Appeal No. 366 of 1913
Mullick, J.@mdashOne Mohammad Zamiruddin had three sons, Mohammad Ibrahim, Mdhammad Mohsin and Nazir Ahsan. Bibi Nagin defendant No. 1 was the wife of Ibrahim; Bibi Soghra defendant No. 4, the wife of Mohammad Mohsin, and Bibi Gaffuran defendant No. 5, the wife of Nazir Ahsan. Defendants Mobarakunnissa and Zaibunnissa Nos. 6 and 7 are the daughters of Mohammad Ibrahim. One Mohammad Aril is the husbland of Mobarakunnissa and Badrud-doja defendant No. 3 is the husband of Zaibunnissa and the son of Nazir Ahsan. Defendant No. 10 is the son of Mobarakunnissa. Defendant No. 11 is the son of Mohammad Mohsin; and defendants Nos. 8 and 9 are the sons of Badrud-doja.
2. On the 28th of October 1894 Mohammad Ibrahim, Mohsin and Nazir Ahsan executed a mortgage bond in favour of one Lachmi Pressed charging 2 1/2 annas of their proprietary interest in Moszah Shivpur Rupnarain; 2 annas 10 pies in Rasulpur Khandaul; and 2 annas in Mouza Surangpur. It was recited in the bond that the money was being borrowed for the payment of the purchase money of a property which had been purchased by the executants in the name of Musammat Nagin. There was a preliminary decree on that mortgage in August 1902, That preliminary decree was made absolute and the sale in execution of it was fixed for the 3rd of August 1903. It became necessary thereupon for the family of the executants to borrow money for the purpose of avoiding the sale and accordingly on the 29th of July 1903 Ibrahim, Mohsin and Badrud-doja the son of Nazir Ahsan who was then dead executed a mortgage-bond in favour of the present plaintiff Mahabir Prasad charging four properties, namely 4 annas 4 pies odd in Mouzah Sandes Gangapur; 11 annas 6 dams odd in Mouzah Surangpur; 8 annas in Mouzah Shivpur Rupnarain and 8 annas 6 pies in Mouzah Rasulpur alias Khandaul. In this bond Musammat Nagin, although she had no proprietary interest in these properties, also appears as an executant. She now denies execution. The amount of the mortgage loan was Rs. 4,182-8-0. Out of this sum Rs. 2,774 went towards paying the previous mortgage in favour of Lachmi Prasad and the remainder was spent on various other expenses. The present suit is upon the second mortgage and was filed on the 1st of June 1911. Separate written statements were filed by defendants Nos. 6 and 7, defendant No. 3, defendant No. 8, defendant No. 5, defendant No. 1, defendant No. 2 and defendants Nos. 4 and 11. The issues framed in the case were as follows:
(1) Are the bonds in suit genuine and were they executed for consideration?
(2) Did any part of the consideration money remain unpaid in the case of either of the bonds?
(3) Did the defendant No. I execute, the bonds? Are they binding on her?
(4) Was the defendant Badrud-doja a minor at the date of the execution of the bonds? Is he estopped from pleading his minority?
(5) Is the mokarari deed propounded by the defendants Nos. 1,6 and 7 bona fide and valid?
(6) Is the plaintiff entitled to claim compound interest? If so, to what period?
(7) Against which of the defendants, if any, is the plaintiff entitled to a decree?
(8) To what relief, if any, is the plaintiff entitled, in each of the two suits?
3. The learned Subordinate Judge came to the conclusion that the bond in suit had not been signed either by or under the authority of Musammat Nagin. He also found that an the 11th of June 1900 Ibrahim had executed a mokarari deed transferring to his wife Nagin and to his daughters Mobarakunnissa and Zaibunnissa the whole of this interest in the ancestral family property inclusive of the properties covered by the bond now in suit, and he held that the plaintiff''s mortgage was subject to the mokarari interest of these ladies to the extent of the share of Ibrahim. In the end he decreed the suit with the modification that instead of compound interest he allowed simple interest at the rate of 24 per cent. He directed that defendants Nos. 1, 2, 3, 6, and 7 were to be bound by the decree and that the suit should be dismissed as against defendants Nos. 4, 5, 8, 9, 10 and 11, The present appeal is preferred by the plaintiff.
4. Before us Mr. Mustafa appears on behalf of Zaibunnissa defendant No. 7 and Mr. Mohammad Tahir appears on behalf of defendant No. 3 Badrud-doja and of Zaibunnissa. Defendant No. 1 Musammat Nagin did execute a vakalatnama in favour of Mr. Mohammad Tahir; she is now dead. The other respondents do not appear.
