the value of No. 4 being taken as stated in the mortgage deed, namely, Rs. 5,742-5-3, and the principal of Rs. 3,000 being distributed on the four properties according to their respective values. Properties Nos. 1 and 2 will be liable for the amount of principal charged on them with interest at the bond rate until realization. Defendant No. 1 will be liable for Rs. 183-1 his share of the sale-proceeds of property No. 3, with interest from the date of his withdrawal of the same at the bond rate until realization. The portion of the debt chargeable on property No. 4 will be taken as discharged. The appeal is accordingly allowed, and the case is remanded to the lower Court in order that the apportionment may be made as provided above, and that a decree may be passed as directed. Costs in both Courts in proportion to the result will be given to the parties.

Appeal allowed;

Case remanded.