HEM CHANDRA ROY CHAUDHURY Vs. SURADHANI DEBYA CHAUDHURANI

JUDGEMENT

(1.) THE appellant, Hem Chandra Roy Chaudhury, was defendant No.1 in a suit: brought by respondent No.1 in the Court of the Subordinate Judge at Mymensingh to enforce a mortgage. THE suit was filed on March 6, 1931, and the mortgage deed (exhibit 1) was dated August 18, 1918. THE property mortgaged thereby was a taluk (Gangaram Rai) numbered 237 in the books of the Mymensingh Collectorate and comprising ten mouzas; also another taluk (Sambhu Chandra Roy) numbered 239 in the same Collectorate and comprising seven mouzas. THE mortgage deed had been executed in favour of the plaintiff by two persons as mortgagors-the appellant and his paternal grandmoth'er, an old lady whose name was Srn. Nabin Kishore Chaudhurani.

(2.) THE appellant had inherited the mortgaged properties, together with other properties, from his father at some date before 1914 while he was yet a minor. THE father's will, made in 1891, states that Nabin Kishore, the testator's adoptive mother, had managed and administered his zemindari and other properties during his minority and was efficient in doing all business relating thereto. THE appellant in 1913, on attaining majority, executed a trust deed (3rd Falgoon 1320 B.S.) vesting all his properties in her so that she might continue to manage them. Between 1914 and 1917 they had jointly borrowed considerable sums from the Maharaja of Mymensingh on four mortgage deeds. THE first of these mortgages dated in 1914 was paid off by money raised from one Anath Bandhu Guha by means of a mortgage (exhibit S) entered into on March 18, 1918, a few months before the mortgage in suit. THE other three mortgages were paid off by means of the mortgage in suit which was for the sum of Rs. 1,20,000-Rs. 1,00,423-4-6 due on the three mortgages already mentioned, Rs. 4,000 due on a note of hand to the plaintiff (respondent No.1) and Rs. 15,576-11-6 cash advanced. THE appellant and his grandmother in 1920 and 1923 had borrowed further sums from Anath Bandhu Guha under two mortgage deeds exhibits R and T.

(3.) NABIN Kishore was impleaded as defendant No.2 in the suit. She died on September 8, 1932, before the trial and the appellant was substituted in her place on September 13, 1932. The time originally allowed by the Subordinate Judge to the defendants for filing written statements was extended by him until June 4, 1931, on which day the Guha defendants put in a written statement. The appellant was given further time until the 25th. On that day he asked for still more time. The Subordinate Judge gave him two days only, remarking that he had had two and a half months already; also that he had no right to look into the Guha defendants' written statement before filing his own. (This may have meant no more than that he should file his own written statement independently in the first instance.) On June 29, NABIN Kishore filed her written statement and on July 6 the Guha defendants filed an amended pleading in which for the first time they sought to have their prior and subsequent mortgages enforced in the plaintiff's suit. On July 18 issues were framed, including an issue as to the sums due on the respective mortgages in favour of the plaintiff and of the Guha defendants. On August 29 an issue, not now of importance, was amended at the instance of NABIN Kishore. After her death in September, 1932, the appellant, who had filed no written statement on his own account, asked leave on November 1, 1932, to file a new written statement as her representative. He was given leave, but as he applied late, leave was only given on the terms that he could take no fresh ground of defence apart from those already raised by her previous written statement. He filed a written statement on November 14, 1932, of which paragraphs 5 to 7 setting up an interest of third parties in the mortgaged property was struck out by order of November19.