5. On behalf of the appellant the first and most substantial question that has been argued before us is whether the heirs and representatives or defendants Nos. 1, 6 and defendant No. 7 are entitled to set up the mokarari executed by Ibrahim in June 1900.
6. Mr. Mullick on behalf of the appellant relies on Section 74 of the Transfer of Property Act and contends that as the money advanced by his client was applied towards paying off the dues of the first mortgagee, he is entitled to step into the shoes of that mortgagee and to claim the property free of the encumbrance created by the mokarari of 1900. Now the law upon this subject has been frequently laid down and I need only refer to the decision of their Lordships of the Privy Council in Dinobundhu Shaw Chowdhry v. Jogmaya Dasi 29 C. 154 ; 12 M.L.J. 73 ; 4 Bom. L.R. 238 ; 29 I.A. 9 ; 6 C.W.N. 209 (P.C.) where their Lordships observe that When the owner of an estate pays charges on the estate, which he is not personally liable to pay, the question whether those charges are to be considered as extinguished or as kept alive for his benefit is simply a question of intention. The intention may be found in the circumstances attending the transaction or may be presumed from a consideration of the fact whether it is or is not for his benefit that the charge should be kept on foot."
7. We have, therefore, in the present case to consider whether it has been established that it was the intention of the plaintiff to keep alive the previous mortgage for his own protection. Now it is to be observed at the outset that there is not a word in the plaint signifying any intention on the part of the plaintiff to keep alive the mortgage of 1894. Indeed the case made by the plaintiff there is that the mokarari was executed after his mortgage, and that was the substantial case upon which the plaintiff went to trial in the Court of the learned Subordinate Judge. It will be seen from the issues which I have enumerated above that there was no intention on the part of the plaintiff to rely in the Court below, certainly at the stage of framing issues, upon any rights accruing from the first mortgage. Now let us see what was done in the course of the trial. It appears that during the examination of the plaintiff''s son a question was put to him by his Pleader asking what was his object in advancing the money upon the second mortgage, and the answer given by the son was that his object was to be put in the position of the first mortgagee in all respects. The question was disallowed by the learned Subordinate Judge, and it is now argued that if the plaintiff had been allowed to develop his case and to give evidence of intention he would have been able to establish that it was his intention to keep alive the first mortgage. But in view of the issues raised and the pleadings it seems to me that the learned Subordinate Judge was right in excluding the question. It does not appear that the first mortgage was intended to be set up as a shield at any stage in the Court below and the question that was asked and disallowed may have been in the nature of random enquiry, the relevancy of which was not brought home to the mind either of the parties conducting the suit or of the Court. If the point had been squarely and broadly raised, it is impossible to conceive that the learned Subordinate Judge would not have applied his mind to the determination of the simple question of fact, namely, whether or not the intention of the plaintiff was to keep alive the first mortgage. It was for the parties to put their case in a form which is directly intelligible to the Court and if, they omitted to do so, I am afraid we cannot give them any relief here. The point, no doubt, has been very forcibly argued by the learned Vakil for the appellant. The memorandum of appeal also contains a distinct ground on the point, but it was for the appellant to ask the Trial Court to come to a clear finding upon it. That he did not do.
8. Then we are asked to examine the evidence ourselves and to see whether without remanding the case we can come to the conclusion that the plaintiff intended to keep alive the first mortgage as a shield. The evidence upon which the learned Vakil for the appellant asks us to rely is first of all a petition, dated the 1st of August 1903, made to the Court which was executing the decree on the mortgage of 1894. In that petition the fact is recited that the money had been borrowed from the present plaintiff for the purpose of paying off the previous mortgage and there appears an admission at the bottom of the petition by the decree-holders in the suit admitting the receipt of the money, There is a recital to the same effect in the body of the mortgage-bond under consideration in the present case. That also recites that the money was borrowed for the purpose of paying off the previous bond. But these circumstances are not sufficient in themselves to establish affirmatively the plaintiff''s intention. Having regard to the fact that the plaintiff nowhere mentions his intention to keep alive the mortgage in his plaint and having regard to the fact that Ibrahim had already three years before executed the mokarari, it is impossible to conceive that it was the intention of Ibrahim that the plaintiff should use the first mortgage as a shield for destroying the mokarari. Ibrahim''s object was from the outset to make provision for his wife and children and he executed the mokarari deed in order that his brothers might not get any part of the property. Is it likely that when Ibrahim executed the second mortgage it was his intention that the plaintiff should be put in the position of the first mortgagee and thereby obtain the property free of the encumbrance created by the mokarari? It is argued by the learned Vakil for the appellant that what we have to look at is not the intention of the mortgagor but the intention of the second mortgagee. But as I understand the decisions of the Privy Council upon this point and in particular the judgment of their Lordships in Mohesh Lal v. Mohant Bawan Das 9 C. 961 ; 10 I.A. 62 ; 13 C.L.R. 221 ; 7 Ind. Jur. 382 ; 4 S. P.C.J. 424 ; 4 Ind. Dec. 1291 (P.C.) the intention that is to be established is the intention of the parties, that is to say, the mortgagor and the mortgagee. In the present case it does not appear to me that the plaintiff has established any agreement between himself and the mortgagor that the first mortgage is to accrue to him.
