JAI SINGH RAIS Vs. HARNAM DAS

JUDGEMENT

(1.) This is a defendant's appeal from the decision of the learned Civil Judge, Dehra Dun decreeing the plaintiff's suit for the enforcement of a mortgage bond. The facts are these. The plaintiffs Harnam Dass, Ramanand and Vishwanath alleged that the first defendant Bawa Takhat Singh (the fourth respondent in this appeal) mortgaged several properties in their favour as security for a sum of Rs. 9,000 borrowed by him. The properties were in Pakistan except one house in Mussoorie known as Oakleaf. The mortgage deed was executed at Lahore on 28-4-1939 and registered at the office of the Sub-Registrar. An entry was also made in the register of the District Registrar of Saharanpur and, the sub-Registrar of Mussoorie. Under the terms of the loan interest was fixed at one rupee per cent per mensem simple, and the entire amount together with interest was payable on demand.

(2.) The plaintiffs alleged that they instituted a suit for the enforcement of the mortgage in the Court of the Sub-Judge First Class, Lahore in 1947 but were forced to migrate to India after the outbreak of communal disturbances, and consequently the suit was dismissed for default under Order 9, Rule 3, Civil P. C., on 7-4-1948. They also alleged that the original mortgage deed had to be filed in Court in Pakistan in connection with some litigation between the mortgagors and mortgagee and was not available; hence a copy of it was filed with the plaint in this suit. The plaintiffs also stated that the mortgage was in favour of one of the brothers Purshottam Dass (the second defendant) but it was the joint property of Purshottam Dass and the plaintiffs, and under a subsequent partition the amount due under it was allotted to the share of the plaintiffs. The third, fourth, fifth, sixth and seventh defendants were impleaded as subsequent transferees of the property in suit as they were interested in the equity of redemption. The plaintiffs alleged that the mortgagor had made no payment whatsoever either on account of principal or interest and that a sum of Rs. 11,880 had accrued as interest. Adding a sum of Rs. 120 as expenses incurred for compulsory registration of the mortgage deed, the plaintiffs claimed a sum of Rs. 21,000 as due to them. However, as only the Kothi called Oakleaf in Mussoorie was within the-jurisdiction of the Court and all others situate in Pakistan, they asked for a decree under Order 34, Rules 4 and 5, Civil P. C., for the sale of this property. The suit was contested only by the 6th and 7th defendants who were the transferees of the original mortgagors. The other defendants did not even file a written statement. However the second defendant, who is a brother of the plaintiffs, appeared and supported the plaintiffs' suit and filed a written statement to this effect. He also gave evidence in favour of the plaintiffs. The 7th defendant also pleaded that he was a bona fide transferee for value without notice and, in the alternative, entitled to marshalling under Section 56 of the Transfer of Property Act. 2. The learned Civil Judge rejected all the pleas of the defendants. He held that the present plaintiffs had acquired the right to recover this loan under a partition award, that the suit was not barred, that the mortgage was for consideration, that the 7th defendant was not a transferee without notice and that he could not claim the right of marshalling as this would prejudice the plaintiff's rights as mortgagees. Accordingly he decreed the suit for Rs. 20,880 with proportionate costs and interest pendente lite and future at 12 per cent. per annum on the principal amount till six months from the date of decree, and thereafter at 3 per cent. The first defendant and defendants 3 to 7 were directed to pay the amount of the decree within six months, and in case of their default a final decree was directed to be passed after six months and the plaintiffs held entitled to realise the decretal amount by the sate of the property. Against this decision the sixth defendant, one of the transferees of the mortgagor, has come to this Court in appeal.

(3.) Mr. G.P. Bhargava, learned counsel for the appellant urged the following arguments in support of this appeal ; that the plaintiffs had no right to sue as the partition award allotting this claim to them had not been made a decree of the Court; that the mortgage deed was not a genuine document; that the execution of the mortgage had not been properly proved and the learned Judge should have admitted secondary evidence in proof; that the appellant was a transferee for value without notice; and that in any case he was entitled to the right of marshalling. We have heard learned counsel at some length but we see no reason to differ from the view of the learned Judge before whom all these arguments were advanced.