9. Then there is the further fact that the mokarari was registered and it was possible at any moment for the plaintiff to go to the Registry Office and to inspect it. The presumption is that the plaintiff did so and took the second mortgage subject to the mokarari and that for that reason he set up the case in his plaint that the mokarari was created not before but after his mortgage.
10 Then there is the circumstance that Musammat Nagin was joined in the bond. The plaintiff says that she was joined because it had been alleged in the first mortgage that she was a benamidar in respect of Mouzah Sandes and the plaintiff thought that she might possibly have some title to that, mouzah and that he had better join her in the bond too. On the other hand, it appears that Musammat Nagin had never, registered her name in the Collector''s books and even in the first mortgage in which the necessity for borrowing the money from Lachmi Prasad is. recited it was expressly stated that she was a mere benamidar. I am inclined to suspect that the plaintiff had notice of the mokarari in suit and thought it better to join Nagin in his bond, so that she might be bound by some sort of estoppel and be precluded from afterwards setting up the mokarari as an encumbrance against the plaintiff''s mortgage. Therefore on the simple question of fact as to whether there was an intention on the part of the plaintiff to keep alive the first mortgage my finding is against the plaintiff, and this practically disposes of the principal point in the appeal.
11. The second point is whether Nagin did or did not sign the bond on the 29th of July 1903. The learned Vakil appearing before us for Musammat Zaibunnissa states that Nagin only claimed as mokararidar and that she did not claim the proprietary interest in any of the properties. If that is so, then the plaintiff has no particular object in obtaining a decree against her heirs, except so far as they are representatives of the other executants of the mortgage. But the learned Subordinate Judge has gone into evidence and come to the conclusion that Ibrahim signed Musammat Nagin''s name without her authority and consent. She has deposed in the present case and there is no rebutting evidence on the other side. As the evidence stands, I think the learned Subordinate Judge was perfectly right in holding that she was not a party to the mortgage-bond.
12. Then there remains the question of interest. The learned Vakil appearing for one of the respondents before us pleads that compound interest has been rightly disallowed by the learned Subordinate Judge, because the original draft of the mortgage did not contain any stipulation as to interest and the provision as to compound interest was inserted into the fair copy without the knowledge of the executants. None of the executants deposes in the case. Badrud-doja son of Nazir Ahsan does depose, but he knows nothing about how the interest came to be inserted or what the arrangements about it were. When a party signs a bond and gets it registered, the onus of showing that there was any fraud or misrepresentation connected with the terms of the bond lies heavily upon him and in this case there is no evidence whatsoever to rebut the statements contained in the document. In my opinion the learned Subordinate Judge has given very inadequate reasons for holding that simple and not compound interest was intended. The decree, therefore, of the learned Subordinate Judge will be amended and interest will be calculated in the manner stipulated in the bond.
13. There remains one other question, namely, which of the defendants impleaded in the Court below are to be bound by the decree. Now it is admitted that owing to the deaths of Ibrahim and Nazir Ahsan and of some of their heirs all the defendants except defendants Nos. 8 and 9 now have an interest in the property; they must, therefore, be bound by the mortgage decree. As for defendants Nos. 8 and 9, it does not appear that they have any interest in the property at present. But it is contended on behalf of the plaintiff that it may possibly be that they will hereafter acquire some interest and that as a safeguard he ought to get a decree in their presence as they are members of the family. I think the learned Subordinate Judge''s decision with regard to these two defendants is correct and the suit must be dismissed as against them. With regard to the other defendants they must be bound by the mortgage-decree. The appeal will, therefore, be decreed in this modified form; each party bearing its own costs.
Appeal No. 387 of 1913
Mullick, J.
14. The facts of this appeal are connected with Appeal No. 366 of 1913, and the only question that we are asked to decide is whether compound interest should be allowed or not. We have already decided that compound interest should be allowed in Appeal No. 366 and Appeal No. 387 will, therefore, be decreed with costs. All the defendants except defendants Nos. 8 and 9 will be bound by the mortgage-decree. Costs will be assessed at three gold mohurs.
Jwala Prasad, J.
15. I agree.
